THOMAS LARSON

(San Diego Reader April 20, 2000)

Royce Riggan Jr., a biological consultant in San Diego for 25 years, was driving back to his office one Sunday afternoon in January. His route, from the west end of Miramar Road to his working place in the heart of Mira Mesa, took him through the Miralani Business Park along Trade Place, where for a mile one long warehouse abuts another. The route also took him past a lone, fenced wetland habitat, alien to such a locale, on Arjons Drive. It was a habitat he knew well. Riggan, who describes himself as "one of the gray-haired guys" in environmental consulting, had helped designate this 8.7-acre parcel above Carroll Canyon in 1977 as a preserve, for it was home, at the time, to three threatened species—the San Diego fairy shrimp (a crustacean), the button celery (also called coyote thistle), and the San Diego mesa mint—each of which have become federal-listed endangered species. (The plants are also state-listed.)

These species germinate and live out their brief lives when their shallow basin homes inundate with spring rains, becoming vernal pools. Suddenly Riggan stopped, parked the car, and hustled to the fence. He was furious at what he saw: One-quarter of the site had been "scraped of vegetation"; only "naked dirt and some sandbags" remained. It looked as though dozers were readying the parcel for development. His first thought was, Who could have done this? For a quarter-century this site had (supposedly) been protected land and that fact was known, Riggan said, "to me and a large number of people."

Riggan peered through the hoary 23-year-old chainlink fence and observed that the bulldozers tore up what he describes as a chaparral eco-system—a mound-and-basin topography made up of dense thickets of scrub oak, chamise, and small depressions which collect rain. In these basins the endangered fairy shrimp hatch from cysts, while the celery and mint sprout from seed each spring. If it’s a wet year. In dry years, cysts and seeds wait it out. Biologists estimate cysts—the hulled embryo is dormant—can wait for decades.

Checking his maps later, Riggan determined that in the two-acre scraping about "20 vernal pools had been severely damaged or destroyed." He described to me what Square One had wrought. "They went onto the property with small bulldozers. They ripped the vegetation. Most of these shrubs have underground lignotubers or burls, for fire adaptation: If a fire swept through, in a week or two, they’d start sprouting back from these underground woody burls. Most of the burls had been ripped out of the ground. You can see individual burls lying on the surface here and there where they weren’t cleaned up. There has been surface movement of the dirt in several locations such that there may be vernal pools buried under fill."

To restore the pools, Riggan continued, a biologist would have to draw a "micro-scale topographic map" to identify the mounds that were cut down and the basins that were filled in. This would guide the restorer to convert the mounds and the basins to their original forms. He emphasized any reclamation is as much science as art and estimated the cost to be "way out in six figures."

Riggan’s anger—and that of other biologists who, in subsequent days, observed the grading—rose red hot because anymore these wetland habitats are rare in San Diego county. In fact, according to Dr. Ellen T. Bauder, professor of biology at San Diego State University, expert on our endemic soil systems, and restorer of damaged vernal pool complexes at Miramar Marine Corps Air Station, 97% of all vernal pools in the county have been destroyed. Covered in asphalt and concrete. Tilled for gardens and tomato fields. Graded for golf courses and soccer fields. The largest and best-tended vernal pool complexes are on the Miramar Air Station land, Del Mar Mesa, Lopez Ridge, and Otay Mesa. State and federal law protects these pools because of the endangered species they contain, regardless of whether they are publicly or privately held. To list a plant or animal on state and federal ledgers means, if the law is enforced, any removal (or "take," a surprisingly direct term conservationists and bureaucrats also use) can result in fines and jail time.

Knowingly grading a protected vernal pool site is a violation of the state Endangered Species Act as well as a violation of the federal Endangered Species Act and the federal Clean Water Act. Under the latter acts, one can be fined up to $25,000 per violation. Under the state act, the fine is $5000. The state liability for "take" of an endangered species is $25,000 for each species "taken," in this case the mesa mint and the button celery. Imprisonment can run to one year. Civil penalties may also be levied. The heaviest fine comes under the Clean Water Act where a violator can be fined up to $25,000 for each day there is unauthorized fill of any kind in a vernal pool complex. On this charge alone, one hundred days since early December when the project was halted adds up through mid-April to $2,500,000.

The immediate bulldozing culprit is clear: Square One Development of La Jolla, co-owned (with Mark Mandell) by Mickey Cafagna, the Mayor of Poway. At 57, a former Poway City Council member, and the Mayor since 1998, Cafagna has spoken very little about the bulldozing. He has said (in a voice-mail message) "nothing’s been destroyed" at the Arjons site. "I don’t know if we even have a story here. There really isn’t a story." Square One, the owner of the site, however, did receive a permit from the city of San Diego in order to begin grading. Square One bulldozed for a week or two last December, then stopped when the city discovered its "error" and told Cafagna to "cease and desist."

In March, in response to the wrongly issued grading permit, the U. S. Fish and Wildlife Service and the California Department of Fish and Game co-authored a letter charging the City of San Diego with violating state and federal regulations as well as the city’s municipal code for handing out permits. The agencies have not, at this date, brought Cafagna up on any charge, although the city attorney’s office is investigating both the permitting office and Square One. Fish and Wildlife and Fish and Game are "requesting" "remedial action" or else they will revoke the City’s right to issue "take" permits, which authorizes the destruction of protected lands.

In the latest twist, Fish and Wildlife has subpoenaed documents from previous owners of the parcel presumably to discover who knew what about the property and when they knew it. One major problem facing any investigation is that even though most everyone knows the parcel was set aside as a preserve, no recorded deed has ever been filed with the County Assessor’s office to indicate that fact.

What happened on those two acres, which infuriated Riggan and other biologists and has led to a Vernal Pool-gate of incompetence and malfeasance within the city of San Diego, is not as simple as the federal and state agencies’ swift request for "remedial action" might indicate. The investigation is still young. We know those 20 vernal pools where endangered species once lived have been "severely damaged." We know misconduct in the city’s Planning and Development Department has been admitted. And we know Square One Development is facing a surge of city, state, and federal inquires. In early April, the Army Corps of Engineers notified Square One that the company had violated the Clean Water Act by grading the property. The Law Enforcement Division of Fish and Wildlife continues to investigate. Yet this case adds up to much more than a sum total of its parts. When Mickey Cafagna’s bulldozers went in at Miramar Point Industrial Park Unit No. 3, Parcel #341-060-90, they disturbed more than these pools and their habitat. Square One’s grading has exposed a history of bumbling conservation efforts for "set-aside" parcels. Such ineptitude is all the more damaging because the agencies which grant permits for developers are also, incongruously, charged with safeguarding much of San Diego’s ever-dwindling natural legacy.

***

About a month after inspecting the site, Riggan recalled for me what he knew about Unit No. 3’s history. As president of RECON during the 1970s, a firm that writes environmental impact reports for threatened habitats and species, Riggan had supervised a biological resources survey and a report in 1977 on the Arjons site for H. G. Fenton Company. At the time Fenton was putting together a 1000-acre project for their business in Carroll Canyon, which required an environmental impact report. Fenton had to set aside three small vernal pool complexes as mitigation. Mitigation is quid pro quo—one exchanges a destroyed habitat in one spot for the active preservation of a similar habitat in another spot. In other words, to change the canyon’s habitat, Fenton agreed to maintain these vernal pool complexes in perpetuity. One of the three areas was the Arjons vernal pools, on the south rim of the canyon. A late-70s Green victory, this was one of the first vernal pool mitigation sites in the state of California. Thus, Riggan believed the pools’ unprecedented status meant they would remain untouched—pristine is the biologist’s word–forever. Then he drove by the property in January.

Riggan was not aware that H. G. Fenton Company had in 1998 sold much of its Carroll Canyon operation, which included the three set-aside vernal pool parcels, to Hanson Aggregates Pacific Southwest, Inc., a London-based aggregate business. These parcels were a very small part of the Fenton sale, a handful of acres in a 1000-acre deal. Mickey Cafagna’s Square One Development then purchased one of the three parcels, the 8.7-acre Arjons site from Hanson. James Wallmann, the chief counsel for Hanson, told me that on September 25, 1998, when the sale was being put together, Square One’s broker acknowledged to Hanson’s broker, in a letter of intent, the protected nature of the property. The letter concludes with the following statement: "As you are aware, the subject property primarily consists of protected plant species and vernal pools." This statement that Square One knew the parcel had protected plants and vernal pools came a year before the sale date, in September, 1999. Brokers for both Hanson and Square One signed this letter.

Wallmann said Hanson retains this letter and other documents that support the fact that Square One and Hanson knew of the site’s "resource sensitivity." Wallmann told me that Fenton disclosed the parcel’s sensitive nature to Hanson when Fenton sold it to Hanson. This letter and other documents have now been subpoenaed by Fish and Wildlife, presumably to bolster a charge that Cafagna and Square One Development committed a "knowing violation" because they knew the parcel had protected plants and vernal pools fully 15 months before the bulldozers scraped the parcel.

Lending credence to Wallmann’s disclosures is the fact that under California real estate law, an owner must transmit any restraints on a piece of property he or she is selling. If the owner does not disclose such restraints, the buyer can go after the seller in court and sue for damages. Hanson by law had to convey to the buyer that the site was a habitat with endangered species, to fulfill its legal duty prior to sale.

In early February Riggan began making calls and writing letters. Among the people he phoned were reporters and government agencies. (Stories quickly appeared in the Union-Tribune, the San Diego Daily Transcript, and the North County Times.) He queried Fish and Wildlife: Was a permit issued from their office for the bulldozing? No, they said. Riggan then sent two letters, the first to Tim Vendlinski, the Chief of the Wetlands Regulatory Office at the Environmental Protection Agency in San Francisco. In it, Riggan describes the Arjons bulldozing as the "taking of presumptively preserved pools . . . [an event that] violates the Clean Water Act." "This event," he continued, "is so politically and biologically significant that I recommend the immediate involvement of the EPA."

The second letter was more damning. It went to Ken S. Berg, the Field Supervisor of the U.S. Fish and Wildlife Service, which has federal jurisdiction over the site. Riggan writes that Cafagna’s Square One Development, "is not a naive, new firm and Mr. Cafagna is certainly familiar with vernal pools given his participation in the MSCP process." The Multiple Species Conservation Plan is the newest environmental plan on the block. The idea behind it is simple enough: preserve 172,000 acres in San Diego county (only a small portion is contiguous) to help some 85 threatened and endangered plant and animal species survive the juggernaut of development. The Multiple Species Conservation Program is a multi-partisan countywide program, empowered by state and federal mandates, which aims to balance the set-aside interests of the conservationists and the demands of the builders. On occasion, the competing groups join ranks and apply to Fish and Wildlife for "take." For example, a developer wants to build a parking lot on a sensitive site and "take" or destroy habitat and species. If Fish and Wildlife and the Multiple Species Conservation Program allows the developer to "take" habitat and species in one spot that means the developer must preserve a similar site elsewhere. That’s where conservationists come in, angling for as much mitigation as possible.

As Poway’s Mayor and city council member, Cafagna’s has, according to David Hogan of the Center for Biological Diversity, a national conservation group, been intimately involved in the Multiple Species Conservation Program. "Poway was the first jurisdiction to get a permit," he says, "for taking of endangered species under San Diego’s MSCP. There was a lot of political involvement in Poway with that program, so Cafagna is well aware of the importance of undeveloped sites for any wildlife let alone critically endangered species."

Apropos of Cafagna’s involvement in the Multiple Species Conservation Program, Riggan concludes his letter to Ken Berg of Fish and Wildlife, "If a strong signal is not sent by the agencies"—which Riggan told me means jail time and stiff fines if Cafagna or anyone in the city is shown to have had prior knowledge about the site’s protected status—"then all privately held ‘preserved’ lands are at risk and the MSCP is a sham."

In February, when Riggan returned to photograph the site, he talked with a man who works at Executive Micro, a computer dealer adjacent to the vernal pool site. Did he, Riggan, know anything about the area? the man asked. Yes, Riggan said, it’s a wetlands preserve. The man responded that he, too, had always heard that. The man described how puzzled he was to see bulldozers grading the property. Even more surprising for Riggan, the dozers entered not through the main gate, but by tearing the fence open in Executive Micro’s parking lot. Why did they avoid the main opening? Riggan believes someone was "sneaking the equipment onto the back of the property where people wouldn’t see it. If there’s a big door [in front], why do you sneak through the window at the side of the house?"

Riggan’s ardent efforts to stop the grading, ironically, came more than a month after the fact: The project had already been stopped by the time he reported it. According to a March 16 letter, co-signed by Mike Spear, a Regional Manager at Fish and Wildlife, and Ronald Rempel, Deputy Director of Fish and Game, and sent to San Diego City Manager Michael T. Uberuaga, "a city official . . . informed our agencies that the grading permit was issued in error by employees who did not realize the entire parcel was to be permanently protected for vernal pool conservation to mitigate impacts from previous development of other property." The city of San Diego had issued the permit to grade the Arjons site in the first place. For that action, the city is now facing state and federal reprisal. The letter demands the city "take immediate steps to mitigate environmental damage . . . and . . . ensure that similar violations do not occur in the future." It’s unclear if this means fines or penalties any severer than this letter’s call for restoration. As to Square One’s liability, Bill Tippetts of State Fish and Game has said his agency is waiting for the city’s response to its March 16^th letter before Fish and Game decide to move against Cafagna.

The issuance of this now-famous Engineering Permit No. W-48163 was euphemistically termed by Stephen Haase, the city’s Development Review Manager in the Department of Planning and Development, a "procedural error." Riggan calls it a "major, major error. I was stunned that this [parcel] had never been flagged. Not only is this a preserve, it’s jurisdictional wetlands, which happens to contain several endangered species. This should have had a red flag on it. The city determined it was ministerial—you didn’t need to do environmental review to get a grading permit on this property. That is a major error.

"The city, compared to Mr. Cafagna," Riggan continues, "may have made an honest mistake. Although at this point I’ve lost all confidence in their ability to flag these things adequately. I would like to see an oversight committee to review what the city’s doing procedurally so that all the people concerned can be assured that there are systems in place so this won’t happen again. This isn’t the first time this has happened. It’s just the worst."

Stephen Haase admits the problem began in his office but places the brunt of the responsibility for the violation on Cafagna, the property owner. In an interview before the case was turned over to the city attorney’s office, Haase said the permit to grade the Arjons site was issued last year to Square One Development, the grading began in late November and was stopped by his office on December 9, 1999, after the dozers had worked it for approximately two weeks.

In the early 1980s, Haase grants, the site was mapped and set aside for mitigation. But Unit No. 3 "was not conveyed to the city, was not re-zoned to open space, and there was no easement placed over it. Any one of those three things really would have increased the level of protection for that resource. Twenty years ago, that didn’t happen. We don’t do that today. And the reason is, we don’t want this [the Arjons grading] to happen. We want something on the title or the city wants possession of the land.

"What happened in the early 1980s was that you had a private property owner who had set aside land for mitigation and in perpetuity was responsible for protecting that land. Things change. And in this case, the ownership changed. But it has always been the private property owner’s [responsibility] to insure that that land was protected for mitigation purposes. By the way, that’s not the strongest position—to have the private sector protecting land which has really been set aside for public benefit. We don’t do business that way anymore."

The "procedural error," Haase attributes to the city’s antiquated approval process. His office is in transition from a paper medium to an electronic one. He has applied for an EPA grant of $65,000 to create an electronic database for all vernal pool complexes in the county, which he says should fix the problem. "If this [Arjons] site was set aside 20 years ago, we don’t have it in our database right now." Haase is waiting to hear whether the EPA grant has been awarded to the city. But he notes, "If we don’t get federal money, we’ll invest our own funds to map it."

As to the location of San Diego’s vernal pools, Haase says "at this point in time" he is "not confident" he knows where they all are. He calls conservationists or "any interest group" "presumptuous" who says he and his office should know. "They may know where [the pools] are because they have an interest in them. But in my division there’s more than just vernal pools. We will work with [environmentalists] to map those complexes and make sure they’re protected."

Haase says the map that brought the Arjons site to his attention was one he "had never seen before." Why not? Haase manages 430 people, who together oversee the grading of land and the construction of buildings in San Diego. One hundred and three staff members are directly involved in the permitting process. It’s unrealistic to assume, he insists, that his staff would know where every vernal pool map is, especially if the maps are not kept up-to-date or part of the review process. He calls the problem, a "communication issue. And we will improve that. This is a good example where the data existed but it had not been published for everyone to share."

Wouldn’t any parcel of land, let alone vernal pools, which contain state- and federal-listed endangered species, have the highest priority in a Planning and Development office?

He agrees they should. But because the land was under "private control" and not city control, "it was the owner’s responsibility to maintain the land even if it is set aside for mitigation. We may not know what’s on those sites. But we need to find out. That’s what unique about this [parcel] in my mind."

But, if a site is set aside for mitigation, doesn’t that mean it can’t be built on?

"It should," Haase says. "But let me add a complexity. If you don’t re-zone that land to open space or convey it to the city, at a later date the property owner has a right to ask for it to be developed. And, in fact, we have a couple cases where people come back in and say ‘Look, I want to develop this site that was set aside for mitigation and I’ll do other mitigation instead.’ They’re not precluded from doing that unless you raise the level of protection. And the highest level of protection, obviously, is to convey the land to the city. Practically speaking, you have issues of property rights and taking claim if you deny someone the reasonable use of their land. Those are issues that are being ignored by certain interest groups. We want to make sure we balance all those things. When we do set aside land for mitigation, we protect it to the best of our ability. And it’s my belief . . . that we did not do that on this particular parcel."

Haase confides that beside state and federal investigations, the city attorney’s office is conducting its own. The city is responsible for implementing state regulations (largely because the state has granted the city power through the Multiple Species Conservation Program to enforce environmental laws), and the state is asking if the city has implemented those regulations adequately. The feds have "permitting authority" and are looking at why the owner, Square One, got none of the "appropriate federal permits." Haase says, "the property owner is still required to get all the associated approvals. The issuance of a grading permit by the city of San Diego does not suffice the need for a permit, say, from the Army Corps of Engineers for the impact on wetlands." An analogy, Haase offers: "I’ll give a restaurant a building permit. But they still have to get a permit from the health department to open up." Haase’s approval, he stresses, does not "constitute an approval from another agency."

Maintaining that the approval process is common knowledge, Haase says it’s sometimes written down on grading permits. In fact, he believes there’s a statement to that effect on the original permit issued to Square One. It should read: "This document does not absolve the developer from any other required state or federal permits or other agency permits." "Any licensed engineer knows that fact by heart," Haase says. "It’s a requirement of architects and engineers who are licensed by the state under the Business and Professions Code." (Though this case is under investigation by the city attorney’s office, a copy of the original permit, No. W-48163, was asked for and received on March 30, 2000, at the 5^th floor office, Department of Planning and Development. There is no statement on the permit that directs agent or applicant to follow other state and federal permitting procedures.)

Haase says he believes Cafagna did know vernal pools existed on Unit No. 3, but he may have thought the pools were on other parts of the parcel. Any further questions to Haase have been referred to Diane Silva-Martinez in the city attorney’s office. She has not returned phone calls.

Much has come to light in recent weeks to dispute many of Haase’s claims.

Apparently, the map Haase says he had never seen before and said had never been published, had been published. It is cited in the March 16 letter from Fish and Wildlife and Fish and Game as the documentary evidence holding the city of San Diego responsible for issuing the grading permit in error. The map was prepared by Dudek and Associates, an environmental sciences consulting firm in Encinitas. Allen M. Jones, now vice-president of H. G. Fenton Company, hired Dudek to evaluate and make recommendations on the Arjons Drive Vernal Pools. Jones told me that at the time Fenton hoped to develop some part of the parcel, so they had it meticulously plotted to see if some portion could be built on. They quickly learned, in Jones’s words, that the parcel is "polka-dotted" with pools, "quite evenly spread across" all 8.7 acres, rendering it undevelopable.

The Dudek report is steeped in "ground-truthing," biologist-jargon for when a person walks the parcel and inventories the specimens present. Both a narrative and a detailed listing of the site’s many species, the report features a map that shows at least 10% of the surface area of the land is vernal pools. Any glance at the map proves vernal pools are evenly distributed from one end of Unit No. 3 to the other. The report also recommends 7 steps to insure the "perpetuation of the current management program." At the time Jones says the site was only passively managed by Fenton with a chainlink fence. (Jones also told me that in the mid-90s, Fenton wanted to convey the parcel to a conservation group for free, but the group—he doesn’t recall the name—wanted a fund to go with it that would pay for managing the pools and their habitat. "We were going to give it away for nothing," Jones said, "but we weren’t going to pay to give it away.")

Haase’s claim that the city is somehow less responsible than Cafagna because his company did not get state and federal permits before grading is, apparently, immaterial since it is unmentioned in the March 16 letter by Fish and Wildlife and Fish and Game. Those agencies, instead, charge the city with failure to implement its own Multiple Species Conservation Program protections for vernal pools. Terms the city violated are spelled out in the City’s Municipal Code and the Land Development Code Biology Guidelines. Moreover, these charges seem to suggest Square One is not culpable: The city should not have given Cafagna the permit unless it saw collateral state and federal permits first.

To combat Haase’s softening of the city’s responsibility is Ellen Bauder’s more stinging rebuke. She believes the city has ample documentation on file to show the Arjons site has been protected, as Royce Riggan maintains, since 1977. Her evidence is two-fold: her own studies of vernal pool complexes in the county published in 1986, and a December, 1996, report generated by the city of San Diego, mapping the Arjons site as the "Miramar Industrial Park Open Space Easement."

In Bauder’s office-lab at SDSU’s biology department, the petite, spirited woman produces a massive two-volume set of endangered species reports, one, three inches thick, and both comb-bound. Written by Bauder in 1986, the tomes are titled San Diego Vernal Pools: Recent and Projected Losses; Their Condition; and Threats to Their Existence, 1979-1990. In Volume II, the Arjons site is listed as an "on-site mitigation Preserve of 8.7 acres." There were two environmental impact reports completed on the site, in 1978 and in 1980. Bauder also keys her sources: one is the Environmental Quality Division, which, at the time, enforced citywide habitat protections.

Bauder’s letter of February 17 to the Union-Tribune states, "the city has copies of [my two-volume] report, as have other jurisdictions in the county, land-use consultants, developers and various organizations." Bauder claims this document should have been consulted as normal practice in the city of San Diego’s Development Review office. San Diego Vernal Pools, funded by the Fish and Wildlife Service and published by Fish and Game, was compiled originally to draw attention to endangered plants in San Diego county. Bauder describes it as "the most widely used [publication] on vernal pools [in San Diego] other than the original surveys of the 1970s.

"I spent a summer when I was a graduate student, sitting in the office of their Environmental Quality Division. They used to have a substantial staff that oversaw all this. They had large map boards, and I simply matched up the topographic maps that showed me where the pools were."

Volume I features foldout maps of every square mile of the county. On the maps are grids indicating where all vernal pools—public and private—were once located (most have since been covered) and grids indicating where the few vernal pools left exist today. There is a clearly drawn designation on the map for the Arjons site.

The other document Bauder unveils is the city’s own December, 1996, Vernal Pool Management Plan, in which Bauder’s 1986 work is also cited. This report, produced by the Environmental Services Division, is an evaluation of how "City-owned vernal pools" are being managed—"practices," "threats," and "recommendations." Admittedly, the Arjons site is not one of the sites appraised in this report because the city has never owned it. Fenton owned the site, sold it to Hanson, who sold it to Square One Development who, finally, graded it. But, in the chapter on "Carroll Canyon Vernal Pool Preserves," (a curious plural!) there is an aerial photograph (dated Dec. 7, 1993) on which two areas are outlined with a thick pen and labeled with paste-on letters: Carroll Canyon Vernal Pool Preserve on the north edge of the canyon, and the Miramar Industrial Open Space Easement on the south edge. The latter area is the Arjons site, here named an "open space easement."

The report also states that (this is 1996) another "interdepartmental team has been established" by the city which will "begin to inventory, develop, and manage recommendations and priorities for . . . privately held preserves." In other words, the city’s plan asserts that they have mapped and evaluated all the city-owned vernal pools while, at the same time, they are aware of preserves privately held. Isn’t that what the Miramar Industrial Open Space Easement is—a privately held preserve? And isn’t the hand of that awareness about private preserves, from the city’s Environmental Services Division, pointing a finger at itself?

I asked Bernard Turgeon, an Associate Planner for the city’s Multiple Species Conservation Program staff, to define "open space easement." An easement, he says, is a "legal restriction on the property" so as to trespass. Almost all open space needs an easement for utility access, for utility crews to reach downed power lines or clogged sewers. Turgeon says perhaps the city labeled Unit No. 3 in the "Vernal Pool Management Plan" an "open space easement" only as a "wish" that it might be preserved. It’s unclear whether the city issued and recorded an easement or a deed restriction that would conserve the Arjons site. It’s also unclear whether the city filed any deed identifying the Arjons site as a set-aside. If no deed exists, then the owners have been doing the entire job of preserving the site without the city’s oversight by passing on memoranda (a fact reported by several newspapers, the counsel for Hanson, and the vice-president of Fenton) that designate the property a protected habitat. If the city does not have a fail-safe list of private property preserves, then how can the city carry out the Multiple Species Conservation Program when it grants permits for grading and development?

(After a search of property transactions and recorded deeds in the County Assessor’s Office related to the Arjons site, I found neither a grant deed nor an easement that officially records the parcel as a preserve, a mitigation site, or an easement.)

Bauder is livid about the city’s role in the Arjons scraping. She is also livid about what she dubs a "developer-driven" Multiple Species Conservation Program. "This [case] needs to be transmitted to federal agencies. Clearly the city does not have the horsepower, should not have an MSCP, should not have any supervisory responsibility for wetlands or endangered species. They are admitting they don’t have the manpower to cope with it. They eliminated their Environmental Quality Division and now call it Development Services. That says it all."

Can’t the federal government exert some sort of sovereignty over the city?

"The feds gave their regulatory power to the city, that’s what the MSCP is! It’s a ‘take’ permit." In other words, the federal government has given the city the right via the Multiple Species Conservation Program to "take" endangered species—destroy them in one spot so long as they preserve or "restore" them in another spot. "The MSCP is being sold as a conservation plan. It is not," Bauder states. While many environmental groups are part of the Multiple Species Conservation Program, Bauder says such coalitions are nothing new. Rather it’s "the same old thing repackaged with mumbo-jumbo."

Cindy Burrascano, the Conservation Chair for the San Diego Chapter of the California Native Plant Society, also believes the city has documentation it could have consulted before issuing the grading permit. One document among several she describes is an Environmental Impact Report, produced by the Multiple Species Conservation Program staff, for which her comments were included in the final draft. Burrascano raised questions about where exactly five sensitive species, one of them, the button celery, were located and whether these species’ habitats were being preserved. The Multiple Species Conservation Program staff responded that one of the habitats being preserved is "on a mesa above Carroll Canyon in Mira Mesa, which though not within the formal preserve boundaries, is nevertheless a protected site. The Carroll Canyon siting is from a mid-1980s bio-technical report entered into the Natural Diversity Database and City staff assume that since the site has been fenced, the population is still extant." The obvious question here is, to what degree are the Multiple Species Conservation Program staff and the City’s office of Planning and Development staff in touch with each other when it comes to preserving habitats under their own conservation plan?

Another document Burrascano shared with me is U. S. Fish and Wildlife Service’s Vernal Pools of Southern California: Recovery Plan. In it, the pools on Unit No. 3 are given a Fish and Game code, I1–"complex, 26 vernal pools; ownership or management, City of San Diego; status, mitigation."

***

In spring, when a midday rain peters out and the cloud-mass begins breaking up, separating into billowy boats that laze on an ocean of sky, the best place for this crystalline moment is on any high coastal mesa. Lopez Ridge, above Penasquitos Canyon, is a good spot. There the glistening clarity of land and sky is electric. The red-orange hard-clay mesa glows, as though touched by Midas. Under the gray-green chaparral, the soil is spongy, moist. Cobbles shine. Gopher holes gape. The orange-glow darkens, and the scene is transformed as though Mickey Mouse has spread his wand over an animator’s sketch. Clouds eventually part enough so that in the distance Black Mountain basks in cool sun. Only 20 minutes earlier was it brimmed with fog. Cast in the mid-50s and windless in the afternoon, it feels like New England in late April, not Southern California in early March, two weeks before the equinox.

On Lopez Ridge and bordering Calle Cristobal alongside the new housing development called Pacific Ridge is a complex of a dozen vernal pools. Fenced on three sides and open on the north to Penasquitos Canyon Preserve (sharing access to the canyon, these pools are among the most protected in the county), the 30-acre site is watched over with scoutmaster loyalty by Mike Kelly. At 55, with short gray-blonde hair and a Boston brogue like JFK, Kelly tells me that he "lightly manages" this habitat. He leads small-group interpretive walks and does exotic weed control, activities that sustain the pools’ existence. He has patrolled this Preserve voluntarily, having lived along its edges for 17 years. The just-retired president of the Friends of Los Penasquitos Canyon Preserve and self-taught biologist, Kelly guides me through the locked gate for which he and the owner, the city’s Environmental Services Division, share a key.

Vernal pools are shallow depressions on the impermeable mesas that inundate with rainwater in winter and spring. The basins dry out completely in the no-rain months of summer. Resting on the mesa’s hard-clay surface, which itself rests on the hardpan, the pools retain water longer than their surroundings; the nonporous soil of these basins incubate seeds, eggs, and cysts in the dry, baking sun, its steadiest year-round state. The next winter rains (or a fluke fall storm) should sprout seed and hatch egg. "Vernal" means spring and spring means growth. Up-and-at-’em in the basins are plants, crustaceans, and amphibians—mesa mint, button celery, woolly marbles, the Pacific tree frog and the spadefoot toad (both of which begin as tadpoles in the pools), and other plants and animals. These species have adapted, at least through the last four Ice Ages, to this cycle of wetting and drying. The pools themselves are remarkably self-sufficient. Without the steadier runoff other wetlands have, the pools’ nutrient content is very low. So they practice a rabid photosynthesis, which accounts for the dense vegetation, the mass of algae and surface-topping plants, and the tepid water.

Some vernal pools are as large as football fields, when there’s enough rain to spread the wealth. In dry years that singularity might become a patchwork of pools that are in proximity but are not biologically dependent. "Complex" is a word for many discrete pools in the same vicinity. On the Del Mar Mesa, just south of the nearly finished Highway 56, there are pools in the chaparral, measuring two- or three-foot square. An unusual size, they are usually hidden by scrub oak.

Kelly, who often admires the pools’ existence or laments their being filled with dirt or trash, recounts dramatic spatial changes in the basins from week to week. Pools side by side may or may not fill in, grow plants, flowers, animals. "In a wet year," he says, "I’ve taken people to see the pools as early as January," though March is generally the most prolific month. "In the old days, you had pools all over San Diego," Kelly says. "So let’s say we went through a 20-year drought. During that drought it would be natural for certain species to drop out of a whole pool complex. The mesa mint might disappear totally from these pools. But it didn’t matter. Because over the next 20 years, seed from mesa mint in pools two miles away would find its way here eventually on the hooves of a deer or in the fur of a coyote."

Kelly wants me to see the delicate, translucent fairy shrimp. Look, he says, for its wandering trail, made by the back-pedaling motion of its 11 pairs of legs on the water’s surface. A diet of algae produces a creature less than a half-an-inch long. The fairy shrimp is perhaps the hardest to see of our endangered species. Only recently listed as endangered, the shrimp has been decimated by development. The first pool we stop at is ten-by-ten feet, muddied from this afternoon’s rain. Kelly reaches a cupped hand into the water and pulls up a pencil-mark-sized flatworm, curving then lengthening in the palmed bubble.

The flatworm’s not an endangered species. Nor are most animals and plants in the pools. Common grasses; water striders skating on top of the water; common weeds like tocalote left standing once the water dries up; organisms like polliwog runamucks of the spadefoot toad or the Pacific tree frog, which will eventually reproduce, in good years, in the thousands, first teeming, then metamorphosing into frogs who leap in and out of the water and sometimes into the mouths of the two-striped garter snake or the occasional rattler, lying in wait. The endangered include the "belly flowers," those plants that you "have to get down on your belly to appreciate," says Kelly. These sympatric plants are the mesa mint and button celery (both listed), and Downingia cuspidata, an ethereal, willowy plant that floats on the surface and resembles alfalfa sprouts. And the fairy shrimp. Mesa mint, Kelly notes, is a "relic species. As climates changed, mesa mint was forced to retreat to vernal pools. And this is where it does best mainly because the pools keep out the competition from certain other species." Mesa mint "tolerates inundation." The mint can be flooded and survive whereas most plants can’t abide the February-March deluge.

Cruising the pool, Kelly squats and sweeps his finger pads across a bit of green fur at the water’s edge. He smells what he’s touched. "Ah, Mesa mint." Just come up, the cotyledon or seed leaf stage. My fingers also yield that strong but pampered odor, the blunt spear of mint. "Imagine what a carpet of these smells like," Kelly says. "People with respiratory problems have to back off. It’s a gorgeous little belly flower."

Looking at a few kidney-shaped pools, I miss the most obvious site. Kelly points it out: a road. The remnants of an access road that the builder used to "export his excess fill. When they were putting Calle Cristobal in, the contractor [Warmington] didn’t like the fact that they had a big canyon over there that [was] filled. So they decided it would be much better"—Kelly’s tone is resentful—"to fill [in another] canyon and put a road in." Trucks and earthmovers going back and forth, he says, "damaged the pools heavily."

The pools on this mesa, once part and parcel of a larger complex, are now partitioned for good, cut off from one another like prisoner cell blocks. Calle Cristobal divides Lopez and Penasquitos canyons and thus bisects the pools; houses now cover their ancient terra firma. Such gentle lows in the chaparral, Kelly explains, have always formed a passage or road. For centuries, native people used the passages to move about, though they respected the basin ecology. Vernal pools are exposed and "on the trail" because chaparral likes well-drained soil. Bushes and shrubs form small rises above the pools. Pools often interlock several depressions in a row. Thus, seeking egress, the short-cut-minded dozer driver follows them. Warmington "grubbed the vegetation," Kelly says, then filled the pools in. He came out with one of the park rangers, took photographs of their deeds, then filed a complaint with the city. The city "got on [Warmington] real fast. They were forced to pull their trailers off the property and restore a couple of pools. They paid big bucks for it." Otherwise, Kelly notes, "You give [the developers] their way, they’ll fill in a finger canyon. Unless we stop them."

Other pools we walk to include a fish-shaped pool with transects, or rebar posts. These are set in a crossing pattern by biologists to compare the plants and animals of one restored pool with a pristine one. Species-composition of one set of pools can differ markedly from another set. Their flux is extreme. In dry years, Kelly says grass will totally fill in. Native species, like the fairy shrimp, form a cyst or dormant larvae sac that is capable of lasting for decades. Pools can bake in the hot sun for months, then suddenly flood in an early November rain and, just as fast, evaporate in a Santa Ana. The fairy shrimp survive by zealously building up (or laying down) a bank of cysts for bad years. Without rain, the cyst may wait another decade. And not all of the dormant species hatch at once. Some know patience, waiting for the right amount of water and the right temperature in the spring to hatch. Humans on top of a 20-year dry spell are ruining the shrimp’s adaptation skills, Kelly says. "In the past, other pools around one pool insured that if species X, dropped out here, it [would revive] over there, because those pools would fill up sooner." With so many pools gone, the ability to recover from us or fickle nature is severely compromised.

Another plant in the pools, the Callitriche, or starwort, exemplifies adaptation. Kelly describes it as "a very plastic [plant with] the ability to have a stout, straight, firm stem, if it’s a dry year. Or, in a wet year, the stem becomes plastic, elongates as much as an inch a day and has a very willowy stem that puts leaves out to float on the water." Kelly believes their "genes contribute to plasticity and elasticity," and they are worthy of genetic decoding because of their acclimatizing ability.

Ellen Bauder, San Diego’s foremost vernal pool biologist, continues to study and learn about the pools’ adaptation. To picture how arid climates have evolved species fully adapted to wet and dry extremes, she produces a bar graph of local rainfall from the mid-1800s to the present. There’s no pattern—"incredibly high years, incredibly low years," she says. "The lower the total amount of the precipitation, the higher the variability and the unpredictability, when it will and where it will come. We’re not a desert, we’re a semi-desert. But our precipitation is very unpredictable.

"So these [vernal pool] organisms have evolved to deal with unpredictability. One of the driest years was 1882-1883 and the wettest was 1883-1884. So back to back we had two of the most extreme years in San Diego county. If any plant had itself boxed into dry adaptations then, the next year, what does it do if it rains like that? That’s what evolution is all about. Organisms don’t get brownie points for [lasting] 10,000 years. They’ve got to make it through every single, solitary year. Human beings included. If one year, nobody [in your species] makes it, you’re gone. All that good behavior means absolutely nothing."

Bauder calls the vernal pool’s adaptation to "extreme variability" its hallmark. "However, [these organisms] did evolve in an unbroken landscape, without this chopping up by roads and destroyed habitat. So if something died out in one area, deer, coyote, squirrel, gopher, mountain lion moved the seeds everywhere. The animals have their own corridors of movement that stretch back for hundreds and hundreds of years. Animals move soil with seeds and fairy shrimp cysts. That’s just one example of something that’s been radically changed. We might keep something going in our lifetime, but we are circumscribing evolution."

As to the soil chemistry of vernal pool basins, Bauder says the verdict is not in yet. For years she’s been studying the texture, or small-particle material, of our clayey soil, amassing reams of reports. She knows that vernal pools have a complex duo nature—"temporary wetland adaptive and soil adaptive, two layers of specificity. Plants are there [in vernal pools] not because they like it better but because they can tolerate it while they like it less." Consequently, she terms the vernal pool habitat a sort of "refuge" for plants that must live where their evolutionary mandate has demanded they live.

Vernal pools are wetlands because animals swim in the water: The fairy shrimp and the spadefoot toad tadpole swim, so their home is a wetland. Wetlands have been defined mostly in terms of the eastern United States, Bauder tells me, where it’s wetter and where the environmental movement to protect them originated. But, in our Mediterranean climate, our idea of a wetland is shaped as much by tidal flows and river estuaries as the slight-to-robust accumulation of rain within a species’ home. Even more difficult for a Western wetland’s identity is the regular irregularity of wetness. Often dry years produce no vernal pools. But that doesn’t mean the species aren’t in the depression. This, all conservationists say, is the hardest thing to sell to the public. This dry basin on top of a very dry and exposed mesa ridge, empty of water 10 months of the year or more—yes, indeed, it is a wetland. But if we know what we’re looking at, we might be able to see, with some imagination, the water for the basin.

***

Once Royce Riggan alerted the press and government agencies about the Arjons grading, Mayor Mickey Cafagna gave one of his few interviews on the matter. Speaking with Poway beat reporter Andrea Moss of the North County Times, he said he was aware pools existed at Miramar Point Industrial Park Unit No. 3, but thought the two acres he graded were empty. He cited the absence of any easement (confirmed by everyone I spoke with), which is "usually required on protected land." Cafagna repeated in a voice-mail message to me that which he had said to Moss—"nothing has been damaged, nothing has been destroyed," in terms of endangered plants and animals or their habitat. Moss also quoted him as saying, "We went to the city of San Diego’s planning department and we asked them, ‘O.K, what’s the story here—is it developable? Is it not developable?’ Well, apparently it is so old, nobody could remember what the story was."

In a follow-up, Moss reported on a letter written by Ellen Bauder and signed by more than 50 California professors, most of them biologists, that called for "meaningful penalties" for the Arjons grading. Moss also wrote that Cafagna considers any scientific "outcry" to be "meaningless" since he has given no one permission to visit the property. But three biologists have told me that it’s not hard for a trained observer of vernal pool habitats to peer through the fence and estimate the damage.

Disputing the notion that there’s been serious damage at the Arjons site is R. Mitchel Beauchamp, National City council member, author of The Flora of San Diego County, and owner of Pacific Southwest Biological Services. A botanist, Beauchamp told me that soon after the site had been cleared, he walked it with Mickey Cafagna and told him that he, Cafagna, had "whacked the chamise" but done "no severe damage." Beauchamp maintains that the site has not been graded, only cleared. The soil is intact, he says, despite the chamise burls having been uprooted and left on the surface, as Royce Riggan stated. Beauchamp found only two "potholes" where the hardpan was ripped. Those, he said, are not reparable. The other pools are. He says it should take a biologist and a couple men with shovels one afternoon to remove the displaced soil from the pools. Then, because vernal pool species are very "resilient," they will return with the spring rains next year; their "habitat" will also return in a few decades. Beauchamp believes "the damage is political," not biological. Fish and Wildlife, he says, will raise a stink and require "$40,000 to $50,000" in fines and/or restoration fees when, really, the whole matter can be fixed in a day.

Ellen Bauder describes Beauchamp as one who "knows a lot about plant mapping and distributions, but is not an ecologist and is not qualified to comment on the ecosystem implications of the brushing and the extensive disturbance of the soil surface and microtopography." For the record, no one, except Cafagna and Beauchamp, has said the site was cleared rather than graded.

Everyone I talked with (even Beauchamp) believes Cafagna knew that the pools covered—"polka-dotted," "spread across"—the lot. Only Cafagna maintains that the pools were located on the part he wasn’t going to grade.

Now that U. S. Fish and Wildlife and the California Department of Fish and Game have accused the city of San Diego of misconduct, where does that leave Cafagna and Square One Development? Was his a "knowing violation"? H. G. Fenton disclosed to Hanson and Hanson disclosed to Square One in memoranda accompanying the sale that the site was a preserve with a habitat of sensitive resources. Both Fenton and Hanson knew about those resources, implying a pattern of real estate disclosure. Does that prove Square One knew also? But, if state and federal agencies have written that the city screwed up by issuing a "grading permit before the developer consulted with state and federal agencies and obtained all necessary state and federal permits," does it follow that Cafagna and Square One’s responsibility might be waived because the city made the mistake? Does it mean nothing that he may have ignored his company’s "prior knowledge"? No prosecution? No fine? No jail-time? Mark Durham, section chief for the Army Corps of Engineers, has said in the San Diego Daily Transcript that rarely will company owners receive fines or jail sentences.

But still a docket of questions remains. Why would Cafagna have bought a parcel of land he may have known held endangered species? Was the purchase and the grading part of a strategy that he believed he could use to eventually develop Unit No. 3? Did Cafagna know the parcel was lost in a limbo of misplaced maps and poor set-aside regulations by the city, and he thought he could get away with it?

Some have suggested that this is how the developer mind-set works. In other words, several methods are available to the crafty developer whereby he might passively allow city, state, and federal agencies to cannibalize themselves over their ingrown regulations, their top-heavy administrations, in order for NuHomes Inc. to get the obvious.

I asked Mike Kelly how developers get around environmental laws.

Part of the Del Mar Mesa, Kelly explains, as well as many other habitat areas in the county, were converted from "farmland" to development by the legal noose of a business loss. What landowners have done, in years past, is to "pull an ag permit" for a parcel of land. They clear the brush (which might include sensitive, threatened, or endangered species), till the soil heavily, and plant tomatoes. Tomatoes yield well for a season or two. But the crop is known to deplete essential nutrients in the soil and, typically, after a few seasons, the parcel will no longer yield. The fact that it’s a dry climate and there’s no source of water on the mesas also insures the tomato growers will move on and declare the land a loss. As a result, once the land is unfit for agriculture and its biological resources have been cleared away, the company can readily have the acreage re-zoned as development property.

Ellen Bauder describes how developers "deep-rip" mesa tops in order to completely ruin vernal pool habitats. One deep-rips the mesa top to get rid of it. The hard-clay soil, the vernal pool bottom, encases the cysts and seeds. Without hard-clay, the pool can never hold water again. Mike Kelly says the most brazen thing he’s heard of happened when the mesa mint was about to be designated an endangered species. The year was 1978. "Pardee and other developers went out and bulldozed their land that had mesa mint. Just before the listing."

Which presents a peculiarity—a twisted but nonetheless plausible version of civil disobedience. Grade a protected property because the vernal pools are present. If you get caught, then the result may be only a small fine, restoration, or, at worst, conveyance of the property to the city. These may qualify as business losses and can be written off. But, if you don’t get caught . . . .

Another uncertainty. If Cafagna knew that the Arjons site was a protected preserve, why, after he bought it, did he not have the parcel reappraised by the County Assessor as a preserve in order to lower the property taxes? According to a senior technician at the County Assessor’s office, once a parcel becomes mitigated its assessed value goes down. Why? Since a preserve, so designated, cannot be developed, its value is automatically less. Apparently, Unit No. 3 had not been reappraised during the 1980s and 1990s because it had not changed hands. But once the 8.7 acres sold in 1998, and again in 1999, the parcel’s assessed value jumped from $331,000 to $756,000.

Cindy Burrascano of the California Native Plant Society poses an intriguing query on this subject in an email to Ellen Bauder: "Since the plot of land had no development value it is strange that a developer would purchase it. Usually developers only purchase an environmentally constrained project such as this if they need mitigation for impacts elsewhere. In this case since the land was already mitigation for other impacts, it couldn’t be used for that purpose." Royce Riggan agrees with Burrascano: Such double-dipping is forbidden. One cannot use the same site for mitigation. There's a reason some developers try and do this, Riggan notes: There are no more vernal pool complexes to use as set-asides—the 3% left, whether on private or public land, have been spoken for.

Asked why the city issued the permit, Burrascano replies that "the city doesn’t have the appropriate controls in place to protect vernal pools. That’s why we’ve joined the vernal pool lawsuit." (This vernal pool lawsuit has been brought by an amalgam of conservation groups against the City of San Diego’s Multiple Species Conservation Program. It is currently in settlement discussions.) She estimates that of the 3% still extant vernal pools in San Diego county, only 70% are actively managed and protected, while the other 30% are in trouble because, predominantly in private hands, no set-aside laws govern them. She describes other vernal pool gradings at Miramar College and the Winterwood School. The city of Chula Vista, she says, has "gotten rid of all their sites. [Recently] a developer gave one site to a school district. Nobody wants to stop a school from being built on the land, so Fish and Wildlife let them do it."

Burruscano says if a species is state- and federal-listed, then "there should be enforcement of the Endangered Species Act, such that pools wouldn’t be impacted. But I have regularly seen that ignored. So, if someone wishes to enforce the Endangered Species Act by taking someone to court—that’s what it involves nowadays. If you want to get the law enforced, you have to be willing to go to court. And most environmental groups are not willing to do that." What keeps them from suing is money and time, she says. Groups will also "get a negative image, so most environmentalists like to work with people."

Burrascano hypothesizes that the reason Square One did the grading was that they knew the land had some protected status and knew the city of San Diego and those responsible for the Multiple Species Conservation Program would not enforce the law. "Why would you buy the property unless you thought the system was so weak that you could get away with it?" David Hogan concurs. "Right now you can be certain that property owners throughout the county are watching this particular case very closely to see whether they can incorporate the illegal destruction of our natural heritage into their cost of doing business. If the agencies let the Mayor of Poway off, without requiring both restoration and penalties, then it will be just the cost of doing business."

***

Across Penasquitos Canyon and in the southwest corner of Rancho Penasquitos is Torrey Highlands. The geographic term is the Del Mar Mesa, an undeveloped five-mile stretch that borders the southern edge of Highway 56, coupling I-5 to I-15. This huge mesa is home to dozens of vernal pools. Many are on set-asides, small allotments of land created via mitigation, in some cases maintained with fences or concrete dividers. Kelly says the Del Mar Mesa’s patchwork of owners doesn’t bode well for its preservation. What he fears the landowners will do here is to incorporate only a small subset of vernal pools into a vast new development.

Kelly and I are in pursuit of fairy shrimp this clear March afternoon and that football-field-big pool he’s wanted me to see. Today we walk past dozens of pools, many in the ruts of roads from trucks that still jostle across this mesa. Each of the pools is thick with algae; some are muddier than others; most teem with tadpoles. But still no shrimp. One unexpected sight are the numerous dry depressions where, in a wet year (the year 2000 has not been one), there’d be dozens more pools.

We enter an area called Vista Alegre, finding more pools, one holding obscene piles of cardboard, black plastic, crushed paint cans. "Ooo, what’s that?" Kelly says, touching the water. "There’s a shrimp." He says it’s long and translucent. "See it?" What I can make out looks like an near-invisible minnow. Shrimp swim upside down, Kelly explains, as they filter-feed. They take a week to hatch, mature and reproduce over two to three weeks, and usually die as the pond dries up. They are a food source for the more robust spadefoot toad, especially in its polliwog stage.

Like a wagon scout, Kelly stands to take a long troubled look around the area. Then comes an unexpected conservation success story.

"This area, Vista Alegre, was slated for development. When the proposal came forward, Dave Hogan called me and said, ‘they say there aren’t any vernal pools there, but I think there are. Let’s go look.’ We came out with the camera. It wasn’t a real wet year but we still documented pools. We commented on the environmental impact report and Ellen Bauder confirmed that we were right. And we found some endangered species. The developer then backed off [his] proposal to bring those houses there"—he points to a line of two-stories marshaled behind wooden fences a half-mile away—"all the way over to here. This land will be conserved."

That’s all it took?

"All we did was comment," he continues, "on the environmental impact report; it’s a bad report. We argued that their facts were wrong. An EIR is trash, if you can show that it’s not factually based. In this case, we think they knew there were vernal pools here, and they were just making use of one of these [biology] consulting companies that will prostitute itself for their client. They will shade a report or in this case, [say], ‘Oh, what vernal pools?’ Unless you know the land the way Dave Hogan knows the [Del Mar] Mesa or the way I or other folks with the Friends know our canyon, yeah, somebody needs to check."

Just then David Hogan, Kelly’s partner in protest, ambles up the dusty path. I had called him earlier to join us and he said he would, after flying in from a meeting in San Jose. Hogan is the San Diego ombudsman for the Tucson-based Center for Biological Diversity. The Center is funded by grants and membership and specializes in civil suits on behalf of endangered species and their habitat. Hogan tells me that the Center has just "topped" 135 lawsuits of which 85% have been successful. Among the dozens of developers, builders, city and county government agencies they have brought lawsuits against is their current main target, the U.S. Fish and Wildlife Service.

At 30, Hogan is a slow-moving string-bean of a man, who grew up in Solana Beach where he spent as much of his time exploring San Elijo Lagoon and other preserves. "I saw the [land] go from nothing east of I-5 to today where you have development all the way to Ramona." He says he felt "much more in common with the wildlife that lived there than with many of my peers. This is my home," and he spreads a rising hand to the scrub oak and chamise. He describes himself as a refugee from his native chaparral. "My home has been lost; this is my home." He flies throughout the west for the Center, monitoring on-going conservation projects or civil actions. He does as much of the legal work as he can before a lawyer (they retain several pro-bono attorneys) argues the Center’s case before a judge. Hogan’s aim is to "fight for as much conversation in San Diego county" as he can. His "satellite office" is his Warner Springs home, with fax, computers, phones, and a garage stuffed with filing cabinets.

"Beavers build dams; I fight developers. I don’t have any choice."

The three of us come up to a fenced-in area, with concrete dividers adding an ugly, protective layer against vehicle intrusion. The fence, though, has been bent or cut away in several body-sized holes. The dividers are CalTrans’ idea of managing a set-aside parcel, this one part of a mitigation for Highway 52. The site is home to a few natural pools. The site is also home to a few artificial pools, created by biologists at San Diego State to see if vernal pools well grow from scratch. In addition to pristine and restored pools, this is a third type. Artificial pools have been dug and supplied with seeds and cysts, but the experiment has not yielded consistent growth. Kelly says "one of the problems of accepting mitigation is that the track record is not very good. None of the created pools approach the stability and the diversity of the natural pools. But we’re talking about [natural] pools that have formed over geologic time. So it may be that even a 50-year horizon is not enough time," to judge how well these human-made basins will do.

Finally, at the much-touted football-sized vernal pool—surprise, it’s dry. Nevertheless, the basin is impressive with its shallow, almost uniform depression, a pan-shape ringed with chamise. The gophers have been busy roto-tilling the soil, making small piles of moist dirt. Without a big vernal pool to observe, Kelly changes focus. He knows there’s button celery here on the periphery; he’s seen it before. Quickly, he’s on it. The celery’s small with prickly leaves, four robust tubule prongs sticking up, the arms of two victorious wrestlers. We find two types, one, in its aquatic stage, another, "going terrestrial," Hogan phrases it. The button celery’s evolution (not unlike most conservation groups) has meant a radical change in its physiology so that it can sprout in a pool, then survive after the pool dries up.

Kelly leaves—he has a chance to "bill some hours" in the field today—so Hogan and I continue walking through the chaparral of Del Mar Mesa, a spot he knows intimately. On our way to what he describes as a Native American site, he talks about vernal pools. The first thing pools need is preservation. "You can’t re-create a vernal pool eco-system. We’re far too arrogant to think we can. It’s just too complex. It’s complex because of water chemistry, soil chemistry, soil compaction conditions, the number of species that live in it. We haven’t even identified all the species that exist in a vernal pool, let alone all the conditions that allow them to exist in that single spot."

The place we come to at last has a ring of large cobbles, with a small mound and more cobbles in the center. It seems hidden, a good mile or two in any direction from new houses. Behind the ring and under a sugar bush is a cairn of cobbles, then a large rectangle of rocks inset in the ground. Small basins abound everywhere—vernal pools in a wet year.

"We know there were puberty ceremonies and fertility ceremonies for young women," Hogan says. "In particular, young women were laid out in pits of rocks, where rocks had been heated and then lined a pit. The women were buried up to their necks in dirt, almost like a sauna."

Returning to our cars, Hogan explains why he and his Center has had to sue the U.S. Fish and Wildlife Service. "The agency you’d think is charged with enforcing the Endangered Species Act? I know, it’s crazy. Fish and Wildlife Service is willing to implement the Endangered Species Act only to a degree. And that degree is dictated by politics. They don’t want the act to be as strong as it was written. Congress, when it came up with the act, even after amending it twice in the early ’80s, made it clear that there are two primary provisions for protection of endangered wildlife. First is to list them as threatened or endangered and that brings with it protection for individuals of that species. We can’t go over there and step on a San Diego fairy shrimp. But that doesn’t bring protection for the habitat. So Congress had the foresight to come up with what’s known as ‘critical habitat.’ A second tier of protection. Fish and Wildlife can get out of that only in rare circumstances, when they don’t have enough information and so they wait another year. Or they can say a critical habitat is not a prudent [designation]. For example, let’s say there’s a critical habitat for a butterfly with an endangered population. Fish and Wildlife can make an argument that if maps have never been published for the population before and they publish a map showing a critical habitat, then collectors will flock there and take the last of the butterflies. There’s only a couple instances where Fish and Wildlife has used that excuse. But they have used that excuse with a passion so to speak. In every circumstance up until recently they would deny critical habitat and claim that it didn’t provide protection above and beyond those provided by the listing as threatened or endangered. But, in so doing, they’re flauting the will of Congress. We’re constantly battling Fish and Wildlife over their reluctance, and often times complete failure, to carry out the will of Congress."

I ask Hogan to explain why the Center for Biological Diversity would have to sue Fish and Wildlife. Why wouldn’t they be more on the side of the environment?

"The thought process behind Fish and Wildlife Service bureaucrats undermining federal wildlife protection law is not something that I can grasp to the extent that I can explain—because it’s irrational."

***

Later that same day, David Hogan and I visit the Arjons site, and it’s obvious the difference between what’s been scraped and what’s pristine. The two scraped acres with rain-softened dozer treads look like a small tank training ground. This eastern chunk of the parcel is completely denuded of vegetation. Cindy Burrascano confirms the total absence of chaparral from her visit to the site in March. Ellen Bauder, who peered through the fence this month, says "it’s worse than I imagined."

David Hogan’s assessment of the damage: "They didn’t destroy the topography here; you still have pool basins and you still have mounds. There’s substantial restoration potential here. It’ll never be the same as it was historically. But there’s a good chance we can return this as solid habitat for endangered species." I wonder if in fact the mesa top has been "deep-ripped." The ground is cleared. But then I recall Royce Riggan’s late-January assessment of the lignotubers littered on the surface. Have the woody burls that he saw been removed?

"People forget," Hogan continues, "including the city, in allowing developments next to vernal pools"—and here, a delivery truck’s backup beeper beats the air—"even if you set the pool aside, that pool is part of a complex eco-system, where insects are interacting between the pool and the vegetation to the edge of the mesa. It’s important that you not cut away an area that’s on the mesa top so that the water table is not ruined. You have to have the water table perched just under the layer for the entire mesa top. There is no separation between that basin of water and the mound right next to it. At one time it supported wildlife species where a certain pollinating bee might have gone back and forth—maybe that’s where the bee’s eggs were laid, maybe it was in the dirt on that mound. And that bee was critical for the pollination of the vernal pool flowers.

"The vernal pool cannot be protected in a museum-like environment. It’s part of a dynamic, coastal mesa-top eco-system," Hogan says, then stares at the distant coastal fog. On Arjons, a cement mixer, shifting gears, its drum revolving, barrels by, leaving a brown-stained path on the roadway.

I, too, have known that dynamism of an ecosystem. During especially wet springs we often hear the croaking of a thousand frogs through our night-open window. Having emerged from their pond homes and polliwog larvae, the frogs sing like tribal initiates out beyond our backyard fence on the mesa top. Once they disperse, most get eaten while a few hop down to the canyon, where the food is plentiful and a stagnant pool might linger till summer. It always strikes me how joyful and dire that choral croak is, hailing the quick arrival and quicker passing of the season. Paul Zedler, a retired biologist from San Diego State University, put it well: "The main reason we should preserve these pools is that they give us a sense of place; they’re part of a landscape that used to be. In a way, these pools define what it is to be in California in the spring."