On January 26, the U.S. Fish and Wildlife Service (“USFWS”) issued a letter to the California High-Speed Rail Authority (the “Authority”) that found that the Authority’s contractors are not in compliance with the Authority’s original environmental commitments to the USFWS in performing the preliminary work on the first segment of the high-speed rail project (the “Project”).
The USFWS has alleged that the Authority, the Federal Railroad Administration, and with the contractor hired for the construction of the first segment, failed to comply with the conditions of the federal biological opinion issued to the Authority in 2012. The biological opinion sets forth terms describing how the Authority should treat sensitive habitat for endangered species during the construction period of the Project. Last summer, in preparation of the groundbreaking for construction of the first segment, the contractors prepared equipment-staging and test-piling sites, however, these sites were prepared outside of the environmental footprint agreed upon by the Authority and the USFWS. This work violated the terms of the USFWS biological opinion. More importantly, the sites disrupted an area considered San Joaquin Kit Fox habitat.
The San Joaquin Kit Fox is a small fox, weighing about five pounds and has been on the Federal Endangered Species List since 1967 because of several factors, including, but not limited to, habitat loss and degradation resulting from human activity, such as the conversion of historic habitat to agriculture, as well as rodent-poisoning efforts. The kit fox is largely nocturnal and uses underground burrows as dens. The Authority’s preliminary work for the Project that disrupted the kit fox habitat is what the USFWS is now describing as an “unauthorized take” of kit fox habitat.
The Endangered Species Act prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” any federally-listed threatened or endangered species. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” A violations of the Endangered Species Act is a Class A Misdemeanor, carrying a maximum corporate penalty of 1 year incarceration, a $200,000.00 fine, or both.
The USFWS has stated that the Authority is currently working cooperatively with the USFWS to remedy these violations and no fines or penalties will be assessed at this time.