Saturday, Nov 01, 2014

Coastal Alliance for Species Enhancement asks Superior Court Judge for Help

Released, November 9, 2010

Coastal Alliance for Species Enhancement asks Superior Court Judge for Help

San Mateo, Ca – Yesterday, the Coastal Alliance for Species Enhancement (“CASE”) filed a lawsuit in San Mateo County Superior Court requesting that the Court order the Governor as well as the Resources Agency, State Parks, and the Department of Fish and Game to comply with and enforce the California Endangered Species Act in the mismanaged, state-owned Pescadero Marsh Nature Preserve located on the coast of San Mateo County.

“This is not a step we took lightly. However, after reviewing e-mails received through Public Records Act requests, it is apparent that long-time, ongoing, violations of the laws protecting endangered species and public trust resources have been willfully ignored in order to protect the state agencies themselves,” said Steve Simms, President of CASE. “State Parks should not be afforded special treatment by its sister state agencies, the Secretary of Resources, or the Governor. If the agencies charged with protecting California’s species and ecosystems refuse to do their jobs, we must hold them accountable for the sake of the environment and all of California’s citizens.”

CASE names the Resources Agency, State Parks, and the Department of Fish and Game along with their Secretary and Directors for creating and then perpetuating the precipitous decline in San Francisco garter snake habitat and populations and the entire Marsh ecosystem. Once they knowingly created this situation, they ignored the crisis to the point of eminent disaster. The snake only exists within San Mateo County and is also a fully protected species under the Fish and Game Code. CASE names the Governor under the Public Trust Doctrine as well as the California Constitution for failing to ensure that the laws of the state are enforced.

“This is a case where State Parks altered the marsh in the 1990’s and created an environmental calamity. Perhaps more alarming is the fact Fish and Game, the agency charged with enforcing the laws for state listed species has know about these violations for years and, for political reasons, has failed to enforce the laws against State Parks who is a sister Agency under the Resources Department,” said Ronda Azevedo Lucas, CASE’s attorney. “If a private citizen owned this marsh, they would likely be in jail.”

This Marsh belongs to the people of the State of California, and the Governor and the named agencies are responsible to hold this land and its species in trust for the people and for future generations. The San Francisco garter snake is not the only endangered, threatened or protected species in peril. The California red-legged frog, Tidewater goby, Coho salmon, and the Steelhead trout are also at the critical state of collapse. “For nearly two decades we have tried to get someone, anyone, from the State to fix the Marsh. Species should not be condemned to death. The Snake and the entire Marsh ecosystem cannot afford any further delay,” Simms added.

CASE is a California non-profit, public benefit corporation, located in Pescadero, California.
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Notice of Intent

Lucas Law
19738 AUGUST AVE. • HILMAR, CA 95324 • T: 916.468.8208 • F: 209.656.7844

October 27, 2010
Via Electronic Mail and First Class Mail

The Honorable Arnold Schwarzenegger Mr. John McCamman
Governor Director
State of California Department of Fish & Game
State Capital Building 1416 Ninth St., 12th Floor
Sacramento, CA 95814 Sacramento, CA 95814
e-mail: Governor@governor.ca.gov e-mail: Director@dfg.ca.gov

The Honorable Lester Snow Ms. Ruth Coleman
Secretary Director
CaliforniaNatural Resources Agency California State Parks & Rec.
1416 Ninth St., Ste. 1311 P.O. Box 942896
Sacramento, CA 95814 Sacramento, CA 94296
e-mail: Secretary@resources.ca.gov e-mail: Director@parks.ca.gov

RE: Notice of Intent to Petition the Court for Writ of Mandate
Ordering Compliance with the California Endangered Species
Act, Cal. Fish & Game Code § § 2050, et seq., and the Public
Trust Doctrine

Dear Messers. Schwarzenegger, Snow, McCamman, and Ms. Coleman:

I am writing on behalf of Coastal Alliance for Species
Enhancement (“CASE”). CASE is a California non-profit organization
formed by a group of concerned citizens and conservationists, many of
whom reside in and around the Pescadero area of San Mateo County.
CASE aims to reverse the population decline of native coastal and marine
species and enhance and restore their habitat. One of CASE’s main
objectives is the preservation of the biological diversity of California’s
coastal environments while working to ensure continued public enjoyment
of these areas.

This notice involves the California Department of Parks and
Recreation’s (“Parks”) operation of the Pescadero Marsh (“Marsh”) and
the adverse impacts caused by the State of California, the California
Resources Agency (“Resources”) and the California Department of Fish
and Game’s (“DFG”) complacency in allowing Parks’ failed management
of and activities within the Marsh to destroy protected resources. These
agencies’ actions (or lack thereof) have resulted and continue to result in
the systematic destruction of the entire Marsh ecosystem and the species
and habitat that exist therein, including but not limited to devastating,
illegal impacts on the Coho Salmon – Central California Coast ESU
(Oncorhynchus kisutch), and San Francisco garter snake,
(Thamnophissirtalis tetrataenia) species, both of which are listed as “endangered” under
the California Endangered Species Act (“CESA”), Cal. Fish & Game Code § § 2050, et seq.1

The Marsh is a 340-acre coastal wetland in San Mateo County presently owned and
managed by Parks. In the past several decades, Parks has implemented projects in an attempt to
restore the Marsh. Unfortunately, however, restoration work implemented by Parks in the 1990s
as part of the Pescadero Marsh Natural Preserve Hydrological Enhancement Project has resulted
in unexpected changes in both the Marsh’s physical structure and ecological functions. These
changes have led to the existing problems we currently face in the Marsh including the alteration
of the natural formation of sandbars. This alteration has created an unnatural seasonal delay in
the sandbar formation causing the formation to occur in late fall as opposed to early summer. In
turn, this late sandbar formation has resulted in a strongly salinity stratified system in fall with
severe hypoxia and anoxia problems in the lagoon and with drying of most of North Marsh
throughout the summer. Moreover, the inadequately built “low levee” separating the North Pond
from the North Marsh has further eroded and completely fails its sole task of keeping the saline
water from entering the North Pond.  These situations have prevented the areas from being use
by red-legged frogs and San Francisco garter snakes. Importantly, red-legged frogs are the San
Francisco garter snakes’s primary food source. The health of the snake population is dependent
upon the health of the red-legged frog population.

Studies have indicated the abundance of red-legged frogs and San Francisco garter snakes
in the Marsh has possibly been reduced by eighty percent. Similarly, there are indications
tidewater goby abundance has been reduced by eighty percent within the Marsh. The most
telling indicator of the absolute ecological crisis Parks has created in the Marsh is the nearly
annual fish kills during winter sandbar breaching. Importantly, none of these problems existed
prior to Parks’ activities.

Despite numerous agency findings, reports, scientific studies, and continued press
coverage describing the illegal and continued takings of endangered species as defined by Cal.
Fish and Game Code § 20804, neither you in your official capacities nor any of your agencies
have taken any enforcement actions or imposed any mitigation requirements to ameliorate Parks.

1. The Marsh is home to a number of other species, including the federally endangered and California
species of special concern Tidewater goby, Eucyclogobius newberryi, the federally threatened and
California species of special concern California red-legged frog, Rana aurora draytonii, and the federally
threatened Central California Coast Evolutionarily Significant Unit of Steelhead trout, Oncorhynchus
mykiss irideus. However, this notice of intent pertains solely to the CESA listed species of coho salmon
and San Francisco garter snake.

2. Importantly, Parks failed to build the “low levee” to its originally designed height. Thus this project by
Parks immediately destroyed known habitat for red-legged frogs and San Francisco garter snake.

3. A sampling of the news articles published chronicling the ongoing ecologic crisis Parks has created in
the Marsh is attached hereto as exhibit 1.

4. “No person shall import into this state, export out of this state, or take, possess, purchase, or sell within
this state, any species, or any part or product thereof, that the commission determines to be an endangered
species or a threatened species, or attempt any of those acts, except as otherwise provided in this chapter,
the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of this code), or in the
California Desert Native Plants Act (Division 23 (commencing with Section 70500) of the Food and
Agricultural Code).” Cal. Fish & Game Code § 2080.

illegal activities. Parks has failed to procure any authorization from DFG pursuant to Cal. Fish
& Game Code § § 2080.1 and 2081. Equally troubling, DFG and Resources have known of the
illegal take and have failed to exercise their mandatory duty to enforce the CESA and carry out
their Public Trust Doctrine responsibilities against a sister agency.

5. See Watershed Enforcers v. California Department of Water Resources (2007) Alameda County
Superior Court, Case No. RG06292124, a true and correct copy of which is attached hereto as Exhibit 2.
(Affirmed, although appeal was rendered moot because of the issue’s general public interest in whether a
state agency qualifies as a “person” within the CESA’s context) Kern County Water Agency, et al. v.
Watershed Enforcers (2010) 185 Cal. App. 4th 969.

6. A sampling of documents obtained through Public Records Requests which directly implicates that your
agencies are aware of illegal and ongoing taking of species, and that enforcement is warranted and
necessary is attached as Exhibit 3.

In response to Public Records Act Requests submitted to your respective agencies, no
evidence exists that Parks has obtained a consistency determination or other authorizations from
DFG addressing the take of CESA listed species. CESA prohibits each of you in your official
capacities from the taking of listed or endangered species unless authorized by DFG.5 Currently,
Parks has not obtained authorization from DFG to take, incidentally or otherwise, any species
from the Marsh. Because Parks has failed to obtain the requisite authority to incidentally take
those listed species each of you in your official capacities are violating CESA’s nondiscretionary
prohibition on taking or possessing such species. Unlike the federal Endangered Species Act, 16
U.S.C. Section 1531 et seq., CESA requires any impacts of any authorized incidental takes to be
both minimal and fully mitigated. Cal. Fish & Game Code §2081 (2).

Responses provided through Public Records Act requests 6 demonstrate your agencies and
each of you in your official capacities have been and are aware that no determinations or other
authorizations exist and that the illegal and continued taking of species has and is occurring in
the Marsh. Your agencies and each of you in your official capacities have been and are aware
that DFG has failed and continues to fail to enforce the CESA against a sister agency. Parks’
desire to further study this situation in an unacceptable response considering the problems first
occurred nearly two decades ago. CESA does not allow for “study” of take — CESA requires
enforcement against take activities.

The waters, streams, lakebeds, and the fish and wildlife in the State of California belong
to the people of California and the State holds those resources in trust for the people and for
future generations. These resources are held in trust by the State as trustee for the people of
California. Specifically, the Legislature has declared, “that the protection and conservation of
the fish and wildlife resources of this state are of utmost public interest. Fish and wildlife are the
property of the people. . . .” Cal. Fish & Game Code § 1600. By your conduct (or lack thereof)
you and your agencies are violating the Public Trust by allowing the destruction of the Marsh
and the species therein which are Public Trust resources.

On October 1, 2010, CASE informed you that the sandbar had closed at the mouth
resulting in the imminent, continuous and unlawful take of these species. By way of that letter,
CASE requested a meeting to address the impending ecological disaster. To date, this request
has been completely ignored. Now, with the recent winter storm that was experienced within the
Marsh this week as well as the forecast of an additional winter storm occurring as early as
tomorrow, an absolute emergency exists.
If you do not act, take will, once again, occur unlawfully.

Accordingly, CASE hereby places each of you individually in your official capacities as
well as each of your respective agencies on notice that unless you and the agencies enforce your
duties and obligations under California’s Public Trust Doctrine and comply with the
requirements of CESA by either ceasing all take of listed species or obtaining the authorizations
from DFG for incidental takes provided by CESA within 72 hours, CASE intends to file a
petition for writ of mandate in Superior Court requesting declaratory, mandamus and other
appropriate injunctive relief.

If you have any questions regarding this notice, please feel free to contact me at 916-468-
8208. Although CASE does not currently intend to delay filing a lawsuit, we would be willing to
meet with you and your authorized representatives with decision-making authority to discuss any
possibility of resolving this dispute short of litigation. If you are interested in meeting, you
should contact me immediately.

Sincerely,

RONDA AZEVEDO LUCAS
Attorney for Coastal Alliance for Species Enhancement

Attachments
cc: The Honorable Dianne Feinstein, U.S. Senator
The Honorable Jerry Brown, California Attorney General
Mr. Steve Simms, Coastal Alliance for Species Enhancement

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Help to Restore the Marsh!




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*ESTIMATES: STEEHEAD REARING*
*click to view

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Heron and other predatory birds were seen feeding on the shorelines.

November 25, 2010

January 3, 2008

KGO news report 2010

KGO news report 2003