Flightline Progress Blog

I got an email a few weeks ago from someone in your group that asked or stated that they felt that the trail work that was done out at Flightline was not illegal, but just “not authorized”.  Here are some thoughts on that issue.  I’m not trying to incite anything here, but just trying to get your group aware of local, state and federal laws that protect habitat, plants and animals (CON refers to Carlsbad Oaks North Business Park, which set aside this land as part of their building permit requirements.) 

When you finally get to the County to try to open this area to biking, you will likely have to deal with all these legal issues, just like a developer has to when he/she proposes a development.  Just a FYI.  Developers that I work with have to “mitigate” for impacts created by trails because of the actual total removal of vegetation (not trimming), such as what was done at Flightline.  I can discuss mitigation in more detail if you would like, it is a term you will soon come to learn!

 Below is a list (does not include all laws and rules!!) of why the trails were illegal (written in part by another one of our staff members):

1)       The creation of the trails is a direct violation of the federal and state endangered species acts (ESAs).  Portions of the habitat (where the trails were created) were set aside for coastal California gnatcatchers (a federally listed threatened species).  At least one gnatcatcher was heard in the area at the top of the trails a few weeks ago.  Both the gnatcatcher and its habitat (occupied) are protected under the ESAs.  Proven violations of the ESAs can result in up to $10,000 in fines and potential jail time.  Currently, the ESAs are being violated because “take” as defined under the ESAs occurred to the gnatcatcher and its habitat.  If the trail creators were caught, they could be responsible for the damage and could have to pay the fines and potentially spend time in jail.

2)       Plants are a little less clear under the federal ESA, but more clear under the State ESA.  Direct impacts were observed to at least one federally and state listed plant.  The southeastern trail that was created impacted (and potentially killed) San Diego thornmint (a listed plant). The USFWS is currently aware of this and saw the damage themselves during a field visit in May 2006. Fines could result from the impacts to this plant as well.  Del Mar manzanita was also impacted.

3)       The northern trail is in direct conflict with the federal Clean Water Act and the CDFG Streambed Alteration Agreement Process (Section 1600).  The bridge that was built over the stream at the bottom is considered a “structure” that must be permitted and/or at least discussed with the regulatory agencies (USACOE, CDFG and RWQCB) prior to installation.  At least three permits would likely have to be obtained to put in this bridge.  None of those permits were obtained for the bridge; so again, whoever built the bridge is in violation of at least two more environmental laws.  Not to mention the habitat take of this trail, and the impacts to some plant species on this trail protected by Carlsbad’s Habitat Management Plan.

4)       The Natural Community Conservation Planning (NCCP) Program was also violated during the creation of the trails.  The impacted habitat was set aside under the NCCP as mitigation for the CON development.  If the regulatory agencies wanted to proceed, and the trail builders were caught, they could be required to purchase acreage to compensate for the trail impacts.  This acreage would likely have to be purchased at 6:1 mitigation ratio since the habitat was already mitigation for the CON development.  So, if one acre has been impacted through the illegal trail construction, an additional six acres of the same habitat would have to be purchased in the same watershed.  One acre of this type of vegetation community can cost as much as $25,000.

 In summary, at least six environmental laws were violated with the construction of the eastern and northern trails at Flightline.  There are likely more. 

Markus Spiegelberg
Center for Natural Lands Management