Environmentalists score victory in fight for Joshua tree protections

Edvard Pettersson

LOS ANGELES (CN) — An environmental advocacy group prevailed in its legal challenge to a 2023 decision by the U.S. Fish and Wildlife Service not to list two species of Joshua trees as threatened.

U.S. District Judge Wesley Hsu in a tentative decision granted WildEarth Guardians' motion for summary judgment that the federal agency's decision was "arbitrary and capricious" in violation of the Endangered Species Act.

The judge, a Joe Biden appointee, didn't issue a final ruling at a hearing Friday morning in Los Angeles federal court but took the matter under submission. However, there was no indication during his exchanges with an attorney for Fish and Wildlife that he was wavering in his conclusions.

It's the second time conservationists have brought suit to challenge the federal government's refusal to extend protection to the iconic trees that populate the Mojave Desert.

WildEarth Guardians said in a complaint filed last year that the case for listing Joshua trees as threatened has only grown stronger in the years since a federal judge ruled in 2021 that Fish and Wildlife's decision not to do so lacked scientific support. And the service, the group said, "has once again unreasonably disregarded the best available science and otherwise acted in an arbitrary and capricious manner."

After U.S. District Judge Otis Wright II, a George W. Bush appointee, sided with WildEarth Guardians in their previous lawsuit and ordered the service to reconsider its findings, Fish and Wildlife concluded two years ago that the iconic trees don't face any serious threats.

While noting climate change, wildfires, drought, and the invasive grasses as the biggest threats to Joshua trees, the service found that none of those factors will profoundly affect the population or range of Joshua trees' habitat.

In his tentative decision, Hsu agreed with WildEarth Guardians that the definition of the "foreseeable future" in the service's analysis as limited to a "midcentury" range was arbitrary in so far as Fish and Wildlife failed to provide an explanation for its decision to use this definition based on the best science available.

The judge noted in this regard that Fish and Wildlife had found climate change projections were reasonably reliable until the end of the century.

"Though the court does not expect the Service to predict the future with absolute certainty, the service provides no explanation as to why it did not use current trends and standards regarding greenhouse gas emissions as a basis for its decision, when this data currently is available and the service states in its [species status assessment] the regulations are unlikely to alter the trajectory of climate change impacts," Hsu said.

"The service used such data in support of its determination that the regulations will help prevent some threats to Joshua trees, so it may not ignore the data in this section of its analysis," the judge added. "Such selective reliance, without explanation, is arbitrary and capricious."

In addition, the judge agreed with the environmental organization that the service's use of the science available regarding the threat of climate change was unconvincing.

Specifically, Hsu said Fish and Wildlife had selectively relied on a study about Joshua Tree National Park to review and predict Joshua trees distribution while excluding, without explanation, that study's conclusion that there is a risk of "almost complete elimination of the species from the park by end-of-century."

Taylor Mayhall, a Justice Department attorney representing Fish and Wildlife, argued at the hearing that the trees have proven to be remarkably resilient in adapting to climate change. Further, she said, the Joshua tree can reproduce asexually, are distributed widely and are mostly found on federally or state-owned land where they are already enjoy protection.

WildEarth Guardians, however, argue that this reliance on the trees resilience is misguided because it only pertains to mature trees, most of which were established during pre-industrial climate conditions, and these already established adult trees can persist in degraded, climatically unsuitable habitats.

"The next generation won't be here," Carl Bage, an attorney for the nonprofit said at Friday's hearing. "The trees won't be able to reproduce in their habitat."