Legal Effort Barely Saves Endangered Wild Franciscan Manzanita

By Laura Horton, 3rd Year GGU Law Student

The Franciscan manzanita is an evergreen shrub endemic to bedrock outcrops of maritime scrub in San Francisco. The native plant was thought to be lost in the wild over six decades ago due to expanding urban development. Efforts were made to save the plant and preserve cuttings. For instance, in 1947 a famous botanist stood in front of earth-moving equipment to collect what were assumed to be the last wild plants from a construction site, which were then sent to a botanical garden. Several cuttings still exist in botanical gardens today, but wild Franciscan manzanitas were thought to be lost forever. Although the plant was petitioned for Endangered Species Act (ESA) protection by the Smithsonian Institution in 1975, and proposed for listing by the Fish and Wildlife Service in 1976, 41 Fed. Reg. 24524, 24541(June 16, 1976), the species was never protected under the ESA.In late 2009, Dr. Daniel Gluesenkamp, then Director of Habitat Restoration for Audubon Canyon Ranch (now Director of CalFlora Database), was driving along the Doyle Drive near the Presidio when he spotted what looked like a Franciscan manzanita. After further inquiry, he found that it was indeed the lost plant, and he took immediate steps to protect it from a development project. Individuals, organizations and government worked together to move the plant to a safe location within the Presidio. However, some thought that the plant needed even more protection.

In December 2009, several environmental organizations, including Wild Equity Institute, the Center for Biological Diversity, and the California Native Plant Society, filed an emergency petition with the United States Fish and Wildlife Service (FWS) to list the Franciscan manzanita as endangered under the ESA on an emergency basis. The FWS declined to list the plant on an emergency basis, but proceeded with the regular listing process.

The FWS released a 90-day finding, 75 Fed. Reg 48294 (Aug. 10, 2010), which found that listing the plant as endangered may be warranted under the ESA. However, December 2010 came and went, with no indication that the required 12-month finding would be released by the end of the year. The Wild Equity Institute warned the FWS that if the 12-month finding was not released within a reasonable time, then legal action would be taken. The FWS then sent a letter to Wild Equity Institute stating that the petition would be processed by the end of the summer of 2011.

However, during that time the FWS had an enormous settlement with the environmental organization WildEarth Guardians in a separate ESA lawsuit, requiring them to process hundreds of backlogged ESA petitions over the next several years. The settlement included a Critical Habitat Work Plan for Fiscal Year 2011 and 2012. The Franciscan manzanita was not on the list, nor was it included in the long-term work plan for a second similar FWS settlement with the Center for Biological Diversity. In light of this discrepancy between the FWS work plans and its assurances that the petition would be processed, Wild Equity Institute decided to move forward with the case. The lawsuit was filed against the FWS for delay on the 12-month finding.

As the lawsuit proceeded, the FWS continued to send assurances that they would process the petition. However, it is widely known that the FWS suffers from resource strains, particularly in light of the two major settlement agreements to process hundreds of ESA petitions. It was unclear to interested parties whether the FWS would or could actually follow through without legal pressure. Finally, the Wild Equity Institute filed a Motion for Summary Judgment, and the FWS could no longer avoid its duties.

On September 8, 2011, the FWS proposed to list the Franciscan manzanita as endangered under the ESA. 76 Fed. Reg 55623 (Sept. 8, 2011). The FWS did not propose to designate critical habitat based on lack of information as to the physical and biological needs of the plant. However, certain historic localities of the plant are well-known, including the former Laurel Hill Cemetery, the former Masonic Cemetery (near Lone Mountain), and Mount Davidson, in the south-central part of San Francisco. Information about these locations could inform the FWS enough to designate critical habitat, and those participating in the public commenting may be able to persuade them.

Although there were significant roadblocks for the Franciscan manzanita supporters, this native urban plant success story is hopeful in the face of the FWS’ struggle to keep up with its responsibilities. It is unclear how the two major settlements will affect future petitions to list plants and animals under the ESA, but it will most likely be much more difficult during a time when we should be doing everything we can to preserve native urban plants in the face of sprawling development.

Full disclosure: Laura Horton was a legal intern for Wild Equity Institute this past summer and worked on this case.

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