The State of California has long attempted to preserve valuable and sensitive ecological land by designating such tracts as state ecological reserves. These reserves are administered by the state Wildlife Conservation Board. For the most part, the task of administering these preserve has been calm and free from controversy. Now, however, a proposal to swap a tract of environmentally sensitive land near San Diego to a developer and thereby authorize a large housing development has generated an extensive controversy that will test the limits of the Board’s legal authority.
The land at issue
The land in question is about 219 acres of scrubland that is home to the endangered Quino checker spot butterfly. The butterfly deeds dry, patchy scrublands to lay its eggs and allow its offspring to flourish. The female checker spot lays its eggs on plants that provide food for larvae immediately after they hatch. The hatchlings then crawl under rocks and bushed and enter a suspended state from which they emerge after several years as fully mature butterflies.
The exchange proposal
The first proposal to exchange the environmental preserve with a developer has been around for a number of years. Nothing much happened to move any of the proposals forward until a developer, GDCI Proctor Valley L.P. proposed that it give the state roughly 339 acres of nearby undeveloped land and place an additional 191 acres in a conservation easement.
For all its appearance of fairness, the proposal has come under harsh criticism from environmentalists. They argue that the developer’s land would not be an adequate habitat for the checker spot butterfly and that the development on the existing butterfly habitat would be environmentally damaging. Many critics of the swap, include several members of the Wildlife Conservation Board, have called the proposed trade “illegal” because the board does not have the legal power to consummate such a transaction. More than 50 land trusts and conservation groups in the state have announced their opposition to the deal.
If the board approves the swap, litigation appears to be the inevitable next step. The trade would be subject to several state and federal environmental laws. If the board declines the swap, it may be sued for breach of contract. If the board approves the swap, many of the opponents will undoubtedly bring suit to stop the swap and the development.
In either case, experienced environmental attorneys will be called upon to wrestle with several novel legal theories.