Subscribe!

 Full Posts

Bloglines Subscribe in Bloglines
Newsgator Subscribe in NewsGator Online
MyYahoo
Google Add to Google
netvibes Add to Netvibes

Copyleft

ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

Creative Commons License

florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

gatorlogo2.gif

Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

uvaswords.jpg

Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

Is $21 million in attorney's fees the best way to spend conservation dollars?

06/28/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Attorney's fees play a significant role in Endangered Species Act litigation and the shaping of federal environmental policy. But for years, ESAblawg has openly questioned whether the fee-shifting provision are beneficial policy or a financial lubricant for a counterproductive environmental litigation industry.  With the federal debt exceeding $15 trillion, the matter of money management deserves at least some of the scrutiny it is currently receiving from the U.S. House of Representatives Natural Resources Committee.

To the dismay of some Congressmen, laws such as the Equal Access to Justice Act (EAJA), and various citizen suit provisions of environmental laws such as Section 11 of the ESA, require litigants to recover attorneys fees (and sometimes costs, too) from the federal government.  Some statutes require the litigants to be a prevailing party, others merely require that the litigation be a catalyst for governmental action. Either way, however, the government pays millions of dollars to lawyers who succeed in persuading the courts to order something that the government did not do, or did not want to do.

But one of the thorniest complications with any effort to understand how much (or how little) is gained from these laws is simply the data.  Sadly, we do not know quite how much is spent, on what, or why. According to an April 2012 Government Accountability Office review of the amount of attorney's fees paid by the Departments of Agriculture and Interior:

Most USDA and Interior agencies did not have readily available information on attorney fee claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 through 2010. As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments, or the statutes under which the cases were brought for the claims over the 11-year period. Both USDA and Interior officials stated that given the decentralized nature of their departments and the absence of an external requirement to track or report on attorney fee information, decisions such as whether to track attorney fee data and the manner in which to do so are best handled at the agency level. Specifically, officials from 65 of the 75 USDA and Interior agencies we contacted told us that they did not track or could not readily provide us with this information. The remaining 10 USDA and Interior agencies either had mechanisms to track information on attorney fees or were able to compile this information manually using hard copy files or directed us to publicly available information sources where we could obtain the information. However, the extent to which these agencies had attorney fee information available for the 11-year period varied. Given this difference among these 10 agencies as well as various limitations—such as 5 USDA and Interior agencies not maintaining data about claims for attorney fees that were filed but denied—it is difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes.

The table below reflects GAO's best efforts to analyze Treasury data, but given the conclusion above, Congressional desire to reform laws related to fee shifting of attorney's fees seems understandable.

Table 5: Statute under Which Case Was Brought, Amount Paid, and Number of Payments Paid by Treasury
from the Judgment Fund on Behalf of Interior, March 2001 through September 2010
Statute under which case was broughta Attorney fees and costs # of payments
Endangered Species Act, 16 U.S.C. § 1540
$21,298,971b
238
Civil Rights Act Title VII, 42 U.S.C. § 2000e-16
1,243,194
38
Tucker Act (inverse condemnation & other claims), 28 U.S.C. § 1491
1,086,185
2
Privacy Act, 5 U.S.C. § 552a
953,180
1
Freedom of Information Act, 5 U.S.C. § 552
658,561
26
Age Discrimination In Employment Act, 29 U.S.C. § 633a
565,029
2
Outer Continental Shelf Lands Act, 43 U.S.C. § 1349
390,000
1
Clean Water Act, 33 U.S.C. § 1365
252,947
6
Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270
240,825
4
Fair Labor Standards Act, 29 U.S.C. § 216
228,413
5
American Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. §§ 4011, 162a
149,014
1
Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3117
134,544
3
National Historic Preservation Act, 16 U.S.C. § 470w-4
110,661
4
Resource Conservation and Recovery Act, 42 U.S.C. § 6972
60,952
1
Payments for which statute could not be determined
52,087
4
Rehabilitation Act (disability discrimination), 29 U.S.C. §§ 791, 794a
25,523
1
Tucker Act (tort claim), 28 U.S.C. § 1346
7,774
1
Total
$27,457,860
338


Table from U.S. Government Accountability Office, Letter to Congressional Requesters (April 12, 2012)
Subject: Limited Data Available on USDA and Interior Attorney Fee Claims and Payments
___

Ideally, if reform comes, it will be across the board, not just a political exercise in limiting environmental litigation. But the current leader of the dialogue for reform is Congressman Doc Hastings, who the environmental community insists is no friend of the ESA. See Endangered Species Coalition. Mr. Hastings recent support of protection for Columbia River salmon by allowing take of salmon-feasting sea lions adds nuance to the analysis. But then again, the title of the most recent hearing -- Oversight Hearing on "Taxpayer-Funded Litigation: Benefitting Lawyers and Harming Species, Jobs and Schools" (June 19,2012) -- is anything but nuanced.

Nuance (and a sense of irony) seems to be lacking from the Center for Biological Diversity, too. Reacting to the calls for reform, CBD recently declared that "Hastings Relies on False Information in Attacks on Endangered Species Cases." See press release.  The CBD press release also contains distortions. To begin with, in an effort to minimize the $553,000 collected by CBD, they compare the figure their one organization received to the amounts collected by "industry groups."  (Mr. Hastings, in reply, claims that CBD ignored the costs of the payments to third party lawyers who represented CBD.) But suspect accounting is not the only failure in CBD's logic.

In an effort to substantiate the overall benefits of the ESA, CBD developed a report on the recovery trends of endangered and threatened species. In the analysis, CBD explained that recovery takes as long as 46 years, and concluded 90 percent of species are recovering on time. See CBD report. Just give it time, they argue, and thus CBD rejects criticism that the ESA hasn't achieved its goals of species recovery. But that logic applies equally to CBD; its lawsuits usually seek instantaneous action by the government because of delayed responses to CBD's demands. Aren't those lawsuits equally premature, and subject to the same "give it time" response? Indeed, of the 100 representative species considered in CBD's own report, 67 of them were listed before CBD even existed. In other words, these species were put on their path towards recovery without the need for attorney's fees or environmental lawsuits filed by CBD.  Perhaps the litigation (and the attorney's fees payments) are not as necessary as CBD (founded in 1989) would have us believe?

Ignore CBD for a moment. (Yes, that's hard for ESA-watchers like me.) Any debate over the shifting of attorney's fees needs to recognize that the issue involves more than just the direct payment of dollars from the federal treasury to a single litigant. Every lawsuit filed by a non-profit group (or an industry group) also requires the federal government to pay for the Department of Justice lawyers, agency staff, and the federal court system that supports the case. And that raises another problem: the perverse incentive of the fee-shifting provisions, and its potential to interfere with settlement of lawsuits. Many laws require the litigant to be a "prevailing party." So, given the choice of a settlement without fees, or a roll-of-the-dice for a court order resulting in the payment of attorney's fees, many litigants will choose the latter. And as a result, in the absence of a settlement, the taxpayers keep paying, not only for the plaintiff litigant, but also for the DOJ lawyers, the agency staff, and the courts. See, e.g. "Settlement Offers Conditioned Upon Waiver of Attorney's Fees: Policy, Legal and Ethical Considerations," 131 U. Pa. L. Rev. 793 (1983).

Furthermore, if and when attorney's fees are paid, they are not paid at actual cost. For example, assume that a CBD lawyer is paid $70,000 annually. If CBD receives an attorney's fees award, the fees gained by are not based on a pro-rated portion of that attorney's time. Instead, a "lodestar" calculation of (actual hours) x (billable hourly rate) is performed to determine the payment. CBD (and every other litigant) has an incentive to file in the jurisdictions with the highest possible attorney's fees hourly rate, and to provide "proof" of the local "market rate" which may be subject to "enhancement" for expertise, culminating in rates exceeding $450 per hour. (San Francisco is home of the Sierra Club, and New York City is home of Natural Resources Defense Council.) The result: 40 hours of work by a Tucson, AZ based senior staff attorney, estimated (probably overestimated) as costing CBD approximately $2000 in salary and benefits, can earn an attorney's fees award of as much as $18,000.  It's just math.

As the New York Times notes in discussing this issue, there is room for argument by both critics and supporters of attorney's fees payments for environmental litigation. Indeed, there is reason for caution. In his testimony before Congress, Lewis & Clark law professor Dan Rohlf (a worthy adversary, by the way) testified that "Litigation does not harm species, jobs, or schools; indeed, quite the opposite is true." He went on to explain that taxpayer-funded ESA litigation helps fund clinics and train new lawyers who advocate for species and other worthy causes, who protect the public interest, and who ensure that government abuses are caught by citizen watchdogs. The concept of fee shifting has especially noble origins, seeking to ensure that the poor had access to justice when government wrongdoing was proven in court. See Congressional debate discussed on ESAblawg.

To maintain those ideals and values, and to preserve the fairness of EAJA, any reform of fee shifting laws could also include exceptions for the isolated individual in certain types of cases -- the elderly lady forced to hire a lawyer over a social security disability claim, or the special needs child suing over educational access, or maybe even an environmental watchdog who discovers an egregious government error.  See GAO Report on fee shifting statutes. But many reasonable reforms could still be pursued, such as (a) setting a lower, fixed, inflation adjusted hourly rate paid for all federal cases, (b) eliminating fee "enhancements" for expertise, (c) restricting the criteria for various types of organizations to even be eligible for seeking fees, (d) capping the total amount that can be collected by a litigant, both on an annual and on a longer-term basis, and (e) increasing the government's ability to argue that a decision was "substantially justified" as a basis for denying attorney's fees.

As CBD said in its own press release: "If we’re going to have a real discussion about the best way to save endangered species, it has to be based on facts."  True enough. So consider this fact: of the dollars it could account for, GAO reported that $21,298,971 in attorney's fees was paid in Endangered Species Act related cases against Interior during the period from 2001-2010. Those dollars, in the context of federal funding for conservation, are significant. By comparison, the proposed 2013 budget for the Department of Interior's entire listing program is $22,431,000 (a figure that has dramatically increased in recent years).   These numbers cannot be ignored. When federal debt management is part of the discussion, eliminating the payout of attorney's fees to multi-million dollar enterprises -- for-profit and non-profit alike -- seems like an easy choice. The Sierra Club has a $100 million budget in 2012. See New York Times. NRDC has a $95 million budget. See Marc Gunther. Even niche player CBD has a operating budget of $5.4, and $10 million in assets. See CBD Annual Report (2011).  Given these figures, reform of attorney's fee shifting provisions is not the outlandish idea that the environmental community suggests.  

But perhaps the most important fact is this: environmental groups like CBD, Sierra Club, NRDC and many more have already proven themselves to be capable voices for endangered and threatened species. These well financed groups, and their lawyers, will not disappear, even if the amount paid pursuant to fee shifting statutes were reduced. If the environmental advocates actually had to watch their own dollars, and lacked the incentive of attorney's fees payouts in every case, then many lawsuits might not be filed, and perhaps only the most deserving cases would make it to court. In the end, the species these groups hope to protect would be better served if our federal conservation dollars were spent on something other than environmental lawyers. As Professor Rohlf, an advocate for fee shifting, admitted in his written Congressional testimony: "the single most effective step that can be taken to recover threatened and endangered species – and thereby increase the pace of delistings – is to support more funding for recovery efforts."  

CBDmeetingHQ.jpg
While statutes requiring the government to pay attorney's fees have their flaws, as explained in this musing, and while reasonable minds may differ over some of the policy choices at issue, any suggestion that the non-profit environmental lawyers are getting wildly rich on taxpayer dollars is off the mark. The Executive Director's annual salary is $123,961, and other Director salaries range from $47,000 to  $102,000 annually. See CBD Form 990. Even the CBD headquarters is thrifty; as reported in the Tucson Citizen (source of the CBD "in action" headquarters meeting photo above), the Center for Biological Diversity headquarters is a small warehouse, borrowed from a gem dealer. CBD even exits the facility for three weeks each winter for a gem, mineral & fossil show.



Using Gulf Disaster Funds for Florida Boat Ramp Project Sets a Sorry Precedent

04/24/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

In the midst of our Earth Day celebrations comes an example of just how difficult it can be for humanity to self sacrifice, especially when money is involved. Deepwater Horizon recovery money, collected pursuant to the Oil Pollution Act, and intended for remediation of harms to natural resources, will be used to build new and repaired boat ramps in Florida.

In April 2010, the Deepwater Horizon oil disaster badly damaged the Gulf of Mexico.  The environmental impacts are still being felt, such as unprecedented numbers of dolphin strandings or snapper with lesions or oil coating deepwater reefs on the Gulf floor.  To help offset those impacts, BP and the Oil Pollution Act Trustees (including representatives from the affected Gulf states, NOAA and the Department of the Interior) entered into an unprecedented agreement whereby BP set aside one billion dollars to fund early restoration projects. The agreement also committed to a public review process, and many groups weighed in, suggesting options for spending the money. Last week, with the release of the Deepwater Horizon Oil Spill Phase I Early Restoration Plan and Environmental Assessment, the public got a preview of how the Oil Pollution Act is being implemented. The initial plan includes funding for two oyster projects, two marsh projects, a nearshore artificial reef project, two dune projects, and yes, really, boat ramps in Florida.

Reasonable minds can differ over how the Oil Pollution Act funds should be allocated. The Marine Fisheries Advisory Committee, for example, emphasized the need to focus on ecosystems, and especially the regional estuaries, which function as the kidneys for the entire Gulf of Mexico.  Projects to benefit oysters, marshes, reefs and dunes reflect a similar kind of thinking. But the Florida Boat Ramp Enhancement and Construction Project, as it is called, is something altogether different. At an expense of $5,067,255, this project includes four boat ramp facilities for human use.  It defies the spirit of the Oil Pollution Act, if not worse.

The purpose of the Oil Pollution Act was to ensure that the party responsible for an oil spill “is liable for the removal costs and damages.”  Sec. 1002(a). Funds paid by the responsible party are expected to pay for damages, in one of six categories, including: (1) damages to natural resources; (2) damages for injury to real or personal property; (3) loss of subsistence use of natural resources; (4) damages to revenues (including taxes, royalties compensate for lost recreational opportunities for the public, rents, fees, or net profit shares); (5) damages to profits and earning capacity; (6) damages for net costs of providing increased or additional public services (such fire, safety, or health services).  In addition, the definitions section of the Oil Pollution Act, Sec. 1001(20), further says that ‘‘natural resources’’ includes land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States.  Upon a cursory reading, none of this seems to justify a sparkling new boat ramp (or even a repaired ramp) in Escambia County.

The catch, however, can be found in Sec. 1002(b)(2)(A), which says that “Damages for injury to, destruction of, loss of, or loss of use of, natural  resources, including the reasonable costs of assessing the damage… shall be recoverable by a United States trustee…”
The Trustees report clearly intends to rely on that provision, explaining that the seven proposed projects were intended to “address injuries in four of the five impacted states, on the coast and offshore, to mammals and marine organisms, and/or compensate for lost recreational opportunities for the public.”  In other words, the statutory reference to “the loss of use of natural resources” has now been interpreted to mean that the temporary loss of recreational boating created liability, and justifies a new boat ramp – for people – as a remedy.

But the detailed explanation of the boat ramp project makes the analysis even harder to swallow. “This project will help address the reduced quality and quantity of recreational activities (e.g., boating and fishing) in Florida attributable to the Deepwater Horizon Oil Spill and response activities,” says the Phase I Early Restoration Plan documentation. But if the quantity and quality of recreation has declined, because the Deepwater Horizon disaster has marred its recreational beauty, then the solution cannot be more recreational access. The logic is reminiscent of a famous Yogi Berra quote: nobody goes there anymore, because it's too crowded.

Perhaps, if an Escambia County boat ramp had been utterly destroyed by the oil spill, reconstruction would be appropriate. Compensating recreational boating businesses might also seem appropriate.  Even the restoration of an oil-covered party-boat island that weekend warriors once recreated upon would be within the realm of reason.  Building a new boat ramp, however –- which in turn will result in more boats (and maybe more decline in quality of local natural resources) –- is not a reasonable way to compensate for the natural resources damages already done by the Deepwater Horizon disaster.

If the residents of the Florida panhandle needed a new boat ramp, then Escambia County and the State of Florida could have paid for it. Indeed, the Boat Ramp might even be a good idea, and the project might create an economic boost deserving of stimulus money. But the use of Oil Pollution Act funds for this purpose sets a dangerous new precedent. What's next: a few more waterfront buildings? After all, Deepwater Horizon temporarily destroyed our recreational views.

P.S. Happy Earth Day.

navypt02frame.jpg
The Florida Boat Ramp Enhancement and Construction Project includes five parts: (1) repairing an existing boat ramp in Pensacola Bay (Navy Point Park Public Boat Ramp N30-22.8’/W087-16.9’) (2) constructing a new boat ramp facility in Pensacola Bay (Mahogany Mill Public Boat Ramp N30-23.9’/W087-14.9’); (3) repairing and modifying an existing boat ramp in Perdido Bay (Galvez Landing Public Boat Ramp N30-18.8’/W087-26.5’) (4) constructing a new boat ramp facility in Perdido Bay (Perdido Public Boat Ramp N30-1.4’/W087-26.7’), and (5) visitor information kiosks to provide environmental education to boaters regarding water quality and sustainable practices for utilization of marine, estuarine and coastal resources in Florida. (Image from escambia county online)

RELATED LINKS:  Dollar and Sins: The Oil Spill Penance Race Begins, by Jeremy Morrison at Independent News


Two Ninth Circuit Opinions, Twenty Years of Litigation, and a Twinge of Deja Vu

03/15/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Two separate Ninth Circuit opinions, filed on the same day, offer important lessons for Endangered Species Act watchers. The first one reminded us that Congress can choose to repeal our environmental laws. The second one reminded us why Congress would make such a choice.

In Alliance for the Wild Rockies v. Salazar, the 9th Circuit upheld, as constitutional, Section 1713 of the 2011 Appropriations Act. That historic (or depending upon your perspective, infamous) provision ordered the Secretary of the Interior to remove some distinct population segments of gray wolves from the Endangered Species Act's protections. Attempting to reverse the Congressional decision, the environmental advocacy groups raised separation of powers concerns. In other words, they claimed that while the executive was implementing the issues, and the courts were adjudicating the issues, Congress could not interfere by forcing the court to rule a certain way. But Congress was no so daft. Instead, Section 1713 provides in its entirety as follows:

"Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010."

Reading this language, the 9th Circuit recognized that "Congress had changed the law, not told the Court that it should decide the case differently under the same law." Defeat of the separation of powers argument was predictable, based on Supreme Court precedent.  Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), considered and upheld the constitutionality of an appropriations provision that 'amended' or changed the applicable environmental laws. Still, even though this constitutional analysis was fairly predictable, Alliance for the Wild Rockies remains noteworthy for its explanation of the course of events that led to the decision:

"Over the last decade, the United States Fish and Wildlife Service (“FWS”) has repeatedly attempted to remove all or parts of the distinct population of gray wolves in the northern Rocky Mountains from the protections of the ESA. These efforts have been struck down by the courts for violating the ESA. See, e.g., Defenders of Wildlife v. Sec’y, U.S. Dep’t of Interior, 354 F. Supp. 2d 1156 (D. Or. 2005); Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008). In 2009, the agency issued what is known as the “2009 Rule,” 50 C.F.R. Part 17, 74 Fed. Reg. 15,123. It designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except those in Wyoming. The district court struck down the 2009 Rule as violating the ESA because the statute does not permit partial delisting of a distinct population segment. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).... Meanwhile, proponents of the 2009 Rule began exploring ways to delist the gray wolves through legislation. These efforts culminated in Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which the President signed into law on April 15, 2011. Pub. L. 112-10, 125 Stat. 38 (2011). Section 1713 orders the Secretary of the Interior to reissue the 2009 Rule without regard to the ESA and without judicial review."

These eight sentences, summarizing ten years of litigation, hint at the pent up frustration that led to the delisting of an iconic species. Regardless of whether the litigants and jurists were right or wrong, the simple fact was that they repeatedly stymied the executive branch from implementing its policy desires. Congress then made sure that its voice was heard in the process, reforming the implementation of the ESA.

The facts of a contemporaneous Ninth Circuit ruling in Turtle Island Restoration Network v. Department of Commerce seem hauntingly familiar.  The effects of the Western Pacific Fishery on sea turtles has been the subject of extensive regulation, and litigation, for a decade -- just like the wolf. See, e.g. Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 940 (9th Cir. 2006). In a Final Rule published in 2009, amended in 2010, and passed after substantial process by and input from the Western Pacific Fishery Management Council, the National Marine Fisheries Service modified applicable Fishery regulations, seeking to optimize the Fishery’s yield without jeopardizing the continued existence of sea turtle species. But after yet another round of litigation with the environmental advocates, the federal defendants' settled the dispute. Over the objections of the longline fishery advocates, the Consent Decree ordered by the U.S. District Court vacated portions of the Final Rule, reinstated lower incidental loggerhead turtle take limits from a 2004 biological opinion, and ordered NMFS to promulgate a new regulation. See 76 Fed. Reg. 13,298 (March 11, 2011)(announcement complying with court order.) As the Ninth Circuit explained, "the practical effect of the district court’s order is not to affect the Final Rule... except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits."  Or as it explained again, later in the opinion, "the Consent Decree merely temporarily restores the status quo ante pending new agency action and does not promulgate a new substantive rule."

The Ninth Circuit's analysis may be entirely correct, and the Consent Decree, as agreed upon by the federal defendants and the environmental advocates, might be entirely reasonable. But as the longliners argued, the Consent Decree nullified the prior process. Using the Endangered Species Act, the Turtle Island Restoration Network successfully reversed the outcome of the multi-party rulemaking before the fishery management council. Moreover, that is precisely what the ESA intends to do; to serve as last resort for desperate species. So, rejecting the procedural concerns of the longliners, the Ninth Circuit emphasized its preference for empowering the courts to allow parties to settle. Congress and the longliners, however, might view the facts differently, emphasizing the need for  the reasonable policy outcomes of rulemaking to be retained. Will we be reading another decision, a few years from now, about an appropriations provision that reverses Turtle Island, and that reinstates the 2009 Final Rule?

History could easily repeat itself -- or at least echo.

seaturtleinlonglineNOAA.jpg
Longline fishing for swordfish is called shallow-set fishing because the bait is set at depths of 30 to 90 meters.  Inevitably, the fishery will interact with sea turtles, and  entangle them in the fishing nets and gear. Closing turtle-rich waters to American fishermen, however, is a poor solution, because other nations continue longline operations without the use of turtle-friendly gear. With an eye towards international advocacy of best fishing practices, NOAA worked with fishermen, gear specialists and academic partners to develop new longline fishing practices. In 2004, to reduce incidental take of sea turtles, new regulations for the longline shallow-set fishery mandated the use of large circle hooks, the use of mackerel-type bait, a limit of 2120 shallow-sets per year, annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and 100% observer coverage on every swordfish-vessel fishing. Those rules were amended in 2009 by removing the set limit and increasing the allowable loggerhead interaction hard cap from 17 to 46. On March 14, 2012, the 9th circuit upheld a U.S. District Court order  and Consent Decree vacating that 2009 rule. (Photo from NOAA, caption info from Ninth Circuit's Turtle Island opinion.)

____

Keith W. Rizzardi, a Florida lawyer, teaches at St. Thomas University in Miami Gardens, practices law at Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, and tracks the Endangered Species Act on twitter @ESAlawyer.

House Oversight Hearings: merely theater, or a preview of Endangered Species Act reform?

03/08/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Yesterday, a House Natural Resources Subcommittee held an oversight hearing on the 2013 budgets proposed by the National Oceanic & Atmospheric Agency and U.S. Fish & Wildlife Service. Understandably, some members of Congress were unhappy with requests for an increase in funding compared to prior years. “After examining these budgets, it is clear that none of them reflect the reality of our current economic situation… they are frankly not serious documents,” said Subcommittee Chairman John Fleming (R-LA). But the hearing turned upon the Endangered Species Act, and Natural Resources Chairman Doc Hastings’ (R-WA) voiced frustration with increased spending on ESA implementation and litigation:

“As our nation faces a $15.5 trillion debt that grows by over $4 billion every day, the two agencies appearing today are responsible for managing national fish and wildlife and marine resources and are requesting a combined total of over $200 million more than together they received last year -- including for more Endangered Species Act (ESA) listings and regulations. Regrettably, the sizable portion of these agencies’ budgets that already goes to managing endangered species programs focuses less on prioritizing and recovering species than on paying costly attorneys’ fees, avoiding and defending procedural lawsuits, meeting court deadlines, and responding to court orders stemming from the agencies’ own poorly drafted rules and regulations.”

In truth, ESA related spending is a tiny fraction of the federal budget; less than 2 percent of all federal funds are spent on conservation. As U.S. Fish & Wildlife Service Director Dan Ashe explained in his written comments: “The budget includes $179.7 million to administer the Endangered Species Act, an increase of $3.7 million when compared with the 2012 enacted level. This includes a $1.5 million increase for renewable energy consultation, $1.0 million for science for pesticide consultation, and $400,000 for cooperative recovery of endangered species on wildlife refuges and in surrounding ecosystems.” (The written comments offered by NOAA Administrator Jane Lubchenko contain no mention of the ESA. Instead, NOAA’s request focused on the need for satellite services to support weather, climate and coastal science.)

Given their power over the federal purse, the Congressional members' concerns with $197 million are justified, but the suggestion that the agencies are the problem is unfair. The agencies are simply doing what the law (and courts) require them to do. The Endangered Species Act sets rigid deadlines for review of every petition to list a species. Eventually, if the petitions are not acted on, litigation follows. And upon review, the courts have no choice but to order the agencies to follow the law that Congress passed, and to order compliance with the deadlines in the ESA. For better and for worse, the recent settlements with WildEarth Guardians and the Center for Biological Diversity, and the accompanying costs, simply reflect the realities of the statutory scheme. (See FWS) And over time, the result of this proces (as a map cited by Rep. Hastings colorfully suggests) is an increase of listed species in each state.

MapListingHastings.jpg
Map from the House Natural Resources Committee webpage

Sooner or later, the Congressional frustration will lead to reform. The risk, however, is reform that goes too far... and that would truly be a waste. The Congressional findings that supported the Endangered Species Act in 1973 are just as valid today.  As Congress found and declared, four decades ago: "(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U.S.C. §1531(a). Given these findings, the ESA was intended "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. §1531(b).  But the worthy ambition to save, protect and recover species creates substantive and procedural problems, too.

In substance, the policy choices in the ESA create what the Congressional Research Service calls conflicting values. In other words, the ESA forces humans to forego their ambitions and desires to benefit other species. While it may be easy for a crusading urban environmentalist to demand a sacrifice, the pain is felt more acutely by the rural farmer whose access to water is denied. So one of the fundamental problems with the Endangered Species Act, one that arises again and again, is a fundamental disagreement over whether, and to what extent, humans should sacrifice to protect other species. Ted Williams of Audubon Magazine passionately believes that all species have inherent value deserving of protection; but other humans disagree, including the Pacific Legal Foundation.  To reconcile the conflicting values, and especially the tension between preservation and property rights, ESA reform must include -- gasp! -- compromise. We humans may have "dominion" over the Earth, but the governance of a ruler cannot and should not be a path to self-destruction. Humans must serve as stewards of our planet. See, e,g. Mere Environmentalism.

The process created by the ESA to achieve that stewardship is also burdensome, and like humanity, imperfect. Listing determinations, critical habitat designations, consultations, permits, litigation, attorney's fees, enforcement and compliance: these activities demand substantial human and financial resources. And the burdens of providing these resources fall upon industries, landowners and taxpayers who are then motivated to oppose the ESA's goals. In fact, many actions by the environmentalists to obtain protections for an imperiled species simply trigger new outrage from other people who endure the additional burdens and who do not appreciate the value of the species (or maybe even its ecosystem). See, e.g. Klamath Bucket Brigade.  Furthermore, the lawsuits filed by environmental advocates fail to serve as a procedural tool for shaping values. While they might achieve the short term goal, the long-term conflict remains. The values conflict becomes even more entrenched.

Compounding the substantive and procedural difficulties of ESA implementation is the reality of uncertainty. The ESA's reliance upon the ambiguous "best scientific and commercial data available" concept is intentional, but such flexibility comes at a price. Every decision can be second-guessed. To manage biological diversity IS to manage uncertainty. There is no single right answer; indeed, the ESA itself refers to the agency's most significant management document as a "biological opinion." For our interactive and human-dominated planet, there is no absolute biological answer.  In a radically changing world of climate change and exotic species invasions, not every species can be saved. Death and extinction is the only certainty, and the Sixth Wave is underway. As these inevitable changes have their effects, more and more species will need to be listed for protection, and the ESA conflicts will grow with impossible intensity. In that not-so-distant future, reform of the ESA seems a far better outcome than repeal.

Previously, ESAblawg suggested a three part plan for ESA reform. First, Congress could create a process that enables the U.S. Fish & Wildlife Service, and NOAA Fisheries, to set the order of species priorities, based on Congressionally established criteria, rather than litigating every listing petition that is filed by a concerned group. See ESA blawg, discussing "bulk petitions.". Second, Congress could reform the citizen suit provisions of the ESA, along with perverse attorney's fee-shifting provisions that create incentives to sue the government. See ESA blawg (discussing fees litigation) and ESA blawg (discussing settlement disincentives). Third, if Congress is going to allow species to go extinct, it could be more honest about that choice, streamline the process, and again, specify criteria. Delisting decisions would then allow the agencies to divert their limited funds from one hopeless species to another species that might survive.  See ESA blawg (discussing triage).

Sadly, empowering the government to make the terrible decision to allow a species to go extinct creates equally intolerable risks. Any attempt at ESA reform must include some mechanism allowing for checks and balances upon abuses of executive power. That point was demonstrated by Ms. Julie MacDonald, a former Department of Interior senior official during the Bush administration who abused her authority and pressured scientists to change their opinions to conform with her politically-preferred outcomes. See ESA blawg on "the Big Mac attack." As the Department of Interior's own Inspector General concluded, the federal official charged with supervising ESA implementation had violated her basic obligations of public service. See, Report of Investigation, Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (posted by the Center for Biological Diversity here)

The internet contains many proposals to reform the Endangered Species Act. Many proposals are, as expected, from the affected interest groups: the National Endangered Species Act Reform Coalition (NESARC); the American Enterprise Institute; land and livestock producers. On the other hand, even the U.S. Fish & Wildlife Service has its own webpage dedicated to "improving ESA implementation". Nevertheless, Congressional reform of the ESA is already underway, using an incremental approach. The Natural Resources Defense Council Switchboard blog has worried about legislative maneuvers to evade ESA application to salmon, otters and more, and Congress has used budget riders to delist the wolf in some states. See ESA blawg.

Ultimately, the recent Congressional hearing might produce nothing but noisy political theater, but it also has the potential to generate large scale reform. For the moment, the environmental advocacy groups appear to be adhering to the status quo.  But five years ago, when Congress last considered ESA reform, one citizen wrote a letter to the High Country News with a prognostication: "I believe that blind opposition to any reasonable reform of the Endangered Species Act is eventually going to lead to unreasonable reform."  Sad, and probably true.

Endangered Species Act tweetings: shooting owls, rhinos, and mountain lions

03/07/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Top policy stories: The White House, grappling with ESA realities, announced a new focus on economics and Barred Owl control as part of the Northern Spotted Owl management efforts. http://bit.ly/wBTN4W  The process could invite litigation but gain judicial deference. http://bit.ly/y7S4RI And the other big regulatory initiative, the Administration’s proposed significant portion of the range policy, continues to face its critics. http://huff.to/whJfR0 But implementation of controversial rules may be just the beginning of ESA reform. The Natural Resources Defense Council http://bit.ly/Av5i1H and others http://bit.ly/A3rLRz are increasingly concerned about Congressional actions affecting one species at a time, or one location at a time. And calls for wholesale Endangered Species Act reform continue, too, with a NJ editorial http://bit.ly/A7lTct Beef USA http://bit.ly/ziDLlv and the House Natural Resources Committee chiming in. http://bit.ly/z5b3UR All the controversy proved too much for a senior Idaho official who resigned, tired of fights among friends http://bit.ly/A8l45u as state authorized hunts killed 318 wolves http://bit.ly/zM3VYY Is Sen. Jackson's legacy in sheparding the ESA through Congress being undone? http://bit.ly/yJqYqZ

rhino_horn_usfws.JPG

ABCs (amusing, bizarre & criminal):Trafficking in rhino horns (photo above by USFWS from WildlifeExtra.com) earns jail time, reports the Sac Bee http://bit.ly/yn0e9W A California official who shot a mountain lion is sued for ethics violations http://bit.ly/yEqtCL Shell Oil takes the offensive and sues the environmentalists first http://nyti.ms/wnuRZe  Beware the snake killing fungus http://bit.ly/wcAVP9 Unable to get permits, zoos giving up on keeping polar bears http://bit.ly/zQDYKE1

Miscellaneous: The media does a poor job of covering science, says Joshua Gilder in U.S. News. http://bit.ly/wjJRVs ... So maybe all of this is wrong? Bay Delta Conservation Plan negotiations continue http://bit.ly/yWarr9  N.D.Cal. litigation underway over ESA & pesticides http://bit.ly/yDlAJk Farmers try to get megasuit dismissed http://bit.ly/xzKkNY But North Dakota sent EPA its own plans for pesticides http://bit.ly/wKp6aJ Mosaic Fertilizer in Fla. seeks amended Incidental Take Permit, covering scrub jay & indigo snake impact for 41 years. http://1.usa.gov/yqBKFv Hawaiians wary of NOAA re: turtles? http://bit.ly/xBR5BL Pebble Mine in rural Alaska could conflict with protection of valued fishery & sockeye lake, reports AP. http://bit.ly/zqVvBm FWS Federal Register announcements include taxonomic revision for the willowy monardella http://1.usa.gov/zdpaiO critical habitat for Riverside Fairy Shrimp http://1.usa.gov/yOlbPj 18 species enhancement permits http://1.usa.gov/wiICeN more comment on Dunes Sagebrush Lizard http://1.usa.gov/wXLZZ7 and listing decisions for Spikedace, Loach Minnow http://1.usa.gov/AzPtwD freshwater mussels http://bit.ly/yBmxFv and Oregon spotted frog http://bit.ly/wlRjxT

 The content above comes from @ESAlawyer on Twitter.



New approach to Northern Spotted Owl critical habitat designations invites litigation risk, but may also gain judicial deference

02/28/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Earlier today, President Obama issued a new memorandum entitled: Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens.  The document sets forth the public process and criteria to be used in revising the designated critical habitat for the threatened owl species. See also, Department of Interior announcement.

As the memorandum admits, the administration is being responsive to the litigation realities of the Endangered Species Act.  While protection of the Northern Spotted Owl will remain an essential aspect of any future decision -- as it must -- the memorandum also acknowledges two other important policy considerations: (1) "pragmatism" (or, in other words, "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice") and also (2) "approaches that maximize net benefits."  This policy approach seems fully consistent with the Endangered Species Act. After all, in the arena of critical habitat designations, the ESA explicitly allows for economic considerations. "The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat..." 16 U.S.C. 1533(b).  Nevertheless, the federal official who decides to consider economic impacts, to respect flexibility, or to achieve net benefits will face an adversarial process where courts remain empowered to reverse those decisions.

Indeed, the memorandum practically invites those legal challenges. For example, it suggests that the benefits of excluding private and State lands may be greater than the benefits of including those areas in critical habitat. While this approach could quickly eliminate much of the opposition to critical habitat designations, preservation minded environmental advocates would surely disagree with a wholesale exclusion of private lands. Other preservationists will disagree with the memorandum's embrace of active management and logging as a path to ecosystem diversity and forest resilience. And animal rights advocates will cringe at the notion of experimental removal of barred owls, using "both lethal and non-lethal" means, in an effort to reduce the inter-species competition. See U.S. Fish & Wildlife Service Fact Sheet.  Anyone doubting the inevitability of future litigation should read today's headline from Science Insider: "U.S. Proposes to Save Spotted Owl With Chainsaws and Shotguns."

Still, the proposal offers new thinking, and may yield substantial benefits. If nothing else, the final rule will be well-vetted by a public process, and the reasoning behind the ultimate decisions reached by the U.S. Fish & Wildlife Service will be fully transparent.  As a result, the judge (or judges) who review the future legal challenges may be more likely to give deference to the agency.  For an agency besieged by litigation anyway, a new approach is warranted. And, in the end, the final rule might even benefit the Northern Spotted Owl, too.

NSOfromFWS.jpg

As explained by Smithsonian Magazine, "an epic battle between environmentalists and loggers left much of the spotted owl's habitat protected. Now the celebrity species faces a new threat — a tougher owl." Image of Northern Spotted Owl, above, from Wikipedia.  Image of barred owl, below, from Wikipedia

BarredOwl_Strix_varia.jpg

___

Keith W. Rizzardi, teaches administrative law at St. Thomas University, serves as Special Counsel to Jones Foster Johnston & Stubbs, P.A., and "tweets" about the Endangered Species Act @ESAlawyer.

Reorganize NOAA, but not everything else?

02/21/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

The Obama Administration continues to explore the potential for moving the National Oceanic and Atmospheric Administration (NOAA) into the U.S. Department of the Interior. (n1) But real reorganization of our national environmental governance structure necessitates a consolidated U.S. Department of the Environment.

The President's merger proposal has its limitations. Preserving NOAA's scientific integrity and budgetary adequacy remain prominent concerns, (n2) and due to the looming opposition of Federal employee unions, and a partisan Congress, the proposal faces rough political waters. (n3) But it gets us thinking, too. Stepping back from the immediacy of the who-gets-and-who-loses math of Washington politics, an alternative perspective can be discovered.

In truth, the proposal is not ambitious enough. President Obama -- and everyone else -- wants a federal government that can better compete in the 21st century economy. (n4) Efficiency matters. So why just reorganize NOAA? A meaningful reorganization of environmental governance would not limit itself to only the two agencies implementing the Endangered Species Act.

Instead, we should consider creating a U.S. Department of the Environment. Stop splitting environmental and natural resources responsibilities all over the federal government, and start lumping them together. Begin by restructuring the Department of the Interior, and add the Environmental Protection Agency (EPA). OK, toss in NOAA. Boot the Army Corps out of wetlands regulation. Cut the Forest Service and Natural Resources Conservation Service from the Department of Agriculture. Transform the Department of Energy and the Tennessee Valley Authority. With all these entities consolidated, interagency conflicts would reduce. Eliminating expensive leadership and Senior Executive Service positions could achieve additional savings. Regional and field offices from multiple agencies could merge, saving on rent and facilities expenses.

 
Environmental advocates fear the potential short-term adverse effects of reorganizing, yet refusing to do so might be worse. NOAA (and other agencies) are already going through the early pains of adapting to a shrinking budget. Agencies are carefully thinking about their "core missions" and setting strategic priorities. As a result, some programs will be downsized or defunded. Regional offices will close. Staff will shrink. (n5) Moreover, if our nation plans to tackle its budgetary crisis, then the pain will soon get worse. In other words, the current path leads to death by a thousand cuts.

In contrast, a thoughtful reorganization of our environmental agencies could result in well-defined subsidiary organizations of greater stature, better equipped to deal with overlapping issues on an ecosystem scale. The Cabinet Secretary who presided over the new Department of Environment would command great respect from Congress, industry and stakeholders. From a raw politics perspective, the effort might also eliminate two common political targets, the Department of Energy and EPA, which would become parts of a greater whole. Our national environmental programs and functions could be rearranged along meaningful lines; just imagine: the National Lands Service, the National Oceans Service and the National Weather and Climate Service; the National Science Service, the National Environmental Regulatory Service, and the National Environmental Enforcement Service. Maybe even an Office of Environmental Partnerships, too.

Sadly, in the current political climate, this kind of rewriting of the American bureaucratic org-chart to consolidate environmental entities probably cannot happen. The status quo is powerful. (n6) Yet this is not a novel idea. In 2009, the U.S. Government Accountability Office evaluated the potential to move the U.S. Forest Service into the Department of the Interior. (n7) Countless intellectuals have envisioned alternative ways to organize or streamline our government. (n8) And there are international models for consolidation, too. (n9)

But in the United States, our Department of the Interior has accurately called itself the Department of Everything Else. (n10) A debate over adding NOAA to "everything else" involves incremental change, at best; creating a new era of environmental governance for the next century requires much bigger thinking. 


Maybe one day our nation will give sustainable environmental management and protection the comprehensive approach that it deserves.

Keith W. Rizzardi is a law professor at St. Thomas University, Chair of the Marine Fisheries Advisory Committee, and Special Counsel to Jones Foster Johnston & Stubbs, P.A.
Follow his "Keithinking" about the Endangered Species Act @ESAlawyer

___
NOTES:
(1) Government Executive.
(2) ESA blawg, but see also, National Marine Sanctuary Foundation and Natural Resources Defense Council.  
(3) Washington Post, and Red Lodge.
(4) The Hill
(5) Compare proposals: NOAA 2013 Budget Statement and EPA budget cuts; AP wire story says GOP wants deeper cuts.
(6) See Washington Post.
(7) See, Observations on a Possible Move of the Forest Service into the Department of the Interior GAO-09-223 (Feb 24, 2009)
(8) See, e.g. Congressional Research Service(discussing historic efforts); Charles Woods (reorganizing the Federal Government for WWII); Creating a Government That Works Better & Costs Less; the US Ocean Commission and the Pew Oceans Commission (advocating an Oceans entity) and Chris Joyner (rethinking international environmental organizations).
(9) Compare Environment Canada (Air, Climate Change, Enforcement, Environmental Emergencies, Nature, Pollution and Waste, Science and Technology, Sustainable Development, Water, Weather and Meteorology) and Natural Resources Canada (Earth Science, Energy, Forests, Minerals, Metals).
(10) Department of Everything Else

Wolves, Altantic Sturgeon & more from @ESAlawyer (Jan-Feb 2012)

02/11/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Get your Endangered Species Act announcements sooner on Twitter @ ESAlawyer

COURT CASES & LAWYERLY LINKS

Maine: court says suit re: salmon take continues vs. dam operators bit.ly/yfUPsm

DDC court rejects special National Fire Plan Sec. 7 consultation regulations: no proof of need, current process works bit.ly/wWGZi2

Scholars: Craig, disaster, ecosystem resilience & inadequate remedy 2011 BYU L.Rev 1863; Lloyd, Citizen Suits & Defense ST038 ALI-ABA 627

2012 WL 278712: LandWatch, NPC in Ore sues FWS for approving Eugene to Veneta water supply pipeline; harm to listed plants, butterflies

ALJ says Farmton Local Plan, Volusia County, improves black bear protection consistent with law, prevents listing. 2012 WL 256233 (Fla.DOAH)

Earthjustice sues NMFS over approval of Navy sonar training in Pacific waters. b.globe.com/zb8Ppv

New lawsuit sprouting on loss of marbled murrelet habitat due to Oregon old growth logging bit.ly/zl9y3s

Court ok w/Alaskan fishing limits for Stellers sea lion bit.ly/xVtDJK PacNW chinook salmon limits coming soon bit.ly/wf9UG3

Recovery: Can ESA Go Beyond Mere Salvage? 42 Envtl. L. Rep. News & Analysis 10017; Salmon: Dam Preservation Under the ESA, 41 Envtl. L. 1363

FISH & WILDLIFE SERVICE

FWS: SuppDraft EIS for Tehachapi Upland MultiSpecies HCP 1.usa.gov/zZ4f9c The plan for condors at Tejon Ranch, CA 1.usa.gov/wdo5cB

FWS may list San Bernardino flying squirrel b/c feral cats & climate change (lost conifer & black-oak forest habitat) 1.usa.gov/zffnSS

FWS: Polar bear interim rule reissued, NEPA ongoing. No ESA take violation if complying with CITES & MMPA. 1.usa.gov/ApSydq

FWS says listing Hawaiian 'i'iwi may be warranted due to habitat loss, nonnative animals, avian disease, climate change 1.usa.gov/yaGAH9

NOAA FISHERIES/ NMFS

More Atlantic sturgeon: NOAA says Gulf of Maine DPS threatened, New York Bight & Chesapeake Bay DPSs endangered 1.usa.gov/zf9P0N

NOAA says habitat, dams, dredging, H2o quality endanger Carolina, So. Atlantic distinct population segments of sturgeon 1.usa.gov/wJFEqB

NMFS: 5-yr sei whale review underway. 1.usa.gov/xOTMr9 Consultation on incidental take for geophys survey, too. 1.usa.gov/x5k4Jo

NOAA revises leatherback sea turtle critical habitat in Pacific. 41914 sq.mi, 262 ft deep. Focus on jellyfish prey. 1.usa.gov/AqSdHW

MUSINGS & NEWS

On animal cruelty: new egg farming n.pr/xrYjtT leg hold trapping bit.ly/zH8M2W movie molds wolf image bit.ly/y7lkBQ

Choice of safety or species? Cal. Dept. Fish & Game sues U.S. Army Corps over post-Katrina tree ban on levees bit.ly/zSKqkn

Why the ESA? So we protect wildlife & learn stuff like this: fluid dynamics of shark skin denticles add thrust. bit.ly/xdNzJc

Big thought: will we find new life forms in subglacial lakes not touched in 25 million years? bit.ly/wiwq1S

Listing Mazama pocket gopher may affect urban density in WA bit.ly/wf6Hh1 Mixed review of prairie dog management bit.ly/x0mXhx

Cape Hatteras ORV rule protects seabirds bit.ly/wTGEOU La. state law limits enforcing shrimp net turtle device bit.ly/zs6D0C

FEMA wildfire clean up still protecting Houston toad bit.ly/x2oWH2 Listed CA frogs vs trout stocking for anglers bit.ly/zf46Ns

6500 acres, 100 Miss. gopher frogs, 1 crusading landowner. NoLa & AP: bit.ly/we1zVS & bit.ly/w4AFeK & bit.ly/zyVtXY

ESA in Delaware: UDel plant database (lotsa rare flora) bit.ly/zN1L7H & endangered listing for Atlantic sturgeon bit.ly/wUBi30

ESA in Okla: leaders fear impact on energy industry & say voluntary efforts should avoid listing Lesser Prairie Chicken bit.ly/A3kJ9B

Need an American Red Cross for wildlife: Mil-Wis Journal on whooping cranes & threat of TX drought on recovery effort. bit.ly/wDqpqT

Can't win in Canada: ESA requires best available info, but scientist says dorsal fin satellite tags may harm orcas. bit.ly/yWgcjD

Another ESA conflict: trail closures upset dog-owning AZ hikers; land managers say dogs scare listed bighorn sheep mydesert.co/wUJ9xS

Sierra Sun summary on grizzly bear litigation bit.ly/zCTHpA Seattle Times on leatherback critical habitat bit.ly/ycja18

POLITICS

Santorum says ESA prevents timber harvest huff.to/ykLUnP and climate change a hoax bit.ly/zEhUQX

House Nat.Res. proposes oil drilling in 3% ANWR. bit.ly/xZaoD1 Polar bear debate coming. huff.to/A8vygd & dfnd.us/xABgOg

Markey (D-Mass) dislikes significant portion of range policy, says too high a threshold for endangered species. wapo.st/wPbbwm

Revealing op-ed on lobbying to ignore science. bit.ly/Aohe4w U.S. Senator says ESA reform not (yet?) in works. bit.ly/wjwa6x

WOLVES

Chicago Op-Ed bit.ly/xAMLWF

Wisc. Op-Ed bit.ly/yHBXy2

MN rancher opinion: hunt flawed bit.ly/xxwUxj

Wolf: NM suit to stop hunt bit.ly/whAkZ5

WY wants to start hunt n.pr/wBQWNu

Mich says delist=victory bit.ly/zb0LYG


Merger of fisheries agency into Interior Department is no joke

01/22/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

The National Marine Fisheries Service (NMFS) manages and regulates the nation’s fisheries. International trade in fisheries contributes $70 billion annually to our nation's economy, so NMFS, in conjunction with other agencies, plays an important role in ensuring sustainability of our oceans. As President Obama lightheartedly explained in the 2011 State of the Union: "The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked."

It was more than just a laugh line. One year later, in January 2012, the President announced his plan to consolidate government and to merge NMFS (pronounced “Nymphs”) into the Department of Interior. See The Hill. But as President Truman once said, "the only thing new in the world is the history you don't know." So consider the history: in 1966, the Marine Resources and Engineering Development Act launched a new national program in marine science and ocean exploration. Related proposals to create a Department of Natural Resources failed, so the National Oceanic and Atmospheric Administration (NOAA) was eventually created within the Department of Commerce. NMFS, an entity within NOAA, also merged portions of the Department of Interior's Bureau of Sport Fisheries and Wildlife with the Department of Commerce's Environmental Science Services Administration. In other words, the recent merger proposal is a back to the future moment in federal natural resource management.

The proposal reveals a tension between efficiency and effectiveness. Efficiency concerns favor a merger of Interior and NMFS. Expensive leadership positions could be reduced, less interagency coordination will be needed, and some duplication of functions could be eliminated. Over time, a Department of Natural Resources might even become reality. One department could manage and regulate all our nation’s resources, from sea to shining sea, on subjects ranging from ocean energy to mountaintop mining.  Effectiveness, however, suggests that thoughtful caution is warranted, for three reasons.

First, the effort to reduce duplication could lead to a loss of niche expertise. Huge differences exist between managing mountains, forests, deserts, prairies, wetlands, estuaries, coral reefs and the oceans. Moreover, the White House is actively implementing the National Ocean Policy, seeking to transform our thinking about ocean management. These activities all require specialized expertise. And while the divide of expertise between Interior and NMFS can be frustrating, it also makes a degree of sense. Even in elementary earth science thinking, concepts divide between land, sea or air. If the Department of the Interior serves the land, then why merge NOAA into Interior? Why not a separate Department of Oceans and Atmosphere?

Next, the realities of regulatory independence must be acknowledged. No longer an independent agency within the Department of Commerce, a reorganized NMFS would share walls with governmental entities responsible for dams, mining, grazing and ocean energy. In other words, when NMFS exercises its regulatory authority, for example, by implementing the Endangered Species Act and saying “no” to an industry activity supported by another entity within the Department of Interior (think oceanic oil exploration), NMFS will confront the same difficult interdepartmental politics that already affect the Fish & Wildlife Service regulators. (This is a major concern to the Natural Resources Defense Council.) However, it is also true that regardless of who resolves those inter-agency tensions -- the Secretary of Interior, or the Council on Environmental Quality -- all of them serve the President and his policies.

Finally, and perhaps most significantly, budgetary politics must be considered. As an entity within the Department of Commerce, focused on a job-producing industry, NMFS maintains respectable funding, and high scientific standards, with a budget of roughly $1 billion in 2010. By comparison, even though Americans love our National Parks and endangered species, the National Park System and the Fish & Wildlife Service struggled to meet their mandates with annual budgets in 2010 of $2.7 billion and $1.6 billion, respectively. Would NMFS, when it appears before a whole new group of Congressional committees, as part of a $12 billion Department of Interior, still be able to compete with these other needs and priorities for its slice of the federal funding pie chart?

Perhaps all these concerns can be overcome, and the realities of our federal budget necessitate the merger of NMFS into the Department of Interior. But this dialogue over the structure of government will have lasting impact on our oceans, our fisheries, and our endangered and threatened aquatic species.

oliveridley_beach_noaa.jpg
Photo of threatened olive ridley sea turtles from the State of Alaska Department of Fish & Game. While the President told his 2011 State of the Union joke about the management of endangered salmon, it becomes more accurate if told about sea turtles: "FWS manages turtles on land. NMFS manages them at sea. Imagine how hard it is to make soup?"
___

Keith W. Rizzardi chairs the Marine Fisheries Advisory Committee, teaches environmental law at St. Thomas University School of Law in Miami Gardens, and writes about the Endangered Species Act on Twitter @ESAlawyer

January's #ESAlawyer content re: Endangered Species Act

01/21/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

TWEETS FROM #ESAlawyer (Jan. 2012)

Case law:

20 Jan. Complex Casitas case involves ESA, public trust & Cal. H2o law. bit.ly/wZ32i9 Fish don't really need water, do they?

U.S. Fish & Wildlife Service

21 Jan. FWS lists 3 pythons, 1 anaconda as invasive species. http://1.usa.gov/xURGdK Maybe they'll stop eating the endangered Key Largo woodrats now?

21 Jan. "Endangered everything" not an option, so FWS offers National Fish, Wildlife, and Plants Climate Adaptation Strategy 1.usa.gov/zZXsVB

20 Jan. FWS reopens comment on 1.9 acres of critical habitat for endangered Chupadera Springsnail in Socorro County, New Mexico 1.usa.gov/zimkOI

19 Jan. it's official! FWS announces establishment of Everglades Headwaters National Wildlife Refuge and Conservation Area. 1.usa.gov/y2jhty

19 Jan. FWS: Recovery Plan for Hawaiian Waterbirds 1.usa.gov/wv1xr9

17 Jan. Lesson in predation: exotic pythons eat endangered wood rats. Will new "injurious species" announcement help? bit.ly/yi7kpO

17 Jan. Citing peer review opinion divide, FWS seeks comment re: proposed Mississippi gopher frog critical habitat 77 FR 2254 1.usa.gov/w7QhuY

15 Jan. Due to taxonomy changes, FWS seeks comment re: Pac.Coast population of western snowy plover crit.habitat 77 FR 2243 1.usa.gov/wsCTGV

13 Jan. Shiloh IV Wind Project proposes Habitat Conservation Plan for Cal. tiger salamander: 77 FR 1498 1.usa.gov/AtyERv & 1.usa.gov/wh0JwB

13 Jan. FWS may list humbolt marten (a West coast weasel) due to timber&fire, disease, habitat mngt & at-risk small populations 1.usa.gov/wCYR77

12 Jan. San Diego County Water Authority signs multiple species conservation plan to ease ESA permitting for 63 covered species bit.ly/xbi5LS

NOAA Fisheries

13 Jan. Species vs. National Security: NOAA on taking marine mammals incidental to U.S. Navy sonar operations 77 FR 842 see
1.usa.gov/wORyVO

12 Jan. NOAA: are beluga whale populations crashing? bit.ly/yE2wMl Is Right Whale Ship Strike Reduction Rule working? 1.usa.gov/AyucPF

12 Jan. NOAA announces recovery plan for Cal. Steelhead DPS 1.usa.gov/wLa8Qh Final plan online soon, draft plan at 1.usa.gov/ywtUAu

11 Jan. NOAA says no to delisting So.Ore./No.Cal. Evolutionarily Signif. Unit of coho salmon b/s insufficiently specific data 1.usa.gov/xoBeBP

Musings & More

19 Jan. Extirpation, maybe even mass extinction; fungus killed up to 6.7M bats, reports USA Today usat.ly/xQXO54

15 Jan. Not just a joke: Will NOAA join FWS? bit.ly/AoLVtz Capitol hill unsure. bit.ly/wrdfBZ NRDC opposed. bit.ly/A9ucpi

14 Jan. Relentlessly unsatisfied critics give Obama C- on animal welfare. huff.to/y16df7 Maybe they'd prefer Ron Paul? bit.ly/wmoJ0R

14 Jan. Western states petition for ESA reform bit.ly/xneo8a could succeed with this House of Representatives bit.ly/ABu5Bv

14 Jan. International aspects of ESA: monkey meat nyti.ms/wGbYft and elephant ivory bit.ly/AfWFkY

14 Jan. Hi readers. My career & ESAblawg.com remain in transition. Tweet renamed: @ESAlawyer Visit Earthblawg.com at St.Thomas Univ.



Republican Presidential Candidates on species conservation and the Endangered Species Act...

01/21/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Recent tweets from #ESAlawyer:

Gingrich: Environmental stewardship is everyone’s responsibility... Despite flaws...ESA is essential conservation tool bit.ly/yLAdSY

Huntsman: Conservation is conservative. I am not ashamed to be a conservationist. bit.ly/Avxl0c

Paul: I can't find endangered species written in the Constitution and I don't think that's a federal function. bit.ly/wmoJ0R

Perry: need federal-state partnership with landowners & more bit.ly/wIgLxj don't prioritize birds over people bit.ly/w4nDEt

Romney: Cost benefit analysis, lead time for corporate compliance, marketplace orientation mi.tt/yFnCTu

Santorum: ESA is poorly crafted legislation. http://bit.ly/xNYK37


ESA blawg is back... and then some.

01/21/2012

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Hi everyone, ESAblawg.com is back.

2011 was challenging; an abundance of Endangered Species Act announcements and litigation, plus my own professional chaos, led to a hiatus.  But 2012 comes with a new professional path, and a new plan for ESA blawg. First, my path: I'm now a law professor and Assistant Director of the LLM Program in Environmental Sustainability at St. Thomas University School of Law, in Miami Gardens, FL.  In addition, I was recently elected Chair of the Marine Fisheries Advisory Committee, and I am serving as a consultant on administrative and environmental law issues to Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, FL.  Given these many hats, I needed to make ESAblawg a bit more contained.  So I've got a three part plan.  

1. Microblogging.  "Routine" items related to the Endangered Species Act, such as Federal Register announcements and many U.S. District Court case references, will be published on Twitter at #ESAlawyer  

2.  Delegating.  Law students at St. Thomas University are now working on Earthblawg.com, which will become a useful resource, not just on the ESA, but on other wildlife laws too.

3.  Focusing.  On ESAblawg.com, I intend to publish more in-depth material and monthly musings on the pro's, con's and realities of the Endangered Species Act.

And now, back to work...

Thanks for reading, still.

Keith

9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity

07/31/2011

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. §228.4(a) (2004).  

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.

KlamathRiverSuctionDredge.jpg

SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes...  The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.

Federal Judge in D.C. defers to FWS 4(d) rule on threatened status of the polar bear

07/30/2011

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

In re: Polar Bear Endangered Species Act Listing and §4(d) Rule Litig., Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C., June 30, 2011).

BACKGROUND: Several lawsuits challenging the Fish and Wildlife Service's (the Service) 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA), and to issue a rule under Section 4(d), were consolidated into multi-district litigation in the D.D.C.  On June 30, the court granted summary judgment to the Service and upheld the listing against all challenges.  Plaintiff Center for Biological Diversity's (CBD) claims against the 4(d) rule are still pending.  The focus of the litigation was mainly on the distinction between the listing categories "threatened" and "endangered" and also on reliability of the state of climate change science when predicting the impacts of climate change on ice habitat of the polar bear.  Following are the court's holdings and analysis.

RULING: The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing.  Center for Biological Diversity (CBD), Natural Resources Defense Council, and Greenpeace (collectively, CBD) claimed that the Service wrongfully concluded that the polar bear did not qualify for endangered status as of 2008.  The Service had maintained that a species must be at "imminent risk" of extinction to qualify for endangered status, which it had not articulated in the 2008 listing rule, but had stated in a "Supplemental Explanation" required from previous remand.  The Service's view was that a species be "currently on the brink of extinction in the wild" and that this understanding was not intended to be narrow or inflexible, as the ultimate determination would depend "on the life history and ecology of the species, the nature of the threats, and the species' response to those threats."  The Supplemental Explanation also described four categories of situations that had been found to satisfy that test in the past and applied each concept to the facts in the polar bear record.  The court applied Chevron deference to the Supplemental Explanation and held that, as applied to the polar bear, the Service's definition of an endangered species represented a permissible construction of the ESA since "Congress did not seek to make any factor controlling when drawing the distinction [between threatened and endangered]" and that there is a "temporal element to the distinction between the categories."

Joint plaintiffs claimed that the polar bear should not have been considered threatened at the time of listing because the Service failed to demonstrate that the polar bear is sufficiently "likely" to become endangered, and the Service arbitrarily selected a 45-year time frame as the "foreseeable future" for the polar bear when a shorter time period would have been more appropriate.  Plaintiffs had argued that a demonstration of 67-90% likelihood was required to establish whether the polar bear would become an endangered species in the foreseeable future, since a large part of the Service's record had relied on Intergovernmental Panel on Climate Change (IPCC) reports that had coincidentally established meanings for the terms "likely" and "very likely."  The court rejected plaintiffs' argument here and stated that neither Congress nor the Service had adopted an official interpretation of "likely," and the Service was not bound to IPCC definitions simply because it had relied on other scientific portions of the IPCC reports.  Plaintiffs had also argued that the Service should have been limited to a shorter time period than the selected 45-year time frame due to the inability to foresee what future regulatory mechanisms may be in place.  The Service had selected 45 years because it again relied on the IPCC report that predicted warming (regardless of choice of emissions scenario) before the point at which projections diverge significantly.  The court upheld the 45-year time frame and emphasized that the ESA's listing provisions require the Services only to consider existing regulatory mechanisms.  In addition, the court noted that Congress and the Services have not yet defined the term "foreseeable future," that a bright line rule was not appropriate, and that the definition should be flexible depending on species and best available science.

RULING: The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualified As a "Distinct Population Segment."   Plaintiffs Center for Biological Diversity (CBD), Safari Club International and Safari Club International Foundation (SCI), and Conservation Force et al. (CF) claimed that the service wrongfully concluded that no polar bear population or ecoregion is "discrete."  The court upheld the Services determination regarding distinct population segments (DPSs) (since it followed formal policy for designating a DPS that had been promulgated through notice-and-comment rulemaking and upheld by prior courts) and found that the Service "articulated a reasonable basis for its conclusion that no polar bear population or ecoregion is meaningfully 'discrete' for the purposes of DPS designation: even if there are behavioral differences among polar bear population segments, polar bears are universally similar in one crucial respect - namely, their dependence on sea ice habitat and negative response to the loss of habitat."

RULING: The Service Did Not Arbitrarily Fail to Consider Other Listing Factors.  Joint plaintiffs also argued that the listing rule should be overturned because of deficiencies in the Service's analysis of several of the listing factors the ESA requires an agency to consider:  1)  that the service failed to "take into account" foreign conservation efforts to protect the polar bear;
2)  that the service failed to rely on the "best available science"; 3) that the service failed to consider whether the threat of overutilization warranted listing the polar bear as "endangered"; and 4) that the service wrongly concluded that existing regulatory mechanisms will not protect polar bears despite anticipated habitat losses.  The court found that FWS did articulate a rational basis for each specific listing determination and the agency explained how the categories apply in the context of the polar bear and the state of its science.  Notably, the court found instances in the record where the Service did take foreign conservation efforts into account, but those efforts concentrate mostly on overharvest and disturbance and would not be sufficient to offset ice loss, which is the primary threat to the polar bear's survival.  In terms of "best available science," plaintiffs argued that climate change predictions were uncertain, pointed to weaknesses in models and claimed that the Service used a partial dataset for the Southern Beaufort Sea polar bear population.  The court found that best available science is to be relied upon even if it is uncertain or even inconclusive and this merely prohibits the Services from disregarding available scientific evidence that is better than the evidence it relied upon.  Plaintiffs did not challenge the Service's models as best available science, but appeared to take the position that the Service should have drawn different conclusion from those models.

RULING: The Service Followed Proper Rulemaking Procedures.  Plaintiff State of Alaska had claimed that FWS failed to satisfy its obligation under Section 4(i) of the ESA to provide a “written justification” explaining why it issued a final rule that conflicts with comments it received from the State.  FWS had sent a lengthy letter to the State of Alaska in  response to its comments, which satisfied 4(i), even if Alaska “may have preferred a different or more detailed explanation.”  The court concluded that 4(i) requires only that FWS provide a “written justification for failure to adopt regulations consistent with the agency’s comments or petition,” a response which is procedural only.

EXCERPT: "As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science."

Federal Judge in D.C. says ESA dispute over EPA's FIFRA registration of Rozol will proceed

07/30/2011

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Defenders of Wildlife v. Jackson, CV 09-1814, 2011 U.S. Dist. LEXIS 62461 (D.D.C., June 14, 2011).

BACKGROUND: The U.S. Environmental Protection Agency (EPA) registered Rozol under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) on May 13, 2009 and did not consult with FWS before approving its registration.  

ISSUE: Plaintiffs, Defenders of Wildlife (Defenders) and The Natural Resources Defense Council (NRDC), sought both declaratory and injunctive relief under the ESA and sought an order declaring that EPA’s FIFRA registration of Rozol was not in accordance with the ESA because the EPA had failed to consult with FWS.  More specifically, Defenders requested an order requiring EPA to engage in formal consultation prior to issuing the registration.  The NRDC requested an order requiring the EPA to engage in and complete formal consultation prior to registering Rozol.  The EPA had begun consultation with FWS on September 30, 2010 (a week after the suit was filed) and had argued that plaintiffs’ claims were therefore moot.  Plaintiffs had argued that EPA remains in violation of the ESA until it finishes consulting with FWS and the court could provide an effective remedy by vacating the registration and ordering the EPA not to register Rozol without completing consultation.  

RULING: The court found that Defender’s request was moot because EPA had already begun consulting.  NRDC’s request, however, was not moot because consultation had not yet been completed and therefore an effective remedy would be possible and appropriate: the cessation of the use of a deadly chemical that may jeopardize the continued survival of endangered species until the EPA complies with the mandates of the ESA.  

prairiedogrozoldeath.jpg
According to Audubon of Kansas, a participant in the litigation, Rozol is a Poison that Keeps on Killing.  "The most disturbing element of Rozol (chlorophacinone) use is its hazard of secondary poisoning for predators that eat the poisoned animals. Prairie dogs poisoned with Rozol die from internal bleeding. In one non-sanctioned poisoning in South Dakota investigators gathered several hundred of the animals that were continuing to die above ground for three weeks after application." Image available from Audubon of Kansas

Search

Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

TFBcertifiedLogoSmaller.gif

Disclaimer

The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

View Keith Rizzardi's profile on LinkedIn View my profile on Avvo

Twitterings

16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

TJ.jpg

"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

TRphoto.jpg

"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER