Feds warned of suit over unnecessary ESA listing of VELB

SACRAMENTO, CA;  January 10, 2011:  Attorneys with Pacific Legal Foundation announced today that they have formally warned federal officials of a forthcoming lawsuit if the valley elderberry longhorn beetle (VELB) is not removed from the federal Endangered Species Act list.

In a letter mailed to the U.S. Fish and Wildlife Service (FWS), PLF attorneys point out that the federal government’s own study concluded that the VELB is no longer in need of ESA protection.

The letter, mailed on Friday, January 7, constitutes the “60 Day Notice” that prospective plaintiffs must provide before suing over unjustified ESA regulations.

PLF is the leading legal watchdog for property rights and balanced environmental regulations. The PLF letter is filed on behalf of a broad coalition of landowners, businesses, farmers, and flood-control agencies harmed by unnecessary and unjustified ESA regulation of the VELB.

The prospective plaintiffs include:

1. Agricultural organizations: Sacramento County Farm Bureau, Butte County Farm Bureau, Solano County Farm Bureau, Yolo County Farm Bureau.
2. Property owners and businesses: The Sacramento Valley Landowners Association and the North Sacramento Land Company.
3. Flood-control jurisdictions: Levee District 1, Reclamation District 784, and Reclamation District 1500, all of which are responsible for flood control,    drainage, and irrigation management within the Sacramento Valley.

 
The VELB is found in California’s Central Valley, from southern Shasta County south to Kern County. “Critical habitat” designations include a zone in Sacramento between the Western Pacific railroad tracks and Commerce Circle, and areas along the south bank of the American River, including in the vicinity of Rancho Cordova’s River Bend Park.  The case is Yolo County Farm Bureau v. United States Fish and Wildlife Service.

Although the VELB has been listed as “threatened” under the federal Endangered Species Act since 1980, in 2006 the U.S. Fish and Wildlife Service completed a mandatory five-year review as part of a settlement agreement in a case brought by PLF attorneys. The review found the VELB should be taken off the ESA list. However, no action ensued.

Brandon M. Middleton Attorney M. Reed Hopper Principal Attorney

“Job creation suffers because of the federal government’s failure to act on its own findings that the VELB should be delisted,” said PLF attorney Brandon M. Middleton.

A prime example is the predicament of Bob Slobe, whose historic North Sacramento Land Company owns property adjacent to American River Parkway and California Route 160 in Sacramento. The land is zoned for offices which he hopes to build, but the VELB listing has stymied any plans to develop his property. Slobe’s land is within the critical habitat zone for the VELB, so he can’t disturb any of the bushes where beetles live – without being forced to pay an unaffordable sum of money to buy and preserve habitat elsewhere.

"Slobe’s vacant parcel also has attracted large numbers of transients, who set up camps on the property, even though he is continuously working to clean up after the trespassers," said Middleton. As the Sacramento Business Journal reported in a 2003 story, the property became a dumping ground for abandoned cars and bicycles, stolen copper wire, and dangerous waste, such as syringes.

Ironically, even the bushes where the beetles live have harmed by trespassers. “In the last year alone, bushes on our property have been burned twice,” Slobe recently pointed out.

“The feds’ unjustified delay in dropping the VELB from the ESA protected list is eating into the budgets of reclamation districts that protect the people and service the economy in the Sacramento Valley,” said Middleton. “These districts have been forced to devote significant resources to VELB mitigation projects. So the unnecessary VELB regulations make it harder for these vital agencies to focus on flood control, drainage, and irrigation management.”

For instance, it cost approximately $1.2 million extra to repair a stretch of levy outside of Marysville, because Reclamation District 784 had to remove and replant elderberry bushes – the habitat of the VELB – before work could start. “It took approximately a year to get the permit” to proceed with levy improvements, said Steve Fordice, an official with the district.

The case is Yolo County Farm Bureau v. United States Fish and Wildlife Service.  The 60-day notice may be found at PLF’s website.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates, pro bono, for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country.