Can we conserve California's threatened fisheries through natural community conservation planning?

I. INTRODUCTION

A. Recent History of the Coho Crisis

Before the coho salmon was listed under the Endangered Species Act (ESA), the Resources Agency of California (Resources Agency) convened a policy committee for the development of the "Coastal Salmon Initiative" to protect the fish with voluntary measures.(3) From the outset, the Resources Agency clearly intended for the Natural Community Conservation Planning (NCCP) process to serve as a "model" for the initiative.(4) The policy committee was composed of state, federal, local, and tribal government officials as well as environmental and economic stakeholders.(5) Unfortunately, after nearly a year of monthly sessions, the environmental habitat restoration and fishing interests felt compelled to leave the process, unhappy with the dishonest and partial manner with which the Resources Agency facilitated the Process. Those who left the process found the Resources Agency unwilling to hold affected landowners accountable for compliance with reasonable measures to protect coho.(6) Similarly, the representative landowners indicated no willingness to commit to voluntary protection measures proposed by the committee. Those organizations committed to the recovery of the fisheries concluded that in the absence of a listing of the coho under the ESA, attempts to negotiate in good faith were both a waste of time and potentially counterproductive. This prelisting effort to protect coho fell apart in February, 1996.(7)

B. What is Natural Community Conservation Planning?

In 1991, the California legislature approved the Natural Community Conservation Planning Act.(8) The stated intention of the Act is to provide a means for voluntary, cooperative conservation planning that provides for both protection of wildlife and allowances of appropriate growth and development.(9) The Act gives the Resources Agency the authority to prepare guidelines for natural community conservation plan development, and to approve plans if they meet the California Department of Fish and Game (CDF&G) standards for natural community conservation.(10) The only substantive standard with which plans developed pursuant to NCCP must comply is to "provide comprehensive management and conservation of multiple wildlife species," without any further definition of terms.(11)

However, the two elements of plan development and plan approval are not guided by any mandatory guidelines or standards. The CDF&& may "prepare nonregulatory guidelines"(12) for plan development, followed by a list of possible guidelines.(13) However, CDF&G has not issued any guidelines for general NCCP development; the only development guidelines that exist are specific to the Southern California NCCP.(14) Similarly, standards for approval of plans are to be established by the CDF&G,(15) but this task has never been addressed either. The extraordinary lack of specificity in the authorizing statute, combined with CDF&G's failure to issue implementing regulations for development and approval of NCCP plans, make it difficult to understand how the Resources Agency can so persistently present the program as a meaningful substitute for listing species as endangered or threatened under the ESA.

The NCCP process has been fully implemented only once. In 1991, it was initiated as a purely voluntary program with the goal of averting a listing of the California gnatcatcher under the California Endangered Species Act.(16) The results were disappointing. In 1993, the California gnatcatcher was listed federally on the southern California coast(17) Secretary of the Interior, Bruce Babbitt, linked the federal listing with the implementation of the faltering NCCP by formally adopting the Orange County NCCP under section 4(d) of the ESA. Babbitt stated, "this Orange County plan will serve as a model for the nation."(18) Doug Wheeler, Secretary of the California State Resources Agency, has since waged a steady campaign touting his perception of the virtues of NCCP as a substitute for federal listings, steadfastly ignoring the failure of the program to make any gains until the federal listing had occurred.(19)

II. Will a Northern California NCCP Process Provide for the Protection and Recovery of California Coho Population?

With coho salmon now listed as threatened in all of its California range, can Natural Community Conservation Planning (NCCP) be expected to provide the basis for recovery of coho and the fisheries in general? Given the considerable ambiguity of the NCCP Act, it is difficult to speculate on what the exact effects of implementing a NCCP program on the north coast of California will be. The following discussion considers NCCP in the context of the southern California experience and the draft Memorandum of Understanding (MOW) between the Resources Agency and the National Marine Fisheries Service (NMFS),(20) which provides a very general idea of how a northern California coho NCCP might look An analysis of the NCCP process reveals several serious shortcomings that must be critically addressed if NCCP planning is to play a positive role in protecting wildlife and achieving the goals of the Endangered Species Act (ESA). These shortcomings and potential problems with the present NCCP process are discussed below.

A. Trust

Unfortunately, many natural resource advocates in northern California hold the Resources Agency of California (Resources Agency) in low esteem. Advocates feel that for many years, the Resources Agency has persistently failed to meet its responsibility to protect the natural resources of the state.(21) Naturally spawning coho salmon in California have declined from annual runs of 200,000 to 500,000 in the 1940's to approximately 30,000 today.(22) Powerful economic interests have consistently been provided the benefit of agency discretion, while the public trust has been ignored. For example, the California Fish and Game Code gives the Resources Agency authority that could have been used to prevent the precipitous decline of coho fisheries.(23) The politically appointed Fish and Game Commission, in conjunction with the Department of Fish and Game (CDF&G), has the authority to list endangered species under the California Endangered Species Act.(24) However, not until late 1996 was a small portion of the coho's range listed.(25) Fourteen years ago, the Board of Forestry committed itself to a review of the Forest Practice Rules for their effectiveness in protecting the "beneficial uses" of watercourses.(26) Today, that review is stalled, with just a tentative pilot program to monitor effects of timber harvest on fisheries. By default, the judicial process has provided the only real opportunity to persuade the Resources Agency and its subordinate departments to implement and enforce laws protecting the natural resources of California Nonetheless, the judicial process is only a partial remedy in the face of agency discretion.(27)

During the recent efforts to develop the Coastal Salmon Initiative, an incident occurred of the sort that destroys the credibility and trustworthiness of the agency in the eyes of the public. On September 27, 1996, at the bidding of the timber industry, the Resources Agency sent a letter to NMFS pleading for deferral of the impending October 25 decision on listing coho.(28) The letter was a nearly verbatim repetition of a letter from a timber industry group addressed to Secretary of Resources Doug Wheeler which was full of marginal and imaginary points of scientific disagreement, none of which were significant with respect to the fundamental issue: whether or not coho was threatened in the two California Evolutionarily Significant Units (ESUs).(29) For a state natural resources agency to act politically, on behalf of an industry organization, greatly undermines its effectiveness as the neutral facilitator. When those of us representing the fishing and environmental caucus found out about the letter, we felt we had no choice but to notify NMFS and the Resources Agency that we would cease participating in the Coastal Salmon Initiative if NMFS did not list coho in both California ESUs by October 25, 1996.(30) At that time coho was listed in only one ESU, and no more policy committee meetings were scheduled.(31)

If a collaborative process such as NCCP is going to work, participants in the process must be confident that the agency brokering the process will deal impartially with all of the stakeholders involved. On the northern coast of California, this confidence is simply lacking.

B. Implementation Mechanisms

Presently, most timber corporations in the Pacific Northwest are actively engaged in development of multi-species habitat conservation plans (HCPs) directly under the authority of section 10(a) of the ESA.(32) It seems unlikely that these corporations will have any reason to participate in the development of "watershed protection plans," either as part of HCPs or in the NCCP process,(33) because the disadvantages of the inherent complexity of such plans would appear to offset any imaginable benefits to the timber corporations. Of course, this lack of participation has very negative implications for the recovery of coho.

Assuming that the large timber companies do not get involved in complex and costly negotiation with all the landowners in a particular watershed that provides habitat for coho, the remaining potential constituency for a coho NCCP would be the large number of smaller and medium-sized landowners (forest and rangeland), county governments, and water agencies. In southern California, the NCCP process has relied heavily on the existing infrastructure and authority of county planning departments to implement its mosaic of reserves.(34) Facilitating this partnership is considered the key contribution of NCCP to ESA processes.

However, in recent years the rural counties have been struggling to maintain even a minimum of public services as their tax bases have been eroded by a variety of factors. As a result, the rural counties of northern California are not likely to provide the leadership and structure needed for a successful NCCP process. Furthermore, most agricultural (timber and livestock) land uses are generally not subject to county review or permitting. The potential for county leadership and initiative is thus virtually non-existent.

Instead, state funding may be the only means of marshaling the extensive resources required for the development of scores of watershed protection plans that will be vital to the recovery of the northern California fisheries. In an attempt to address the need for adequate resources, the draft MOU between NMFS and California refers to the potential for federal funding under section 6 of the ESA.(35) Given current federal budgetary restraints, this would seem to be a very speculative option. Although it would seem to be the more appropriate and viable option, state funding is not even mentioned in the draft MOU.(36)

Another respect in which the southern California NCCP experience differs radically from what will be necessary for north coast fisheries is the design of the respective conservation strategies. For the coastal sage scrub ecosystem, protection is achieved by creation of a mosaic of habitat reserves.(37) Areas set aside for habitat protection in the NCCP are (or become) public domain, either through easement purchase or transfer of title.(38) On the other hand, the north coast fisheries are an intricate web of riparian threads woven through the fabric of the landscape.(39) The necessary riparian habitat protections are going to have to function side by side with ongoing timber and agriculture production, and land ownership will limit options for establishing discreet reserves. Protection of riparian habitat necessary for the continued survival of coho in California can only be achieved through more effective regulation of timber and other agricultural practices. Incorporation of new timber and agricultural management practices into the development of so called voluntary watershed protection plans seems unlikely to have the necessary teeth to achieve protection and recovery of coho. As private landowners learn that NMFS is unlikely to enforce the ESA prohibition against the "taking" of coho,(40) they will have even less incentive to agree to improvements in regulator, process.

C. Biological Scope and Scientific Credibility

As noted earlier, the one explicit premise of the NCCP Act is that the plans must provide for multi-species protection.(41) As applied in southern California, this principle has created plans that claim to adequately conserve all species dependent upon a particular habitat.(42) Many observers question the scientific credibility of such claims.(43) Apparently, agency approval of NCCP plans is based on a policy orientation that glosses over questions of scientific credibility.(44) The desirability of moving toward multi-species approaches is not the issue. The real question is, how can we do so in a credible fashion? Fortunately, the recent statement from the Meeting of Scientists at Stanford University(45) provides us with an excellent template for evaluating a multi-species protection plan.

An adequate multi-species plan should 1) perform an independent scientific review of the plan's goals, design, management and monitoring, 2) insure that protection of habitat types are not a substitute for protection of individual target species,(46) 3) validate the connection between target species and the covered species for which they are intended as indicators. 4) evaluate species viability on a bioregional basis, 5) demonstrate how the plan contributes to recovery of all targeted species,(47) 6) incorporate research and monitoring programs that verify the continued recovery of target species and the connection with those for whom they are intended as indicators, and 7) include an adaptive management program, adjusting and improving the plan in light of new information.(48)

One thing that is striking about this template is that much of what we should be doing in credible multi-species protection plans, specifically points two through six above, can be described as protecting some variable number of individual species, chosen for their indicator characteristics. To insure that protection of an indicator species really protects the target species, the connection between them must have been scientifically validated. The report indicates that the commonly perceived dichotomy between single-species and multi-species approaches is more in name than in practice.(49) It is really the same process, the difference being a matter of the degree and scale of habitat protection.

For a variety of political reasons, multi-species planning is often presented as a panacea for resolving the difficulties that arise in implementing conservation strategies across the landscape.(50) However, a serious reading of the more objective template presented above suggests that multi species approaches would be better described as a challenge than a panacea It should be no surprise that serious questions have been raised about whether all-species protection in plans developed under the NCCP Act in southern California actually achieve their goals.(51) The all species approach is clearly intended to provide developers with a guarantee of no future additional liabilities for ESA protections. If state and federal agencies give the multi-species plans a stamp of approval without scientific validation, it seems inevitable that the protection of some species is being bought at the price of losing other species that are more poorly understood.

D. Sunsetting Science

As implemented in southern California and as proposed in the coho MOU, there is no opportunity for effective scientific review beyond the initial stage of the NCCP process.(52) A scientific review panel is established to develop "conservation guidelines" for the development of individual plans.(53) After the science panel creates these guidelines, however, it is provided no opportunity to exercise oversight for the implementation of the conservation guidelines.(54) The effect of such an approach is to put a stamp of scientific credibility on the process that in fact may have fallen far short of the guidelines. Worse yet, the agencies can engage in negotiating and deal making with the plan developers without ever exposing the plan or plans to objective review. This sunsetting of objective science is a major obstacle to assuring that these large scale, applicant-driven processes are not dominated by political concerns and influence. In this regard, NCCP utterly fails the test for a credible multi-species conservation planning effort.

E. Avoiding Jeopardy or Achieving Recovery?

Section 4(d) of the ESA is the real implementing authority of the NCCP processes that are under consideration.(55) Section 4(d) is titled "Protective Regulations" and stipulates that for threatened species, "the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species."(56) The ESA defines "conservation" of a species as "the use of all methods and procedures which are necessary to being any endangered or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary."(57) Therefore, this language sets a recovery standard for the implementation of conservation strategies authorized under section 4(d). By adopting an NCCP as a regulation that provides for the "conservation" of a threatened species, NMFS or the United States Fish and Wildlife Service (USFWS) should be providing for the eventual recovery of the species.

In practice, something quite different is occurring. The explicit standard for all plans approved under the NCCP Act is the jeopardy standard of section 10(a), which requires HCPs to "not appreciably reduce the likelihood of the survival and recovery of the species."(58) If each NCCP plan, the individual component of the overall conservation strategy, is required only to "not appreciably reduce the likelihood of recovery,"(59) then it seems likely that the aggregate resulting conservation strategy will be something well short of recovery. Thus, NCCP, as implemented under the authority of section 4(d), is in violation of the ESA Use of NCCP has made the no jeopardy standard of section 10(a) the highest protection required for the conservation of listed species under the ESA. While section 10(a) of the ESA may have an appropriate role to play, the role it now plays in undermining recovery for listed species seems to go well beyond what can be justified by the stated purposes of ESA.(60)

III. CONCLUSION

This analysis of the implications of developing a program for coho salmon recovery on the northern California coast under National Community Conservation Planning (NCCP) has revealed a number of significant shortcomings. It appears that those who are implementing NCCP under the aegis of the Endangered Species Act are less enthusiastic about recovering listed species than appeasing the money interests that are committed to business as usual. This is a continuation of the mindset that has brought us to the dilemma we now face.

It has been argued, and may well be, that efforts to conserve wildlife in the ecologically devastated urbanized landscapes typified by the coastal sage scrub of southern California have little real chance of success, i.e., recovering listed species.(61) Thus, NCCP can be understood as an invention of convenience for pretending to meet the requirements of ESA, when real options for recovery have already been foreclosed. Pragmatically speaking, NCCP appears to be a means of making the best of a bad situation. However, if NCCP continues to be evaluated as uncritically as it has, and accepted as a generalized panacea for resolving the difficulties of obtaining compliance with ESA standards across the nation, the implications for the future of wildlife in America are ominous. (1) Threatened Status for Central California Coast Evolutionarily Significant Unit of Coho Salmon, 61 Fed Reg. 56,138 (Oct. 31, 1996) (to be codified at 50 C.F.R pt. 227); Threatened Status for Southern Oregon/Northern California Coast Evolutionarily Significant Unit (ESU) of Coho Salmon, 62 Fed Reg. 24,588 (May 6, 1997) (to be codified at 50 C.F.R. pt. 227). California's coho populations exist in two evolutionarily significant units (ESUs). The central California ESU was listed on October 25, 1996 and the Transboundary ESU (shared by northern California and southern Oregon) was listed on April 25, 1997.

(2) The Endangered Species Act of 1973 [sections] 4(d), 16 U.S.C.[sub sections] 1531-1544 (1994). Section 4(d) of the ESA provides that:

Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife, or section 1538(a)(2) of this title, in the case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State.

Id. [sections] 1533(d).

(3) Nancy Vogel, North Coast Coho Salmon Headed for Threatened List, The Sacramento Bee, April 25, 1997, at A1 [hereinafter North Coast Coho].

(4) Like the Coastal Salmon Initiative set up by the Resources Agency, the NCCP process "promotes coordination and cooperation among public agencies, landowners, and other private interests ..... " Cal. Fish & Game Code 2810 (West 1997).

(5) North Coast Coho, supra note 3, at A1.

(6) California Biodiversity Alliance: Coho Decision "Lack of Nerve," PR Newswire, Oct. 25, 1996, at 15:56.

(7) North Coast Coho, supra note 3, at A1.

(8) Cal. & Game Code [subsections] 2800-2840 (West 1997).

(9) Id [sections] 2810, 2820.

(10) Id. [sections] 2825.

(11) Id. [sections] 2810.

(12) Id. [sections] 2825.

(13) Id.

(14) California Department of Fish and Game Resources Agency of California Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines (1993).

(15) Cal. Fish & Game Code [sections] 2825 (West 1997).

(16) Id.

(17) Determination of Threatened Status for the Coastal California Gnatcatcher, 58 Fed. Reg. 16,742 (Mar. 30, 1990) (codified at 50 C.F.R pt. 17).

(18) Office of the Secretary, U.S. Department of Interior, Interior Secretary Signs First-of-Its-Kind Species Habitat and Open Space Conservation Plan in Orange County, California, D.O.I. News Release, July 17, 1996, at 1, available in 1996 WL 41497P [hereinafter Orange County News Release].

(19) See, e.g., Resources Agency of California: San Diego County Lays Groundwork for 164,000-Acre Preserve, PR Newswire, May 2, 1996, at 14:07 (quoting Doug Wheeler describing the NCCP process as "the cutting edge of anticipatory, long-term natural resource protection in the United States today").

(20) Draft Memorandum of Understanding By and Between the State of California and the National Marine Fisheries Service: Endangered and Threatened Anadromous Fish (Apr. 25, 1997) (on file with author) [hereinafter Draft MOU].

(21) See Cal. Fish & Game Code [sections] 1801 (West 1997) (stating that "[i]t is hereby declared to be the policy of the state to encourage the preservation, conservation, and maintenance of wildlife resources under the jurisdiction and influence of the state") (emphasis added).

(22) North Coast Coho, supra note 3.

(23) The Resources Agency of California is a unique entity that consists of the Colorado River Board, the State Energy Resources Conservation and Development Commission, the State Lands Commission, the Division of State Lands, and the state departments of Conservation, Fish and Game, Forestry and Fire Protection, Navigation and Ocean Development, Parks and Recreation, and Water Resources. Cal. Gov. Code [sections] 12805 (West 1997). The Resources Agency is therefore empowered, by the Department of Fish and Game's (DFG) authority, to protect and conserve California fisheries. The authority of the DFG arises in various provisions of the Fish and Game Code. See, e.g., Cal. Fish & Game Code [sub sections] 1015, 1501, 1700, 6900 (West 1997). For example, the DFG is authorized to

[E]xpend such funds as may be necessary for the improvement of property,

including nonnavigable lakes and streams, riparian zones, and upland, in

order to restore, restore, rehabilitate, and improve fish and wildlife

habitat The improvement activities may include, but are not limited to, the

removal of barriers to migration of fish and wildlife and the improvement

of hatching, feeding, resting and breeding places for wildlife.

Id. [sections] 1501.

(24) Cal. Fish & Game Code [sections] 2072.7 (West 1997).

(25) Cal. Regulatory Notice Reg. 95 No. 48 (Dec. 1, 1995) (codified at Cal. Code Regs. tit. 14, [sections] 670.5(a)(2)(N) (1997)) (providing that coho salmon "south of San Francisco Bay" are an endangered species in California).

(26) Fisheries are a significant "beneficial use" impacted by timber harvest. See generally Cal. Water Code [sections] 1257 (West 1971). This provision directs the Water Board in acting upon an application to appropriate water to consider the relative benefits that could be derived from a broad range of beneficial uses including the "preservation and enhancement of fish and wildlife." Id.

(27) Under California law, an agency action can be overturned by a court only if it is "not supported by substantial evidence." Cal. Gov. Code [sections] 11350 (West 1992).

(28) Proposed Threatened Status for Three Contiguous ESUs of Coho Salmon Ranging From Oregon Through Central California, 60 Fed. Reg. 38,011 (July 25, 1995) (requiring NMFS to make a listing decision by October 25).

(29) Letter from Douglas Wheeler, Secretary for Resources, Resources Agency of California, to Hilda Diaz-Soltero, Regional Director, National Marine Fisheries Service (Sept. 27, 1996) (on file with author).

(30) Letter from Nat Bingham, Habitat Coordinator, Pacific Coast Federation of Fisherman's Associations et al., to Hilda Diaz-Soltero, Regional Director, National Marine Fisheries Service (Oct. 3, 1996) (on file with author).

(31) See supra note 1 and accompanying text.

(32) 16 U.S.C. [sections] 1539(a) (1994). Section 10(a) authorizes the Secretary to issue incidental take permits to private landowners, where certain statutory conditions are met. Private landowners who agree to multi-species habitat conservation plans meet the conditions for incidental take permits under section 10, and are protected by the No Surprises Policy. Id. Under this Policy, if an unforeseen circumstance during the life of an HCP, Fish and Wildlife Service and/or the National Marine Fisheries Service will not require additional lands, additional funds, or compliance with additional restrictions from any HCP participant who is in good faith adequately implementing an approved HCP. United States Fish and Wildlife Service & National Marine Fisheries Service, Habitat Conservation Planning Handbook 3-29 to 3-32 (Nov. 1996) (explaining the details of the No Surprises Policy, which was jointly established by the Department of the Interior and Department of Commerce to address the problem of maintaining regulatory assurances and providing regulatory certainty in exchange for conservation commitments").

(33) See Draft MOU, supra note 20.

(34) See Orange County News Release, supra note 18, at 2 (reporting that "in southern California, the [NCCP] planning process is under way to protect coastal and sage scrub habitat in five counties: San Diego, Orange, Los Angeles, Riverside, and San Bernadino").

(35) Draft Mou, supra note 20, at 5.

(36) Id.

(37) Orange County News Release, supra note 18, at 2.

(38) Id.

(39) National Research Council, Upstream: Salmon and Society in the Pacific Northwest 28-38 (1995) (discussing the salmon life cycle and the ecology of river basins).

(40) 16 U.S.C. [sections] 1538(a) (1994). Section 9 of the ESA makes it unlawful for "any person ... to ... take any [endangered or threatened] species ...." Id. Under the ESA, "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect...." Id. [sections] 1532(19). See James Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look From a Litigator's Perspective, 21 Envtl. L. 500, 574-82 (1991), for an analysis of recent developments relating to whether and when habitat modification constitutes "harm" under the ESA.

(41) See supra notes 10-11 and accompanying text.

(42) See Orange County News Release, supra note 18, at 2 (stating that "[t]he [NCCP] plan will protect over 40 native Californian species threatened by destruction of habitat and increased urban sprawl").

(43) See, e.g., Emmet Pierce, Some Environmental Activists Have Doubts On Plan for Habitats, San Diego Union-Tribune, Aug. 8, 1996, at B4 (reporting that "[a] key complaint has been that the science being used to determine the size, shape and location of habitat preserves has not been subjected to a thorough, independent scientific review").

(44) Id.

(45) Brussard, Quinn, Meffe, Ralls, Murphy, Soule, Noon, Tracy & Noss, A Statement on Proposed Private Lands Initiatives and Reauthorization of the Endangered Species Act from the Meeting of Scientists at Stanford University (Mar. 31, 1997) (on file with author).

(46) It is interesting to note that, in some sense, we are always doing single species management.

(47) Demonstration of how the plan provides for the recovery of all targeted species is especially important in the absence of species specific recovery plans.

(48) Brussard et al., supra note 45, at 3-4.

(49) Id.

(50) See supra notes 18-19 and accompanying text

(51) See Pierce, supra note 43. An environmental attorney interviewed opined that "[what is driving [the NCCP] process is the desire of developers to get a permit to take the species . . . [t]he NCCP is one big giant permit [to] remove roadblocks to development." Id The head of the Pacific region of the United States Fish and Wildlife agency, on the other hand, stated that "[i]n a perfect world, we would stop and study things for 20 years . . . [but] if we don't act now, well have more depletion of these habitats." Id.

(52) Draft MOU, supra note 20.

(53) Cal. Fish & Game Code [sub sections] 2825(a)(3) (West 1997) (providing that "guidelines may include, but are not limited to . . . [a]ppointing one or more advisory committees to review and make recommendations regarding the preparation and implementation of natural community conservation plans").

(54) Id.

(55) See supra note 2 and accompanying text.

(56) 16 U.S.C. [sub sections] 1533(d) (1994).

(57) Id [sub sections] 1532(3). According to the statute, "[t]he terms `conserve,' `conserving,' and `conservation' mean to use and the use of an methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." Id

(58) Id. [sub sections] 11539(a)(2)(B)(iv).

(59) Id.

(60) Id. [sub sections] 1531(b). The stated purposes of the ESA are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. Id

(61) See, e.g., Pierce, supra note 43. Environmental activist Daniel McFetridge argues that "the focus of conservation plans is clearing the way for construction, not protecting threatened plants and animals." Id.

John M. Gaffin is an environmental consultant who specializes in endangered species and habitat conservation planning issues. Mr. Gaffin has been appointed by the Resources Agency of California to serve on steering committees for the development of conservation plans for both the northern spotted owl and coho salmon. Currently, he represents the Environmental Protection Information Center (EPIC), based in Garberville, California, in efforts to ensure the recovery of California's threatened anadromous fisheries. Mr. Gaffin is also a small forest landowner with an active nonindustrial Timber Management Plan.