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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.

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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.

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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.

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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.

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10th Circuit grants an ESA victory to Forest Service in Preble's mouse consultation case

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Center for Native Ecosystems v. Cables (10th Cir., Dec. 17, 2007)(Forest Service's analysis in an "update" to an ESA consultation adequately considered "conservation", and as part of the administrative record, satisfied requirements of the ESA). Click here for opinion.

    BACKGROUND:  
    Pursuant to the ESA, the U.S. Forest Service completed a biological assessment in 1998 (the 1998 BA) analyzing the effects on the Preble’s mouse of the proposed revisions to a grazing allotment management plan.  FWS concurred with the 1998 BA’s conclusion that the allotment management plan revisions, “as described, renot likely to adversely affect Preble’s ouse”  However, FWS later designated critical habitat for the mouse.  In 2003 the Forest Service prepared a new biological assessment concluding that that “ere is no evidence of detrimental effects of livestock grazing" to the mouse.  In addition, in a 2004 update to the 1998 and 2003 BA, the Forest Service bserved that previously established mitigation measures were “leading to a stable or improving trend in riparian areas. These areas provide the mainstay of Preble’s habitat and are most important to conservation of the species.”

PreblesJumpingMouse.jpg
Preble's mouse, from public domain clip art.

    EXCERPTS OF RULING:
    "We agree with CNE’s view of what the Forest Service was required to do: Section 1536(a)(2) requires federal agencies, when considering the effect of their actions on a species’ critical habitat, to consider the effect of those actions on the species’ recovery.  Contrary to CNE’s contention, however, we read the record as showing that the Forest Service did what was required. As the Forest Service points out on appeal, after the critical habitat for the Preble’s mouse was designated in June 2003, it did in fact consider recovery when it considered the effect of grazing on the conservation of the Preble’s mouse."
    In addition, the 10th Circuit found that the Forest Service did not err, even though it did not reinitiate ESA §7 consultation after the designation of critical habitat, because the Forest Service reasonably concluded that there were no additional effects for the species.  As the 10th Circuit explained, "FWS accepted the validity of the Forest Service’s methodology in January 2005 when it concurred in the 'not likely to adversely effect' finding for the Preble’s mouse’s critical habitat. The FWS’s concurrence at that time was expressly based on the Forest Service’s finding that there was 'appropriate utilization meeting the 1985 Forest Plan standards' ... The Forest Service’s 2004 conclusion that the effects of grazing were the same as those considered in 1998 was not arbitrary or capricious, and hence its determination that it need not reinitiate consultation on the effects of grazing on the Preble’s mouse did not violate the ESA."
   The Court also rejected plaintiffs Clean Water Act claims.

    COMMENTARY:
    The degree of deference given to Federal agencies by the 10th Circuit (especially when compared to many 9th Circuit cases!) remains noteworthy.  Here, the 10th Circuit declined to rewrite the federal agency's scientific analyses, and moreover, demonstrated willingness to dig deep into the administrative record to find evidence supporting the agency.