Attorneys for Amicus Curiae Applicants
Tulare County Audubon Society, Sierra Club
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF TULARE
Plaintiffs,
v.
TULARE IRRIGATION DISTRICT
Defendant.
Case No.: 00-0192130
DECLARATION OF MARY MOY IN SUPPORT OF APPLICATION BY AMICUS CURIAE TO FILE AMICUS BRIEF
Date: October 10, 2000
Time: 8:15 a.m.
Dept: 6
DECLARATION OF MARY MOY
My name is Mary Moy and my address is Conservation Chair, Sierra Club Mineral King Group, PO Box 3543 Visalia, CA 93278-3543. If called as a witness, I could testify as to all of the facts set forth in this Declaration. The Kaweah River watershed is home to what was once a 50,000-acre oak forest (Alan George 2000). This particular species is endemic to California, and is the largest oak in North America (Pavlik 1991). The trees can grow up to heights of 100 feet with canopies up to 80 feet wide. These oak trees can live over 600 years (Kricher and Morrison 1993). The valley oaks in the Kaweah delta are considered the best, largest, and most attractive.
In assessing oak trees, a treeís size is determined by ìdbhî or diameter breast height. Trees start to provide aesthetic, social, and habitat values at 20î dbh. Trees with a 30î dbh have added historical value, as these are often 100 or more years old. A total of 280 oak trees were identified within the project site. The project will remove 213. 35 of these trees have a 20î dbh.. 64 of these trees have a 30î dbh. 6 trees are eminent at greater than 60î dbh with one at almost 95î dbh. 108 of these trees are <20î dbh, but these embody a natural forest of mature and young trees as opposed to an artificial plantation of even-age trees.
The remaining 67 trees that will not be cut may eventually die. This is because mitigation measures address only those actions taken during construction to protect the remaining trees. The Revised Final Environmental Impact Report (RFEIR), February 2000, by CH2M HILL does not provide any programs to ensure long-term survival of these trees. The memorandum from Ginger Strong (Appendix D, RFEIR) clearly state that the greatest threat to these trees is the lack of water once the project is completed. The memo stated that in addition to construction protection measures, a program should be developed to ensure long-term tree viability after project completion. The EIR states that there will be a 12-foot drop in groundwater levels. This drop would surely affect the water availability for the remaining trees.
Without a survival program for the remaining 67 trees, the project could result in mortality of all 280 oak trees identified within the project site. Of the total 280 trees, 42trees have a 20î dbh. Of the total 280 trees, 87 trees have a 30î dbh. Of the total 280 trees, 11 trees are eminent at 60î dbh or greater.
The valley oak population is in serious decline in California, having once occupied 10 12 million acres of land and is now at 7 million acres (USDA Forest Service 1997). The recent construction of the Hwy 198 gap has already resulted in the loss of 200 oak trees.
Riparian woodland is made up of plants that grow near streams and lakes. These plants require more water than scrub-adapted plants. This ecosystem provides habitat for a variety of wildlife species. Remaining valley oak riparian woodland comprises critical habitat for nesting bird species. It has been reported that collectively, this ecosystem supports 67 nesting bird species, more than any other California habitat for which data is available (U.C. Davis symposium, David A. Gaines 1980). In particular, riparian systems are important nesting habitat for the state-threatened Swainsonís hawk, where these birds use large valley oaks as nesting sites (Schlorff and Bloom 1984).
Vegetation associated with valley oaks along the banks of the canal constitutes valley oak riparian woodland. A number of native tree and shrub species are part of this ecosystem. These species include primarily tree tobacco (Nicotiana glauca), boxelder (Acer negundo), willows (Salix spp.), and blackberry (Rubus spp.). This ecosystem provides habitat for many insects, pocket gophers, deer mice, the California ground squirrel, and reptiles. These in turn provide food and forage for many species of birds and raptors.
The project will eliminate the valley oak riparian woodland along the canal
Valley oak riparian woodland is a disappearing ecosystem, having declined from 700,000 acres to 200,000 acres
Mature valley oak riparian woodland is not found upstream of McKayís Point, thus the remaining remnants found along waterways downstream is much more meaningful
Riparian habitats are prolific insect producers; some of the species of birds that feed almost exclusively on insects are yellow warbler and black phoebe, which have been seen in the riparian woodlands along the canal
As these riparian habitat communities vanish, so do the animals that rely on them.
As previously mentioned, trees at 20î dbh are mature trees and provide aesthetic and social value. Of the total 280 trees within the project site, 129 trees fit into this category. Riparian vegetation along the canal provides a natural ambience, which is visually pleasing. The project will completely alter the physical appearance of the canal.
The project will destroy 213 oak trees. 99 of these trees have a 20î dbh or greater. The project will destroy riparian vegetation. The earthen canal will be lined with concrete, which is aesthetically less appealing.
Oaks in general, and particularly valley oaks, are protected throughout Los Angeles county and more than 100 municipalities, including the city of Visalia,have oak tree ordinances. This protection is testament to the public interest in the value of oak trees as a public trust resource. Many public and private entities are actively engaged in restoring as much valley oak woodland and riparian forest as possible. Workshops, seminars and research papers have focused on the ecology and protection of oak trees.
Charismatic wildlife usually conjures images of snow leopards and mountain gorillas. In the insect world, its equivalent is the bright and beautiful Valley Elderberry Longhorn Beetle (VELB). It is scarlet colored with black spots, sporting a dramatic pair of curved antennae as long as its body. VELB is exclusive to Californiaís Central Valley and is extremely rare. It will live only in thickets of mature elderberry in riparian woodlands.
The rapid destruction of riparian woodland has seriously endangered this beetle, and in 1980 was declared threatened under the Federal Endangered Species Act. Restoration programs were initiated. In an effort to study the success of these programs, Dr. Sharon Collinge in the Department of Environmental Design at UC Davis has been conducting research. Five restoration sites have been studied; the beetle has colonized only one. All too often in restoration projects, trees are replanted, then the money runs out and the projects are abandoned.
Elderberry shrubs were found at 20 locations within the project site. These shrubs are significant due to their location along the canal and are considered a riparian woodland. This riparian woodland is habitat for Valley Elderberry Longhorn Beetle. A total of 54 elderberry plants will be lost. A total of 227 elderberry stems, suitable for VELB, will be removed. Exit holes were found on shrubs at 2 locations, meaning there is a high likelihood of VELB presence.
The San Joaquin kit fox is listed as endangered under the U.S. Endangered Species Act and state of California listed as threatened. The kit fox historical range was from the vicinity of Tracy in the upper San Joaquin Valley south to the vicinity of Bakersfield. Loss of habitat due to conversion of its natural home of grassland and scrubland is the reason for decline of this species. Kit foxes now occupy modified habitat on the valley floor. Agriculture lands dominate this type of modified habitat. Some of these are tilled or fallow fields, irrigated row crops, irrigated pasture, canal easements, orchards, and vineyards. Agricultural areas are considered suitable foraging habitat. The Main Intake Canal runs through many orchards and may contain potential dens. Multiple kit fox sightings and road kills have been recorded on the canal road and in the surrounding vicinity.
The most recent record is in 1998, when the California Department of Fish and Game captured and transported an injured kit fox. Eight potential kit fox dens were found in 1998. The kit fox dens were found to be unoccupied and were destroyed. Due to the multiple sightings, the existence of foraging habitat, and the existence of potential dens, there was a high likelihood that kit foxes inhabited the area. The project has already destroyed potential dens for kit fox. The project will destroy squirrel burrows found along the canal; squirrels are a food source for kit fox. Approximately 100 acres of potential foraging habitat will be lost. The project will include effects such as mortality or injury to kit fox, entrapment or entombment, harassment, and restriction of movement through the area. The project will result in direct loss of shelter or dens; the project will also destroy eight dens. The project will result in the loss of one more remnant of potential habitat for kit fox.
Many people enjoy the presence of the magnificent
oak trees as they are walking, hiking, biking, or merely transiting through
the nearby areas from which the trees are visible.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 9th day of October, 2000 at Tulare, California.
_______________________
Mary Moy
Printed on Recycled Paper