S4E32: Joshua Trees are Still Caught in the Climate Crossfire

UNCORRECTED TRANSCRIPT

0:00:01 - (Chris Clarke): 90 miles from Needles the Desert Protection Podcast is made possible by listeners just like you. If you want to help us out, you can go to 90 miles from needles.com donate or text needles to 53555 this episode is dedicated to the memory of two people who've played a crucial role in me becoming a writer, both of whom have died this year. Sharon Seidenstein, who passed a couple months ago, and Malcolm Margolin, who passed just a few days ago. As I record this, I'm grateful to both of them more than I can say, or for that matter, more than I ever did say to either of them.

0:00:48 - (Joe): Think the deserts are barren wastelands. Think again. It’s time for 90 Miles From Needles, the Desert Protection Podcast.

0:01:07 - (Chris Clarke): Thank you Joe and welcome to yet another episode of 90 Miles from Needles, the Desert Protection Podcast. I am your host, Chris Clark and last week as I record this On August 14, 2025, the California Fish and Game Commission approved a new step in the state's efforts to come up with a Joshua Tree protection strategy that makes no one particularly unhappy. The Commission approved the Western Joshua Tree Conservation Plan, which is mandated by the Western Joshua Tree Conservation act passed by the legislature in 2023.

0:01:39 - (Chris Clarke): And we are fortunate enough to have a repeat visit from our good friend Brendan Cummings from the center for Biological Diversity, who basically kickstarted this whole process into motion back in 2019. So Brendan is going to bring us up to speed on what the Fish and Game Commission did in approving the Western Joshua Tree Conservation Plan, and we have a few other things in store as well. You will want to stay all the way to the end of this episode for a piece of beautiful music by Melanie Marshall that is absolutely on topic.

0:02:06 - (Chris Clarke): We're talking with Brendan Cummings, Conservation Director for the center for Biological Diversity. Brendan, thanks so much for coming back onto the program.

0:02:14 - (Brendan Cummings): Thank you for having me back. Always a pleasure to talk to to you and your audience.

0:02:19 - (Chris Clarke): When last we talked, we were waiting for the California Department of Fish and Wildlife to come up with a plan for implementing the Western Joshua Tree Conservation Act. I wonder if you could give us just a short summary of how we got to this point.

0:02:36 - (Brendan Cummings): Absolutely. It's really been about a six-year journey now. So in October 2019, I filed a formal petition with the Fish and Game Commission seeking protection of the Western Joshua Tree as a threatened species under the California Endangered Species Act. California had never listed a species under its Endangered Species act where the primary threat was climate change. Years previously, we had forced the federal government to do so under the federal ESA with polar bears.

0:03:09 - (Brendan Cummings): This petition launched a process that in October 2020 resulted in interim protections for the species and triggered an 18-month review period where the department would come back with a recommendation over whether it should be permanently protected. It was a contentious process. A lot of local support for protection, a lot of criticism of how Joshua trees were managed by San Bernardino County, Yucca Valley and other jurisdictions in the desert, as well as real concern about the threat that climate, increased fire and development presented to the species. There had been a whole bunch of scientific publications projecting dire fate for the Joshua tree, not just in Joshua Tree national park, but throughout its range.

0:03:52 - (Brendan Cummings): To our surprise, in 2022, the department comes back with a recommendation not to protect the species, saying climate change is real, but we're not really going to feel the effects on Joshua trees for the next thousand years. This was surprising language coming from the Newsom administration, not the Trump administration. It went before the Fish and Game Commission for approval.

0:04:17 - (Chris Clarke): Just as a momentary aside, here, there are a couple of names of California entities that we throw around a lot in this conversation, by the way, and I wanted to describe the relationship between two of them that might be confused. There is the California Department of Fish and Wildlife, which up until about 10 years ago was called the California Department of Fish and Game, but it is now the California Department of Fish and Wildlife cdfw.

0:04:43 - (Chris Clarke): That is the agency that basically manages the wild things in California, plants and animals and things that don't fit cleanly into either category. This is a professional agency with paid staff who are botanists and wildlife biologists and veterinarians and zoologists and attorneys, all of whom are really good at their jobs, many of whom do things with which we occasionally disagree. And then there is the California Fish and Game Commission, which is a five-member panel that is appointed, but they are representatives of the public. They do have some expertise. In a lot of cases they are in simultaneously an advisory and command position over the California Department of Fish and Wildlife.

0:05:33 - (Chris Clarke): In this particular instance, the Fish and Game Commission is responsible for determining whether or not a species is in big enough trouble to be protected under the California Endangered Species Act. And it's up to CDFW to turn those decisions of the Fish and Game Commission into actual policy and implement them. Back to the interview.

0:05:53 - (Brendan Cummings): And because of the resignation, the five member commission was down to four. And in a rather dramatic day and a half, we ultimately ended up with a 2:2 split, where the lawyer and scientist on the commission recognized it qualified for protection and the two others, who were more subject to political pressure at the time, voted against it. We were deadlocked. Interim protections persisted. And then what do you do? How do you break the deadlock?

0:06:22 - (Brendan Cummings): One thought was there would be a fifth commissioner appointed, and there ultimately was. There was enough support for protecting the Joshua tree that going back to the status quo of no state protection was politically unacceptable. But the actual regulatory repercussions of full protection under CESA were also deemed too difficult, too expensive, particularly for the large scale solar industry and other developers.

0:06:50 - (Brendan Cummings): What came out of all this ultimately was the Western Joshua Tree Conservation act signed into law in July 2023. That law did several things, but fundamentally, it was the first state law by California that recognized the climate threat to biodiversity and made a specific commitment to protect the western Joshua tree in the face of the threats it faces. The overriding threat, of course, is climate change.

0:07:20 - (Brendan Cummings): We also have increased fires fueled by invasive grasses, and then the most immediate threat, which is Joshua trees getting chopped down, bulldozed, and their habitat being lost. The law was inherently a compromise where it differed from cisa. Protection was permitting, that is, the ability to be allowed to kill or move a Joshua tree would be made much simpler and cheaper. That's why solar companies and others were able to sign off on it.

0:07:53 - (Brendan Cummings): And we got it. Passed the tradeoff for that was a much more rigorous public process. We would have a actual conservation plan that would flesh out everything we needed to do to save the species. We'd have periodic reviews and reassess what the permit fees should be to make sure they're raising enough money to preserve the land and do the management actions necessary to save the species. That took us from 2019 when I started, to 2023 when the bill passed.

0:08:27 - (Brendan Cummings): Since that time, the department, as required by the law, produced that conservation plan. They did a lot of public outreach in the initial process. They reached out to tribes, as the law required them to do, got that input, and in December 2024 came out with the draft conservation plan. It was generally quite a good plan, much better than the typical federal recovery plan. If we do everything that draft plan said, we have a much better chance of saving the Western Joshua tree.

0:08:59 - (Brendan Cummings): The act also required public process and that it get approved or disapproved by the California Fish and Game Commission. They set a series of hearings for for it over the course of this spring and summer. What we saw during that time was an orchestrated backlash, not so much against the plan, but against the very idea that Joshua trees deserve protection. This came from San Bernardino county, the town of Yucca Valley, and various types of developers.

0:09:32 - (Brendan Cummings): The general gist of it is protecting the Joshua tree is too expensive, too difficult, too time consuming to get permits. While having the law in place and having a permit scheme, it does create additional process and additional requirements that weren't there before we had that law. They're in no way as onerous as opponents of protection have made them out to be. Over the sequence of Fish and Game Commission meetings, we heard a lot of complaining about the law and about the permitting scheme.

0:10:00 - (Brendan Cummings): The commission heard all of that, made some changes based on it, and ultimately, a week ago today, as we're recording this, the commission voted unanimously to adopt the Western Joshua Tree Conservation Plan. That document, I think, will ultimately be a landmark document in how we protect biodiversity in a changing climate. It's an incredibly detailed, well-crafted summary of the science, the threats facing the species, and all the things we need to do to give the species the best possible chance to survive over the very difficult decades ahead of us.

0:10:41 - (Chris Clarke): So if you were to give a really brief elevator pitch of what the plan does, for a lot of conservation plans, there are prohibitions, there are places where attention is being focused, there are strategies for preserving borderline populations, things like that. What's in the Joshua Tree Conservation?

0:11:03 - (Brendan Cummings): The plan contains a whole bunch of things that should happen and some things that must happen. The goal of the plan is to assess by 2033 whether we've done enough to say that the Joshua tree is no longer threatened. Addressing climate change is one of the biggest things we need to do to actually be able to say that, yes, it's adequately protected, but. But it focuses on several things. One, it's identifying the areas where Joshua trees have the best chance of persisting, where they have the best chance of persisting in a climate that even in the best case greenhouse gas scenario, is going to be hotter than it is today.

0:11:47 - (Brendan Cummings): Maps out those areas and prioritizes those for protection and sets thresholds to measure success of the plan. The refugia, the last best places we have to have permanently protected 90% of those. To declare the plan successful, the broader priority areas for the species will have needed to protect 70% of those. Let's say we've adequately protected the species. Those are pretty good standards. A lot of federal recovery plans start with an endangered species and say if we let it decline 95% but protect that last remnant 5%, we're good.

0:12:20 - (Brendan Cummings): If we do everything in the plan that's necessary to save the Western Joshua tree. We'll also, by extension, have done a lot to make our desert communities more sustainable, more Livable for humans, but also for all the animals and other plants that share the ecosystem with the Joshua Tree.

0:12:38 - (Chris Clarke): I'm assuming that a lot of the areas that are high priority for preservation, will it be 20 towards the north end of the range because of the nature of climate change?

0:12:49 - (Brendan Cummings): Yeah, exactly. They're not the only areas. And part of the way the act was structured in drying zones of higher and lower permit fees was there's essentially three broad categories of areas where Joshua trees have the best chance of surviving. One, the northern edges of their range. Two, the higher elevation areas of their range. And three areas are already subject to intensive management, like Joshua Tree National Park.

0:13:18 - (Brendan Cummings): Joshua Tree national park is at the southern edge of the range of the species and is feeling the impacts of climate change earlier and harder than other areas. But we're not going to write off Joshua trees in Joshua Tree National Park. The broader we, it may not be this federal government, but a future one, along with the state of California, is committed to, to ensuring that Joshua Tree national park maintains Joshua trees. And we can do that.

0:13:46 - (Brendan Cummings): So those different categories of areas tend to be the areas that map out as priority conservation areas. And one thing I'll say also about that, there's a tension that comes up when trying to protect climate threatened species. On one level, all species are climate threatened at this point, but some are more sensitive and we know they're already in trouble. One idea is you identify the areas where they're most likely to survive the warming, the drying, and as we've discussed, those are higher elevation, higher latitude areas.

0:14:18 - (Brendan Cummings): Another thing you do is try to save as much of them as possible to maintain the genetics. The more places they exist, the more likely they're to survive. There's a tendency to be like, well, if they're only going to survive in this 10% of the range at higher elevation, why don't we just develop the other 90%? Putting all eggs in that one basket obviously is not a wise way of ensuring the conservation of the species.

0:14:43 - (Chris Clarke): If anything would underscore that, it would be what we spent our last episode on, which was the fifth anniversary of the dome fire in Mojave National Preserve. As different species of Joshua tree not subject to this law, but the best protected places can be subject to catastrophic losses of individuals of the species, for sure.

0:15:05 - (Brendan Cummings): Yeah, absolutely. Joshua Tree national park, you know, the mapping of the best refugee areas, depending on how you map it, close to half of that has already burned to some degree. Some areas that once were dense woodlands are now very sparse, non native grasslands. We can hopefully figure out how to reduce the impacts or frequency of fire in Joshua tree habitat. But we're not going to stop it. At any given time this summer, it feels like some area of Joshua tree habitat along the north slope of the San Bernardino or San Gabriel Mountains or in the west Mojave or Antelope Valley is on fire.

0:15:48 - (Chris Clarke): So what does this look like for the edge populations? Fire makes me think of the westernmost groups of Joshua trees, which are significantly more fire adapted than other places. I'm thinking of the westernmost actual grove of Joshua trees, which is right off Interstate 5 in the Grapevine, which burned to the ground completely in probably 04 or 05. By the time I got there in 06, every single burned tree had multiple stump sprouts coming out. So they're close to the coast ranges, they're used to fire.

0:16:21 - (Chris Clarke): Is there any recognition of differing levels of different dangers for populations like that?

0:16:27 - (Brendan Cummings): There is, but it's not really fleshed out in the plan. People working on it are aware of that. Some of the best areas where Joshua trees are more likely to survive, the north slope of the San Gabriel and San Bernardino Mountains. There you have Joshua trees on the floor of the Antelope Valley in the west Mojave and they move up through the transition zone and some get close quite high up the mountain.

0:16:49 - (Brendan Cummings): But those higher elevation areas where the Joshua trees are more protected from desiccation from the heat, which is already stopping reproduction in other areas are incredibly flammable because of the other species that co occur with them in addition to the non native grasses. It's going to be tough and we need to protect as many areas. There's recommendations in the plan to figure out the genetics of the species to make sure.

0:17:17 - (Brendan Cummings): Are there ones more adapted, more fire resilient or more drought resilient? In the era of climate change, just keeping the bulldozers away and fencing out the other kinds of threats is not sufficient to save species, Particularly species like Bijashu tree that are already in large parts of their range failing to reproduce, showing higher adult mortality, basically from the heating and drying. And then we overlay fires on top of that. And some of these best areas we've got development.

0:17:50 - (Brendan Cummings): Yucca Valley, there's a different history where that could have been part of the national park. Early studies on the genetics show where the maximum genetic diversity within the species resides, until it was developed, was probably the most magnificent western Joshua tree forest on the planet. Now we're fighting over how to put a sewer system in a way that's least damaging to Joshua trees in that community.

0:18:15 - (Chris Clarke): So about that. What are the disincentives like? Or the permit fees for homeowners, which is who I've heard most of the complaining from or on behalf of, allegedly on behalf of. What does this plan mean for a typical property owner in Western Joshua tree forest habitat that isn't necessarily interested in bulldozing the entire property, but wants to build an addition on their house? Or, you know, you hear about the problems with dead Joshua trees not being able to be removed, even if they're perceived as a threat to public safety or personal safety under the law, there's.

0:18:52 - (Brendan Cummings): A free permit system in place for hazard trees, dead tree removal. So a dead tree in your driveway on your property, that's too. Or a live tree that's too close to a power line too close to your house. There's a straightforward provision. Go online to the CDFW's Western Joshua Tree website. You can do an online permit and get a free permit to do what you need to do to that tree to haul away the dead tree or get the live tree trimmed.

0:19:25 - (Brendan Cummings): So hazard trees. That argument by opponents of protection is disingenuous or at least based on not understanding the law. For live trees where someone wants to build something new and that building requires, I'll say in quote, removing a Joshua tree. The ideal of a permit scheme and really all endangered species protection is, you know, the three parts. Avoid, minimize, mitigate. Can you build it without harming a Joshua tree?

0:20:01 - (Brendan Cummings): If the answer is yes, then that's the desired outcome. Hopefully this spurs people who build a deck or an accessory structure to think, is there a way to design this to not kill any Joshua trees? I hope that anyone living in the high desert communities at least appreciates Joshua trees enough to minimize the number that they kill. You drive through our community and see the new houses and the new Airbnbs springing up, and that's unfortunately not the case.

0:20:28 - (Brendan Cummings): So those that can't be avoided, you apply and get a permit to remove them. Those permit fees are quite low depending on the zone you're in, but it's a little over $100 for a small tree, 250 for the majority of the trees, a little over a thousand for the bigger trees. May sound like a lot, but on the scale of what it costs to build a house or an accessory structure, it's a pretty minimal amount. And if you compare it to local ordinances on protecting oaks, where in parts of LA county, if you're going to cut an oak Tree, you're paying $15,000 versus if you're going to kill a Joshua tree, you're paying one to a few hundred dollars.

0:21:12 - (Brendan Cummings): So a lot of that criticism, outrage, I think, is overblown. But the goal was not to punish anyone. It's to protect the species in areas that have regional conservation plans, which much of the rest of the state has. For example, the Coachella Valley Multi Species Habitat Conservation Plan proactive plan by local governments that sets the how and the where of how to coexist with endangered species and makes it very easy for the individual homeowner, landowner, developer to figure out what they need to do to go forward with their development or whether that development is prohibitively expensive because it's in one of the key conservation areas.

0:21:57 - (Brendan Cummings): That kind of proactive planning just hasn't occurred in the high desert. And those governments and the developers behind them seem embittered. Rather than enter the processes that would make permitting easy, cheap and straightforward for their residents, instead try to generate backlash. It seems like they're consciously or at least negligently inflicting pain on their own constituents by making the permitting harder than it needs to be. By not participating in the process or doing these programmatic permits that the rest of the state has demonstrated they're wholly capable of doing.

0:22:34 - (Chris Clarke): What would that mean for a company that wanted to come in and do some infill building in Yucca Valley? Say there's a car dealership that wants to expand into an area that they own and it's got 35 mature Joshua trees on it. What would that mean the developer has to do, and I assume that there's money going somewhere. What does that money pay for in.

0:22:59 - (Brendan Cummings): That example of a commercial development? The thing to remember is almost every commercial development has to comply with CEQA, the California Environmental Quality Act. And if there are endangered species that will be taken CESA or in case of Joshua Tree, CESA or the Western Joshua Tree Conservation Act. So that project is already going through environmental review. Whether that review is adequate is a separate question, but we assume it is.

0:23:26 - (Brendan Cummings): It goes through environmental review. Public process identifies the impacts. Even in the absence of the Joshua Tree act or CESA protection. If we had functional local government that followed the law, they would have identified the Joshua trees as a significant impact and required avoidance or at least minimization by relocation. Now, under the act, you get pretty much the same result, except they need a permit from the department.

0:23:52 - (Brendan Cummings): That permit's pretty easy to get. They do a census of the trees and the various size classes and pay a per Tree fee, which then goes into the Western Joshua Tree Conservation Fund, which is overseen by the department and is used to take actions to conserve the species, primarily the protection of land, for example, of how that money is spent. The first project out the gate using Western Joshua tree conservation funds was for the protection of this property up near Weldon in the Kelso Valley. So in one of those transition zones where Joshua trees almost escaped the desert into the Kern river drainage.

0:24:31 - (Chris Clarke): Give them time.

0:24:32 - (Brendan Cummings): Yep. And this was an area, it was a property that called the Bob Rabbit property, after Bob Rabbit, who a century ago was one of the last native rain doctors known throughout native communities, not just in California, but in Arizona as well.

0:24:52 - (Chris Clarke): Brendan went into a little bit more detail about this land acquisition, but I thought, just in the interest of going upstream to the source, so to speak.

0:25:02 - (Chris Clarke): That we should probably turn to Robert Gomez, chairman of the Tubatulabal Tribe up in the Kern river drainage, who gave public comment at the August 14 meeting of the California Fish and Game Commission talking about the Bob Rabbit property. And his comments were wonderful. So here they are.

0:25:25 - (Robert Gomez): Robert Gomez, chairman for the Tubatulabal Tribe from the Kern River Valley, and just want to make a couple of comments here in regards to your plan. You guys have been doing a lot of good work. Keep it up and look favorably on this project and we'll continue. A lot of issues came up, and I'm glad they came up because I have a lot of ideas in my head right now as to how we. How I think the tribe can contribute to the success of this program.

0:26:00 - (Robert Gomez): But let's go back a little bit. If I know my history. When the Mormons came over and I think they named the Joshua Tree, I like to think that they were thinking umbil, Umbil, which means Joshua Tree in our language, Pakanil language. And I would like to think that they were probably saying ungumbal, Ungumbal, ungumbal, which means the tree that goes up in the. In the sky, touches the clouds. So with that, I want to look at the cultural aspect of the Joshua Tree for our particular tribe.

0:26:44 - (Robert Gomez): We started working with the Native American Land Conservancy several years ago in regards to an area called Bob Rabbit Allotment, which was an Indian allotment out in the south fork of the Kern River Valley in Kelso Canyon, Kelso Creek Canyon, Bob Rabbit area. We used to call the Old Man. I didn't know him, of course. Dad knew him. I used to call the man the Old Man. Saw it. Cewet means jackrabbit. In our language.

0:27:15 - (Robert Gomez): And he was a rainmaker, very renowned rainmaker throughout the Southwest. Dad said that when they were young, two Hopi Indians come into and met Grandpa and they wanted to go meet Bob Rabbit. So they spent a week up at Bob Rabbit and the old man was showing the Hopi Indians how to make rain. So that was very significant to me when I went with NALC to the area because I felt an affinity to that land.

0:27:54 - (Robert Gomez): And luckily we had a young man. I think he was from the Cahuilla tribe. Sean, his name was Sean. And we sang songs there. So I want to look at that as a cultural aspect that we bring the Joshua trees into that land again and relocate them because. Because it means a lot to us. There's another area up in the Kern River Valley. When you go to the desert called Walker Pass, that area has been burned by human activity.

0:28:29 - (Robert Gomez): 5, 600 acres. That area is very, very sacred to us in terms of our cultural history. It's an old village site. So there's areas around California that need and could use relocation, lots of them. But moreover, we acquired some land for the tribe here In August of 2023, 12, 41 acres. We had WCB, Sierra Land Conservancy and Western Rivers Conservancy bought the land for us, gave us the grant deed, because our tribe, just like you guys, believes in conservation of the land, protection of the land, perpetuity of the land.

0:29:27 - (Robert Gomez): That's in our mission statement. And we believe that. I believe that. So now we just recently had 860 acres or so of our land. Fire Cal fire went out, put it out, so on and so forth. But it opened up our eyes as to this riparian area that I, as chairman, would like to see Joshua trees transplanted to that location. We have 800 acres. We're not going to do all 800 acres, of course, but I could set aside some land for you.

0:30:07 - (Robert Gomez): So let's try and do a pilot program if that's what you need. Let's look at the CEQA permitting and exemptions and so on, so forth. I got all these plans going around in my head. I need your assistance. I love to have it, so I want you to look at it favorably. But moreover, I also want you to look at. We have the cultural aspects. Have you ever tasted a bud of a Joshua tree? Bittersweet, it's sweet but leaves an aftertaste in your mouth have you ever dug the root of the Joshua tree for basket making?

0:30:49 - (Robert Gomez): Have you ever tasted and made tea with a flower of the Joshua Tree. I don't know if it's legal or not. I'll go to jail right now, but I did it. You know, those are the cultural aspects that I want you to look at, you know, look favorably on on this project and help us succeed with you. Okay, thank you very much.

0:31:20 - (Joe Geoffrey): Don't go away. We'll be right back.

0:31:24 - (Chris Clarke): Time for our submission from our nature recordist friend, Fred Bell. And in this episode, given that the monsoon is frustrating a lot of our friends for being absent so far this year, I thought I would tantalize everyone just a little bit by offering up Fred's recording of a thunderstorm in eastern Joshua Tree territory. Beaver Dam Wash, I believe in Utah, though the wash does extend into the Arizona strip a little bit.

0:33:15 - (Joe Geoffrey): You're listening to 90 Miles from Needles, the desert protection podcast. One gallon of water per person per day. And that's if you're not hiking back to the interview.

0:33:27 - (Brendan Cummings): Western Joshua Tree conservation funds funded the acquisition and management leading to restoration and experiments to understand what it takes to help Joshua trees recover from burn areas. These efforts are being done with the cooperation and leadership of the tribes in the area. That's one of the key things as we negotiated the language of the Western Joshua Tree Conservation act to ensure that tribes had a big role to play.

0:33:54 - (Brendan Cummings): It's the first California law that mandates tribal consultation and where possible, co management of conservation areas created as a result of spending money under the Conservation Act.

0:34:10 - (Chris Clarke): Something that came up a couple of years ago was some of the projects that were grandfathered in during the negotiations on how to put the law together. Probably the biggest, most controversial one was Aretina Solar outside of Boron. What's your sense about how much of an issue that's going to remain as the plan gets implemented?

0:34:32 - (Brendan Cummings): The role of large scale solar in the California desert is highly controversial. Wish all our renewable energy needs were put on rooftops, canals, freeways and parking lots of. If we're going to build at scale, which I think we actually do need, we can't do everything distributed. We also need to build at scale already. Degraded lands, agricultural land coming out of production, things of that sort.

0:34:58 - (Brendan Cummings): The incentives of five, six years ago, which have changed a bit, made it easier and cheaper for solar companies to build on Joshua Tree woodland than on abandoned farmlands right next to it. Staying and passing the act was to change that incentive structure bill or regulatory scheme that in the pipeline would not get through the legislature or the governor's office. It didn't get through the commission, it got deadlocked.

0:35:29 - (Brendan Cummings): The ultimate Compromise in the Conservation act is for projects that are already in the pipeline. And the pipeline for a renewable project is five to 10 years because it's all related to where you get in the queue for a hookup to the grid. Once you're locked into that, it's hard to change anything about the project. So the companies that had done that and had gone to Joshua Tree Woodlands in the Antelope Valley and West Mojave went there because these areas were theoretically lower tortoise density and were for the most part private lands rather than public lands. So they thought they were avoiding controversy by putting them in the Joshua Tree woodlands.

0:36:09 - (Brendan Cummings): Once the Joshua Tree protection kicked in. The idea compromise of the bill is they would have certainty on the price of what permits would be and that those would apply to projects already far enough in the pipeline that they're already financed and likely to happen and that the fees would go up next year. There's a process to raise the fees under the act and that would act to discourage new solar projects from going into prime Joshua Tree habitat. So that's a long way of saying these projects were in essence, grandfathered in during a regulatory phase where they were all considered shovel ready. And it turned out a few of them weren't.

0:36:49 - (Brendan Cummings): New projects are not getting sited in Joshua Tree Woodlands. New large scale solar projects are going elsewhere. For the most part, that's going into ag lands in the San Joaquin Valley that are coming out of production due to groundwater issues. And that's a far better place to put these projects because you're taking ag lands which are functionally ecological dead zones. In some cases, you can actually improve the ecology of the area by ending ag and putting solar panels on them.

0:37:19 - (Chris Clarke): Probably good for the San Joaquin kit fox.

0:37:21 - (Brendan Cummings): Yeah. Different ecosystems respond in different ways. Species that live in disturbed grasslands can coexist with solar farms in the Mojave Desert or in Joshua Tree woodlands. It's hard for those species to coexist with a solar farm. The habitat is destroyed.

0:37:36 - (Chris Clarke): Right. Antelope ground squirrels could probably handle it, but not much else.

0:37:39 - (Brendan Cummings): I would guess that's the reality we're in. The era of new big projects cited in Joshua Tree habitat is behind us.

0:37:47 - (Chris Clarke): What happens in 2033 if the plan doesn't work as well as we all.

0:37:53 - (Brendan Cummings): Hope it will, Assuming our laws stay the same and who knows what the future and Game Commission will be. The law requires the department to produce a new status review on the species, assessing the threats and whether the actions taken under the act have reduced those threats. They make their recommendation that goes to the commission and the commission votes on it and we'll see where things go. It's hard to picture anything we do over the next eight years that sufficiently reduces the climate threat, but we may be able to do enough that reduces the land use threat.

0:38:33 - (Brendan Cummings): Hopefully we'll figure out some treatment regime for invasive grasses that reduces the fire threat. If we electrify our energy sources and our vehicle fleet, we will no longer be pumping nitrogen into the air which acts as a fertilizer for all these invasive grasses which fuel the fire risk. Fire is a somewhat solvable problem, at least in the true desert parts of the Joshua tree range. It's a little harder in the more fire prone ecosystems.

0:39:00 - (Brendan Cummings): I want the plan to work because I want us to do all the good things over the next decade, help the tree along. As a purely legal interpretation matter, I think it clearly qualified for listing at the time I filed the petition, at the time it was voted on by the commission. And it'll still meet those legal criteria in 2033. But I hope it doesn't need the additional protections of CESA in 2033, because the Western Joshua Tree Conservation act will have addressed all the threats that we can actually address through Wise Land Management.

0:39:38 - (Chris Clarke): And while all this is going on.

0:39:39 - (Chris Clarke): There is a petition that's getting denied and then courts are reinstating it from Wild Earth Guardians for protection of both species of Joshua tree under federal ESA. Do you see that playing a role? I mean, it seems unlikely that Fish and Wildlife Service under Trump is going to say, yes, this tree that is everywhere you want to put a strip mall is endangered and you can't touch it.

0:40:05 - (Brendan Cummings): I've been closely following that process, which is now a decade on. The petition was filed in late 2015. In each case, the US Fish and Wildlife Service, which is a lot of great people, but a dysfunctional agency, has twice denied protection. The first time they did so by saying that climate distribution models were not trustworthy. Even they cited those same studies elsewhere. The status review, the court overturned it on that basis and sent it back.

0:40:34 - (Brendan Cummings): They did a new status review which came out under Biden. So the Biden administration denied it the second time. But they did the odd thing of truncating what's known as the foreseeable future, the timeframe in which you assess whether a species is threatened or not, and saying, well, we don't really know what's gonna happen after about 2070 and there will still be Joshua trees around in 2070, so they're not threatened.

0:40:58 - (Brendan Cummings): And the court was like, no, that's absurd on its face. We fought this battle in other contexts with other species. The Service's sort of philosophy on the difference between endangered, threatened, and not warranted at all is timed to extinction. So under their analysis, if you fall off the 10th floor of a building, you're endangered. If you fall off the 20th floor, you're only threatened because it'll take you longer to hit the ground.

0:41:26 - (Brendan Cummings): And if you fall off the 30th floor, well, your future is too uncertain for us to know what the result's going to be. Unfortunately for Joshua trees and climate change, we clearly know what the trajectory is.

0:41:38 - (Chris Clarke): What does this mean for Californians who have a Joshua tree in their yard as a candidate species? It's protected under cisa. Does the Conservation act have any effect on things like Joshua tree? Fruit falls from a tree in your yard, you pick it up, you sell it to somebody on ebay for Joshua tree scenes.

0:42:01 - (Brendan Cummings): Short answer. The way the Conservation act works and the take prohibitions of the Conservation act are identical. Bans the take, it bans the possession of species. The take prohibitions are very similar to the federal ones, and they're designed to address all the different types of threats that certain species face. For many plants, like orchids, trade is a big threat. For cactus, that's a big issue. That's the reason for those regulations on trade, a general prohibition.

0:42:30 - (Brendan Cummings): Things that are grandfathered in if they've been possessed beforehand. Technically, it's illegal to collect seeds, certainly to sell seeds. However, there are provisions for authorizations under MoUs memorandums of understanding that authorize things for educational purposes and other purposes. Some of those have been issued involving tribal use. If local governments were willing to play ball, you could come up with ways to make things that ultimately don't harm the species.

0:43:02 - (Brendan Cummings): I think that authorization will come, but in the near term, it's not there. One question I constantly got asked, if there's a Joshua tree branch on my driveway, can I move it? Now there's a simple online permit to cover yourself legally to do it. If you can move it without possessing it, kicking it off your driveway, you probably don't need a permit. The result is the enforcement the Department will do about willful acts of removing jasha trees without permits. The goal of this whole protection effort was not to stop people from appreciating and living among Joshua trees. It was to force better management and planning.

0:43:43 - (Brendan Cummings): How are we going to get this species, and by extension, our desert communities, through the difficult period decades ahead of us? Given climate change, I think this plan lays out a solid blueprint on how to do that. The next step is to ensure that it actually gets implemented.

0:44:00 - (Chris Clarke): So where can people go if they want to find out more, not only about the plan, but about what you and the center for Biological Diversity are doing on behalf of the trees?

0:44:09 - (Brendan Cummings): Well, we're easy to find@biologicaldiversity.org and we have a species page for pretty much every species we work on. The California Department of Fish and Wildlife has a Western Joshua Tree Conservation act webpage that has all the relevant documents, links to permitting. If you do a search for the initials wjtca, the first search response will be that webpage and it'll provide access to everything you want to know about Joshua trees.

0:44:43 - (Chris Clarke): That's great.

0:44:43 - (Chris Clarke): Well, Brendan Cummings, thank you so much for coming back on the show. Always a pleasure to talk.

0:44:48 - (Brendan Cummings): I'm always happy to talk about Joshua trees. Every short question you ask, I give a long answer. But look forward to providing the next update, probably next year when the fight over what the appropriate fees will be begins. And that will be another whack of the hornet's nest. Great.

0:45:05 - (Chris Clarke): We'll have to have you on before that to talk about Valquitas or something.

0:45:09 - (Brendan Cummings): Yeah, absolutely.

0:45:09 - (Chris Clarke): All right, thanks.

0:45:10 - (Brendan Cummings): Thank you.

0:45:21 - (Melanie Marshall): I always wondered how you brave the thunder on wild Mojave nights wind blown and twisted you somehow persisted to me first morn in life Joshua tree.

0:45:48 - (Melanie Marshall): You.

0:45:48 - (Melanie Marshall): Only look half as weary as me Joshua tree sky full of sky just out of reach out of the jungle of concrete and struggle I'm relieved to see you you've been a greeter to so many so many secrets lead me back to my rootshuat dream, you only look half as weary as me Joshua dream sky full of star just out of reach Joshua dream you only look at this weary asleep Joshua dream sky full of stars just out of breath.

0:48:00 - (Chris Clarke): That is the wonderful music of Melanie Marshall, who offered us up this song she wrote a couple of years ago if we ever did an episode on Joshua Trees. And obviously we had to take her up on that. Thanks to Melanie and huge thanks to Brendan Cummings for joining us to explain what's going on with the Fish and Game Commission vis a vis Joshua Trees and how the state of California plans to make sure that they're still around in 200 years.

0:48:29 - (Chris Clarke): And I was serious when I talked about having Brendan on to talk about Vaquitas because I've been wanting to do something on Vaquitas for quite some time. Also want to thank Joe Geoffrey, our voiceover guy, Martin Mancha, our podcast artist, and Fred Bell, our Nature Sounds recordist. That was a great thunderstorm, Fred. Also want to thank Gretchen Grunt, who is our new donor today and she's been a donor in the past, but she came back.

0:48:54 - (Chris Clarke): Gretchen's a good friend and a pillar of the Twentynine Palms community. And Gretchen, your support is extremely appreciated. Our theme song, Moody Western, is by Brightside Studio. Other music in this episode, as mentioned before, is by Melanie Marshall and with that we bring this episode to a close. Just extremely grateful for your listening. New episodes to come and I'm out the door to head up to the Bay Area for the weekend for Sharon's memorial service gathering tribute.

0:49:26 - (Chris Clarke): I'm not sure what her family is actually calling it, but oddly looking forward to seeing a bunch of people I haven't seen in 20 years.

0:49:33 - (Chris Clarke): Remember that regardless of the drama that may be in your life at the moment, regardless of annoyances or vexations, you will be remembered for the good you did and for how you made people feel. So make people feel good. See you next time.

0:49:53 - (Joe Geoffrey): 90 Miles for Needles is a production of the Desert Advocacy Media Network.