Copyleft

Creative Commons License
ESAblawg is an educational effort by Keith W. Rizzardi, board certified by The Florida Bar in State & Federal Government & Administrative Practice. Photos and links may be copyrighted; otherwise ESAblawg is published with a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

TFBcertificationLittle1.jpg View Keith Rizzardi's profile on LinkedIn

Subscribe!

 Full Posts  Comments

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

Founders

KEITH W. RIZZARDI (West Palm Beach, FL). Keith is a Board Certified Lawyer in State & Federal Government & Administrative Practice, and previously litigated Endangered Species Act cases in federal courts as a Trial Attorney for the U.S. Department of Justice, Environment and Natural Resources Division. Today, Keith serves the South Florida Water Management District as an administrative, environmental and Endangered Species Act lawyer, and his responsibilities include the Everglades restoration. He is a former Chair of The Florida Bar Government Lawyer Section.

KEVIN S. PETTITT (Washington, DC). Kevin is an IT consultant specializing in Lotus Notes & Domino, which powers ESABlawg.com as well as his own Lotus Guru blog. He has helped with all aspects of the technical design of this site. He is also a long-time student of environmental science, photography, and urban planning, and periodically comments on the content here.

Contributors

PETE DAVID (Albuquerque, NM). Pete is a Certified Wildlife Biologist with 25 years experience with land stewardship and natural resources programs. He previously worked with the South Florida Water Management District, Florida Department of Environmental Regulation, U.S. Department of Defense, U.S. Forest Service, and U.S. Fish and Wildlife Service (FWS). His project experience includes reintroducing the federally endangered red-cockaded woodpecker to South Florida, and the Middle Rio Grande Endangered Species Act Collaborative Program in New Mexico. Today, Pete continues to work on endangered species issues as a Senior Project Manager for SWCA Environmental Consultants in Albuquerque.

YELIZAVETA BATRES (West Palm Beach, FL). Liz is currently clerking at the Florida Fourth District Court of Appeal, after graduating from the University of Florida Levin College of Law, where she was a senior research editor of the Law Review. Liz also interned at the U.S. Department of Justice, Environment and Natural Resources Division.

florida gators... never threatened!

If you ain't a Gator, you will be, because gator blood looks like our pharmaceutical future. Click here to read the relevant ESA musing.gatorlogo2.gif

The law of unintended consequences: what the ESA needs, it takes, but what about other priorities?

11/16/2008

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


While an essential goal of the Endangered Species Act is to increase attention to the endangered and threatened species, compliance with the law also leads to unintended consequences.  The problem stems from a simple fact: increased ESA demands do not equate with increased government agency resources.  Three news stories this week highlighted the tensions between the ESA demands, and the other competing needs, priorities and duties of state agencies.  

With longfin smelt now protected in California, and new state incidental take regulations in place, Central Valley water management became even more difficult for the California Department of Water Resources.   "DWR estimates the emergency regulations have the potential to reduce state and federal water project deliveries up to 1.1 million acre feet, or an additional 17 percent in an average water year."  See also, San Diego Union-Tribune.  Meanwhile, in Wyoming, the state's four-man wolf management team is expected to be officially disbanded Monday, because the Wyoming Game and Fish Department is recommending to the Game and Fish Commission that it re-assign two of the department's remaining three wolf specialists.  Finally, in Western Colorado, the Colorado River Basin is the exclusive habitat for the endangered Colorado Squaw, Humpback Chub, Bony Tail Chub and the Razorback Sucker, four species preyed upon by non-native species like Cat Fish, Small Nosed Bass, and Northern Pike.  As a result, a Federal recovery program is using electric currents to eliminate the non-native species, but in the process, it also destroys the edible recreational fishery -- leaving anglers angry with the Colorado Division of Wildlife, and raising questions about the use of taxpayer dollars.

On any given day, perhaps even with any story about any one of the hundreds of listed species in the U.S., other state agencies would have similar stories to tell.  Because with each decision related to the listing, critical habitat, survival and recovery, or incidental take of any endangered or threatened species, state agencies must dedicate their limited staff time, effort and dollars to the species on the brink.  Meanwhile, other needs, and especially other species -- admittedly, species in less dire conditions -- receive less management attention.  It is the sad necessity of the ESA: endangered and threatened species usually come first (exceptions for national security aside.)  But one day, the ESA may be forced to admit a need to set priorities.  With number of ESA-listed species ever growing, and indeed, with global climate change threatening an explosion in threats to species, the absolute demands of the ESA could become increasingly difficult, or even impossible, to bear.  When that day comes (assuming it hasn't already), and in the absence of increased funding, a triage system becomes inevitable.  

humpbackchub.jpg
According to the U.S. Department of Interior, the number of adult humpback chub, Gila cypha, in Grand Canyon stabilized between 2001 and 2005, and perhaps even increased in 2006,  after years of decline.  Supporters of the ESA could point to the law, and its focus on the need for protection of the fish, as one of the reasons.  The unanswerable question, however, is what trade-offs were made to achieve that success?  See also, ESA blawg (July 16, 2008)(on research program for endangered black-footed ferrets).


U.S. Supreme Court supports Navy, reverses Nines, in appeal of preliminary injunction affecting sonar operations

11/12/2008

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


Winter v. NRDC, No. 07–1239 (S.Ct., November 12, 2008)

NavyOralArgs.jpg
Secretary of the Navy Winter, right, and Admiral Gary Roughead depart the Supreme Court of the United States after Oral Arguments on October 8, 2008. U.S. Navy photo by Mass Communication Specialist 2nd Class Kevin S. O'Brien

FACTUAL BACKGROUND: Plaintiffs contended that Mid-Frequency Active (MFA) sonar can cause serious injuries to marine mammals, including permanent hearing loss, decompression sickness, and major behavioral disruptions including mass strandings.  The Navy, however, adopted several mitigation procedures, including: lookouts, reporting detected marine mammals in the vicinity of the training exercises, and, upon detection of marine mammals, reduction or shut down of sonar.  The Navy completed an environmental assessment pursuant to the National Environmental Policy Act, but Plaintiffs sought a full Environmental Impact Statement, eventually leading the Navy to also obtain authority from the Council on Environmental Quality (CEQ) to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” See 40 CFR §1506.11.3.  

PROCEDURAL BACKGROUND: The District Court granted plaintiffs’ motion fora preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The District Court held that plaintiffs had “demonstrated a probability of success” on their claims.  The Ninth Circuit agreed with the District Court’s holding that the Navy’s EA—which resulted in a finding of no significant environmental impact—was “cursory, unsupported by cited evidence, or unconvincing.” The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court.

SCOTUS OPENING: (Opinion by Chief Justice Roberts): "The plaintiffs complained that the Navy’s sonar training pro-gram harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though that court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. 518 F. 3d 658, 696 (CA9 2008).  The Court of Appeals was wrong, and its decision is reversed."

SCOTUS CONCLUSION: "President Theodore Roosevelt explained that “the only way in which a navy can ever be made efficient is by prac-tice at sea, under all the conditions which would have to be met if war existed.” President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the impor-tance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy."

KEITHINKING: The environmentalists defeat was predictable.  See ESA blawg (Feb. 19, 2008)  The 9th Circuit and District Court simply overreached in granting a preliminary injunction against the use of Naval sonar for anti-submarine warfare training exercises, especially in this procedurally-driven NEPA case, where the White House had weighed in and granted special authority.  Judicial restraint by the Supreme Court was inevitable. See also ESA blawg)(discussing judicial restraint by the 9th Circuit and potential influence of the sonar case)
Read More

Louisiana black bear critical habitat rule proposed and comment period reopened

11/12/2008

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


73 Fed Reg. 66831 (Wednesday, November 12, 2008) / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / RIN 1018–AV52 WS–R4–ES–2008–0047 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Louisiana Black Bear; Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

LouisianaBlackBear.jpg
The Louisiana black bear is a habitat generalist and often overwinters in hollow cypress trees either in or along sloughs, lakes or riverbanks in bottomland hardwoods. These bears are mobile, opportunistic, largely herbivorous omnivores that exploit a variety of foods, including insects. The distribution and abundance of foods, particularly mast such as nuts and berries, largely affect their movements. Important elements of black bear habitat include hard and soft mast, escape cover, den sites, travel corridors and minimum human disturbance.  Info from FWS, photofrom Louisiana Department of Wildlife and Fisheries.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed designation of critical habitat for the Louisiana black bear (Ursus americanus luteolus) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated DEA, and the amended required determinations section.

Will Obama transform ESA implementation? (A gaggle of ESA news from the google gadget...)

11/10/2008

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


"Now what?" asks Plenty.  With our nation soon to undergo a huge leadership transition thanks to the election of Barack Obama, could it be that the implementation of the Endangered Species Act could radically change too?  California Attorney General Brown has repeatedly called the Bush administration's proposed changes to the ESA consultation process illegal, warning the Department of Interior that its proposed changes could put entire species and ecosystems at risk for complete destruction.  See Imperial Valley News.  The California AG's concerns, and the call for repeal of the proposed regulations, have been echoed elsewhere, from Audubon to the Baltimore Sun.  In the Pacific Northwest, in an unprecedented convergence, timber industry reps and environmentalists have reached an agreement on the need for changes in the Bush administrations approach to Oregon timber management.  See Seattle Post Intelligencer and the Oregonian.  Indeed, with a touch of sarcasm, Mongabay.com noted that in his remaining weeks, "President Bush aims to extend his environmental legacy," and even the National Journal has wondered whether the Bush administrations regulations would "help or hurt."   See also, NY Times, "So little time, so much damage."

spinydogfish.jpg
Photo of a spiny dogfish, from the Guardian, citing Getty images.

The "now what" question reaches well beyond the 50 states.  On the international front, pressure for the Obama administration to green the environmental management practices of the United States is virtually certain.  Canada remains concerned about killer whale populations, says the ChronicleHerald.ca. Poaching remains a huge international problem, as exemplified by a Mongabay.com report on Malaysian wildlife.   And changes to fisheries regulation may be necessary, as suggested by the U.K. story reported by the Times online, the Scotsman, and the Guardian, about the disappearance of sharks and rays due to overfishing, based on a study by the International Union for Conservation of Nature.  

Now what? Perhaps something completely different...

District Court clarifies reasons for rejecting FWS decision to withdraw proposed slickspot peppergrass listing

11/09/2008

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


Western Watersheds Project v. Kempthorne, Case No. CV 07-161-E-MHW, 2008 U.S. Dist. LEXIS 84017 (D. Idaho, October 17, 2008)(Honorable Mikel H. Williams, United States Magistrate Judge)

BACKGROUND: The original decision in question here was discussed in a prior ESA blawg (June 2008).  That posting noted that the District Court was less-than-deferential to FWS, and that the judge's opinion could be interpreted as erroneously ordering FWS to use an expert peer review panel -- something that the Endangered Species Act does not require.  In this opinion, in response to a motion for reconsideration, the District Court further explained its reasons for rejecting the FWS January 2007 decision to withdraw a rule previously proposed in 2002 to list the slickspot peppergrass as a threatened species.

EXCERPT: When the FWS decided to not present the new information to the Science Panel, the FWS violated the requirement to base their decision on the best available scientific evidence. Surely the FWS is not now contending that they went through all of the effort of assembling the 2006 BAI, having it peer reviewed, and convening seven experts in high desert plants to study the information if that entire process would in some manner give them something less than the best scientific information upon which to make their decision. To put it another way, having the FWS managers, who were not experts on high desert plants, decide that the Slickspot peppergrass was not a threatened species based on their own interpretation of the "new" evidence was not based on the best scientific evidence then available. If these managers were experts in this field, then one may properly ask why the Science Panel was thought to be appropriate and important in the first place. And without going through each item of "new" evidence, it is particularly troubling that the Science Panel never had an opportunity to comment on the Executive Summary in the Menke and Kaye 2006b report, which states that declining population trends of Slickspot peppergrass indicated a decrease in abundance range-wide. Rather than contradicting the extinction risk assessment by the Science Panel, the new information could have very well offered further support for the conclusions of the Science Panel.
The Court agrees with the FWS, based on the cases cited earlier, that the "best scientific and commercial data available" standard cannot require an agency to conduct independent studies, for example conducting a walking tour of an 8.6 million acre site or further testing to determine the effects of various environmental factors. See Arizona Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1027 n. 6 (D. Ariz. 2008); Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 19-20 (D. D.C. 2001). The Court's remand order is not remotely close to these examples. The Court is not asking the FWS to conduct independent studies or other further testing. The information that the FWS contends called into questions the previous recommendations of Manager Panels I and II was "available" and could have been considered. Instead, the Court is ordering that the FWS base its decision on the best scientific information then available about the Slickspot peppergrass. While they may be more than one path to arrive at the best scientific information, certainly following the procedures that the FWS had already decided from the very beginning were appropriate in this case, would logically lead to a decision based on the best science.

Court denies effort to transfer fairy shrimp critical habitat litigation to California

11/09/2008

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


Otay Mesa Property v. U.S. Dept. of the Interior, --- F.Supp.2d ----, Civil Action No. 08-383(RMC), 2008 WL 4767998 (D.D.C., Nov. 3, 2008.) Rosemary M. Collyer, District Judge.  

EXCERPT: This case involves a challenge to a final critical habitat determination by the United States Fish and Wildlife Service for the San Diego fairy shrimp (Branchinecta sandiegonensis ), an endangered species which inhabits the waters in and around San Diego County, California. The Federal Defendants move to transfer the case to the Southern District of California, asserting that the interests of justice will be served best by transferring this action. In support of their motion, the Federal Defendants observe that the agency that substantially developed the final critical habitat determination at issue is located within the Southern District of California, two of the Plaintiffs reside in the Southern District of California, and all five of the critical habitat units designated for the San Diego fairy shrimp are located in southern California, four of which are located in San Diego County. Despite the location of the property at issue, the Court finds that the arguments in favor of transfer do not outweigh the deference afforded to the Plaintiffs' choice of forum, and therefore will deny the Federal Defendants' motion to transfer this case to the United States District Court for the Southern District of California.

vernalpoolsSanDiego.jpg
The San Diego fairy shrimp, a tiny freshwater species whose decline points to a loss of unique California wetlands, was added to the Federal endangered species list in 1997 by the U.S. Fish and Wildlife Service. 62 Fed.Reg. 4925 (Feb. 3, 1997).  Most of the species' remaining habitat is on Federal land or in areas involved in conservation planning efforts.  Specifically, these shrimp live in vernal pools, which once dotted most of California's Central Valley and coastal southern California. Vernal pools are seasonal wetlands that fill with water during fall and winter rains. They are home to many plants and animals that, in turn, form a valuable part of the food chain for a wide array of animals, including birds of prey, shorebirds, migratory waterfowl, frogs, toads, salamanders, and pollinating insects.  In 2000, the FWS proposedand eventually designatedapproximately 4,000 acres in Orange and San Diego counties in California as critical habitat for the species.  65 Fed.Reg. 63438 (Oct. 23, 2000). Plaintiffs in this case, Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC, are owners of unimproved land in the Otay Mesa area of San Diego County, California. The 2000 final determination did not include any of Plaintiffs' land.   Photo above of San Diego's vernal pools from blogger urbp240_2007

Attempt to challenge delayed five-year status review for suckers dismissed by U.S. District Court in Oregon

11/08/2008

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


Moden v. U.S. Fish & Wildlife Service, Civil No. 08-CV-214-CL, 2008 WL 4763025 (D.Or. Oct. 27, 2008)(Recommendations by Magistrate Judge Clarke adopted by Judge Panner)

 Plaintiffs filed a complaint under the Endangered Species Act ("ESA") alleging that the United States Fish and Wildlife Service ("FWS") breached its nondiscretionary duty to utilize the best available scientific and commercial data in its decision making, and that FWS's breach of that nondiscretionary duty was arbitrary and capricious.

lostriverSucker.jpg
In five-year reviews, FWS determined that the Lost River Sucker should be downlisted from endangered to threatened and that the Short Nose Sucker should remain listed as endangered.  Plaintiff's effort to challenge the delay in the release of these documents was dismissed for lack of subject matter jurisdiction.  Photo of Lost River Sucker from FWS (pictured fish is 30-35 years old)

Read More

With some procedural issues resolved, litigation over Glen Canyon Dam and the humpback chub moves to next phase

11/02/2008

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


Grand Canyon Trust, Plaintiff, vs. U.S. Bureau of Reclamation, Case No. CV-07-8164 PCT-DGC (D. Arizona, Sept. 26, 2008), 2008 U.S. Dist. LEXIS 83853

Plaintiff Grand Canyon Trust filed suit (see press release) against the United States Bureau of Reclamation and the Commissioner of the Bureau (collectively, the "Bureau"). Dkt. # 1. Plaintiff has named the United States Fish and Wildlife Service ("FWS") as a defendant in a supplemental complaint. Plaintiff describes itself as an organization created to "protect and restore the canyon country of the Colorado Plateau" including its "diversity of plants and animals." Dkt. # 59 P 8. Plaintiff claims that the Bureau's current operation of the Glen Canyon Dam, particularly the Dam's non-seasonal fluctuating releases of water into the Colorado River, jeopardizes the endangered humpback chub and its habitat and fails to comport with statutory procedures. The Court allowed several States and other entities to intervene in this case as defendants.

The Bureau operates the Dam using a water release system known as the "modified low fluctuating flow" or "MLFF." Plaintiff contends that the MLFF system impermissibly harms the humpback chub and its habitat, while a "seasonally adjusted steady flow" or "SASF" system would be more accommodating of the chub and more consistent with the Bureau's obligations under the ESA. Plaintiff also claims that the Bureau has failed to fulfill its obligation to consult with FWS in developing the Dam's annual operating plans and to assess the environmental impacts of those plans.

In this decision, the U.S. District Court attempted to resolve a series of preliminary, procedural questions for some claims, but ultimately concluded that most of the claims were intertwined, and would require additional briefing.  Most notably, the Court found that claims originally associated with a 1994 biological opinion were not rendered moot by the issuance of a 2008 biological opinion, because the Plaintiff supplemented its original complaint, apparently alleging that the Bureau of Reclamation, by relying upon the 1994 and 2008 biological opinions, had violated and continued to violate the ESA.  From November 2008 through February 2009, the parties will be submitting additional briefs in an effort to resolve this record review case through cross-motions for summary judgment.  

Glencanyondam.jpg
Glen Canyon Dam is located on the Colorado River in Northern Arizona. (Picture from Wikipedia).  The Dam creates Lake Powell, 186 miles long and the second largest reservoir in the United States. Congress authorized the construction of the Dam in 1956 for the purposes of "regulating the flow of the Colorado River, storing water for beneficial consumptive use, ndmaking it possible for the States of the Upper Basin to utilize . . . the apportionments made to and among them." 42 U.S.C. § 630. Generation of hydroelectric power was recognized as "an incident of the foregoing purposesquot; Id.  

humpbackChub.gif
The humpback chub is a "big-river fish" that developed in the canyons of Northern Arizona three to five million years ago.  (Picture above from the Glen Canyon Dam Adaptive Management Program).  The species exists primarily in the relatively inaccessible canyons of the Colorado River. Six humpback chub populations have been identified, five upstream of the Dam and one downstream.   The humpback chub was listed as endangered under the statutory predecessor to the Endangered Species Act ("ESA"). 32 Fed. Reg. 4001 (Mar. 11, 1967). In 1973, the chub was listed as endangered under the newly-enacted ESA. 38 Fed. Reg. 106 (June 4, 1973). In 1994, critical habitat for the chub was designated. Such habitat is essential for the endangered species' survival and therefore requires special management. 59 Fed. Reg. 13374 (Mar. 21, 1994).

ESA permit applications in Florida

11/02/2008

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


73 Fed. Reg. 64627 (Thursday, October 30, 2008) / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / WS–R4–ES–2008–N0291; 40120–1112–0000–F5/ Receipt of Applications for Endangered Species Permits

floridapanther.jpg
Photo of a Florida Panther at the Lowery Park Zoo, from John Jacobsen's flickr photopage

SUMMARY: The public is invited to comment on the following applications to conduct certain activities with threatened and endangered species:

Applicant: The University of Florida, Fort Lauderdale Research and Education Center, Davie, Florida, TE077258 (The applicant requests renewal of existing authorization to capture, tag, salvage, collect blood and tissue, and release American crocodiles (Crocodylus acutus) for research and monitoring populations throughout the species range in Florida.)

Applicant: Mark Merchant, McNeese State University, Lake Charles, Louisiana, TE196632 (The applicant requests authorization to capture, collect blood and tissue, and release American crocodiles for research purposes throughout the species range in Florida.)

Applicant: Hopi Hoekstra, Harvard University, Cambridge, Massachussetts, TE095962 (The applicant requests renewal of existing authorization to capture, tag, collect tissue samples, and release, Perdido Key (Peromyscus polionotus trissyllepsis), Choctawhatchee (P.p. polionotus), and St. Andrews (P.p. peninsularis) beach mice while conducting research activities throughout Florida.)

Applicant: Tampa’s Lowry Park Zoo, Tampa, Florida, TE763742 (The applicant requests renewal of existing authorization to receive and maintain in captivity Florida panthers (Felis concolor coryi) in cooperation with the State of Florida and the Service for species recovery activities.)

FWS notices: no listing for Sacramento Valley tiger beetle; status review for dusky tree vole; revisiting grey wolf DPS

11/02/2008

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


73 Fed. Reg. 63421 (Friday, October 24, 2008) / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 WS–R8–ES–2008–0112; MO 9221050083–B2/ Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Sacramento Valley Tiger Beetle as Endangered.

tigerbeetle.jpg
Extensive survey efforts of areas with known populations and other areas with suitable habitat have been unable to locate any extant populations of the Sacramento Valley tiger beetle.  Photo of Cicindela hirticollis, not the now extinct subspecies Cicindela hirticollis abrupta from California State University Sacramento.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Sacramento Valley tiger beetle (Cicindela hirticollis abrupta) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing the Sacramento Valley tiger beetle may be warranted. Therefore, we will not be initiating a further status review in response to this petition. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the Sacramento Valley tiger beetle or its habitat at any time.

KEITHINKING:  FWS declined to list the subspecies, because it concluded that it was, in fact, extinct.  "The most likely cause of the Sacramento Valley tiger beetle’s extinction is habitat change brought about by construction of Oroville and Shasta dams," FWS stated, further explaining that "Flow alterations established by these dams likely led to the gradual loss of finegrained shoreline habitat due to reduction of sediment transport, reduced variability in water flow, and resulting increases to vegetation growth along the water’s edge."  Some people will inevitably point to the failure to list the beetle as threatened or endangered as a contributing cause to its actual extinction; however, that argument begs the question of what could have been done differently, and whether even more changes to the dams (than already required due to the Delta smelt) would ever have been implemented.  An alternative view might be to look at this episode as a breakdown of the Endangered Species Act altogether.  Obviously, in its implementation of the statute, FWS is making decisions on priorities.  While people think of the ESA as protecting all species from extinction, the truth is that it can protect only the listed species that FWS (and NOAA) make priorities.  Eventually, Congress and the agencies should undertake the real debate on how those priorities are set...  sounds like a future topic for an ESA musing...

***

73 Fed. Reg. 63919 (Tuesday, October 28, 2008) / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 WS–R8–ES–2008–0086; 92210–5008–3922–10–B2 / Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Dusky Tree Vole (Arborimus longicaudus silvicola) as Threatened or Endangered / Notice of 90-day petition finding and initiation of status review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the dusky tree vole (Arborimus longicaudus silvicola) in all of its range as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). The petitioners also requested the Service to list either the north Oregon coast population of the red tree vole (A. longicaudus) as a Distinct Population Segment (DPS) or the red tree vole throughout all of its range because it is threatened or endangered in a significant portion of its range, if we determined that the subspecies, A. l. silvicola, was not a valid taxon. We find that the petition presents substantial scientific or commercial information indicating that listing the dusky tree vole as a subspecies may be warranted. Therefore, with the publication of this notice we are initiating a status review of the species, including the evaluation of  the north Oregon coast population of red tree vole and the red tree vole throughout its range, and we will issue a 12-month finding on our determination as to whether the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species. We will make a determination on critical habitat for this species if, and when, we initiate a listing action.

***

73 Fed. Reg. 63926-63932 (October 28, 2008) / DEPARTMENT OF THE INTERIOR/ Fish and Wildlife Service / 50 CFR Part 17 / WS-R6-ES-2008-008; 92220-1113-0000; ABC Code: C6RIN 1018-AW37 / Endangered and Threatened Wildlife and Plants; Designating the Northern Rocky Mountain Population of Gray Wolf as a Distinct  Population Segment and Removing This Distinct Population Segment From the Federal List of Endangered and Threatened Wildlife / Proposed rule; reopening of comment period.

SUMMARY: On February 8, 2007, we, the U.S. Fish and Wildlife Service (Service), published a proposed rule to establish a distinct population segment (DPS) of the gray wolf (Canis lupus) in the Northern Rocky  Mountains (NRM) of the United States and to remove the gray wolf in the NRM DPS from the List of Endangered and Threatened Wildlife under the Endangered Species Act of 1973, as amended (Act) (72 FR 6106). On February 27, 2008, we issued a final rule establishing and delisting the NRM gray wolf DPS (73 FR 10514). Several parties filed a lawsuit challenging our final rule and asking to have it enjoined. On July 18, 2008, the U.S. District Court for the District of Montana enjoined the Service's implementation of the final delisting rule, see prior ESA blawg posting, after concluding that Plaintiffs were likely to prevail on merits of their claims. In light of this decision, we asked the court to vacate the final rule and remand it to us. On October 14, 2008, the court issued an order vacating our February 27, 2008, final rule (73 FR 10514) and remanding it back to the Service for further consideration.

We announce the reopening of the comment period for our February 8, 2007, proposed rule (72 FR 6106). We now intend to reconsider our 2007 proposed rule and issue a new listing determination. We seek information, data, and comments from the public regarding the 2007 proposal with an emphasis on new information relevant to this action, the issues raised by the Montana District Court (described in more detail below), and the issues raised by the September 29, 2008, ruling of the U.S. District Court for the District of Columbia with respect to the Western Great Lakes gray wolf DPS (also described in more detail below). If you have previously submitted comments, please do not resubmit them because we have already incorporated them in the public record and will fully consider them in our final decision.

NOAA Notices: the extinct caribbean monk seal,

11/02/2008

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


73 Fed. Reg. 63901 (Oct. 28, 2008) / DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 224 / ocket No. 080320453–8705–01RIN 0648–XG60 / Endangered and Threatened Species; Final Rule to Remove the Caribbean Monk Seal From the Federal List of Endangered and Threatened Wildlife

caribbeanmonkseal.jpg
Photo of Caribbean monk seal from NOAA.

SUMMARY: We, the National Marine Fisheries Service (NMFS), publish this final rule to remove the Caribbean monk seal (Monachus tropicalis) from the list of endangered marine and anadromous species at 50 CFR 224.101 due to extinction of the species. We have reviewed the status of this species and determined that removal of the protections of the Endangered Species Act (ESA) for the Caribbean monk seal is warranted. The U.S. Fish and Wildlife Service (USFWS) concurred with our recommendation to delist this species in a letter dated October 17, 2008.

***

73 Fed. Reg. 64264 (Wednesday, October 29, 2008) / DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 223 ocket No. 070801431–81370–02 RIN 0648–AU92 / Endangered and Threatened Species; Conservation of Threatened Elkhorn and Staghorn Corals

SUMMARY: We, the National Marine Fisheries Service (NMFS), publish this final rule to apply all the prohibitions enumerated in section 9(a)(1) of the Endangered Species Act (ESA) to elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals, with limited exceptions for two specified classes of activities that contribute to the conservation of the listed corals. We have determined that extending these prohibitions with two exceptions is necessary and advisable to provide for the conservation of the species.

EXCERPT: Based on the status of the species and the threats affecting them, we believe that the ESA section 9(a)(1) prohibitions are necessary and advisable for the conservation of threatened elkhorn and staghorn corals. We believe that the prohibitions are not necessary and advisable in specific circumstances, and we are providing two exceptions for scientific research and enhancement and restoration activities, when conducted by specified entities under specified legal authorities.


California Attorney General pushes DOJ's Solicitor General to seek en banc review of Federal Circuit's Casitas decision

10/23/2008

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


A few weeks ago, this blawg posted the results of Casitas Municipal Water District v. United States, Case No. 2007-5153 (Fed. Cir. Sept. 25, 2008).  See ESA blawg (Sept. 29, 2008).  In commentary, I warned that the ruling had significant potential consequences for ESA implementation.  Stretched to its limits, the opinion can be read to mean that simply requiring people to leave water in a watershed -- a perfectly reasonable request when excessive water use destroys that very watershed (and its species) -- constitutes a taking.   In a  letter to the U.S. Solicitor General, the California Attorney General Brown voiced his concern with this opinion, noting, among other points, that:

"the majority opinion ignores other important requirements of California water law that bear upon the appropriate analytical framework to be applied in this case. Specifically, as the State Water Board discussed in its amicus brief, under California law, water rights are non-exclusive, non-possessory, usufructuary rights. Cal. Water Code §§ 102, 1001; Palmer v. Railroad Comn, 167 Cal. 163, 168 (1914); Parks Canal & Mining Co. v. Hoyt, 57 Cal. 44, 46 (1880). As such, water rights cannot be physically appropriated, occupied, or invaded by a mere restriction on the exercise of such rights, as occurred in this case."  

In other words, the stakes are getting higher in this battle between Western water law and the Endangered Species Act...

Read More

9th Circuit finds conservation groups have standing to challenge treaty

10/22/2008

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


Salmon Spawning & Recovery Alliance v. Gutierrez, No. 06-35979, --- F.3d ----, 2008 WL 4490533 (9th Cir., October 8, 2008)

SUMMARY: "Wild salmon and steelhead, which are listed as threatened or endangered under the Endangered Species Act, have been the subject of much litigation in the federal courts. As they swim back and forth from the Pacific Northwest to Canada, the fish have no cognizance of an international boundary, or the Pacific Salmon Treaty ("Treaty"), an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest.  This appeal concerns whether three conservation groups have standing to challenge the decision of federal agencies and officials to enter into, and remain a party to, that Treaty. The groups alleged that take levels permitted under the Treaty have allowed Canadian fisheries to overharvest endangered and threatened salmon and steelhead. The district court dismissed all three of their claims for lack of standing. We reverse the district court in part because the groups have procedural standing to bring their third claim for relief.  We affirm the dismissal of the first and second claims."

TreatySigning.jpg
The Pacific Salmon Treaty embodies the commitment made by Canada and the United States to carry out their salmon fisheries and enhancement programs so as to:  prevent over-fishing and provide for optimum production, and ensure that both countries receive benefits equal to the production of salmon originating in their waters.  Image from PSC.org

Read on for additional analysis, excerpts, and Keithinking...
Read More

Recent FWS notices: Critical habitat revisions for Canada lynx and wintering Piping Plovers; 48 more listings in Kauai

10/21/2008

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


73 Fed. Reg. 62450 (Tuesday, October 21, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R6–ES–2008–0026; 92210–1117–0000–B4 RIN 1018–AV78; Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx (Lynx canadensis); reopening of comment period and announcement of public hearings, notice of availability of draft economic analysis, amended required determinations, and draft environmental assessment.)

CanadaLynxFWS.jpg
Canada lynx have thick cushions of hair on the soles of their large feet, which act like snowshoes. They are twice as effective as bobcats at supporting their weight on the snow.  Photo from FWS.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period and the scheduling of public hearings on the proposed revised designation of critical habitat for the contiguous United States distinct population segment of the Canada lynx (Lynx canadensis) (lynx) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability for public comment of the draft economic analysis (DEA), an amended required determinations section of the proposal, and the draft environmental assessment for the proposed revised critical habitat designation. We also seek comment on draft conservation agreements that cover lands in Maine (Unit 1) and in the northern Rockies (Unit 3) that could result in exclusions from the final critical habitat designation under section 4(b)(2) of the Act. We also seek public comment on whether lands entered in to the Healthy Forest Reserve Program are appropriate for exclusion. In addition, we propose to refine boundary descriptions for two critical habitat units: Unit 3 (Northern Rockies) and Unit 5 (Greater Yellowstone Area) based upon more detailed information we have obtained about lynx habitat in these areas.

* * * * *

73 Fed. Reg. 62816 (Tuesday, October 21, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service 50 CFR Part 17 WS–R4–ES–2008–0041; 92210–1117–0000–B4 RIN 1018–AU48; Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in North Carolina; Final rule).

PipingPloverWintering.jpeg
The peer review and public comment on the proposed rules were substantial, and covered a wide range of topics.  According to FWS, "the
peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule."  Photo from FWS and its Proceedings of the Symposium on the Wintering Ecology and Conservation of Piping Plovers.
 
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the wintering population of the piping plover (Charadrius melodus) in North Carolina under the Endangered Species Act of 1973, as amended (Act). In total, approximately 2,043 acres (ac) (827 hectares (ha)), in Dare and Hyde Counties, North Carolina, fall within the boundaries of the revised critical habitat designation.

NOTEWORTHY EXCERPT: Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that wintering piping plover’s primary constituent elements are the habitat components that support foraging, roosting, and sheltering and the physical features necessary for maintaining the natural processes that support these habitat components. The primary constituent elements are: (1) Intertidal sand beaches (including sand flats) or mud flats (between annual low tide and annual high tide) with no or very sparse emergent vegetation for feeding. In some cases, these flats may be covered or partially covered by a mat of blue-green algae; (2) Unvegetated or sparsely vegetated sand, mud, or algal flats above annual high tide for roosting. Such sites may have debris or detritus and may have micro-topographic relief (less than 20 in (50 cm) above substrate surface) offering refuge from high winds and cold weather; (3) Surf-cast algae for feeding; (4) Sparsely vegetated backbeach, which is the beach area above mean high tide seaward of the dune line, or in cases where no dunes exist, seaward of a delineating feature such as a vegetation line, structure, or road. Backbeach is used by plovers for roosting and refuge during storms; (5) Spits, especially san