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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.


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.


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.

« Should NOAA list the Pacific eulachon? | Main| Court enjoins BLM grazing rule; orders ESA consultation (just as FWS previously requested) »

Court defers to FWS biological opinion on sparrows despite Tribal concerns for snail kites

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Miccosukee v. USA, 528 F.Supp.2d 1317(S.D.Fla. Dec. 21, 2007)
        CLAIMS: Tribe alleged that 2006 Biological Opinion on the Army Corps’ “Interim Operating Plan” for the southern Everglades violated the Endangered Species Act.  Specifically, the Complaint alleges that in late 1997, the FWS began demanding the closure of certain water management structures along Tamiami Trail to stop the flow of water out of WCA-3A to benefit the endangered Cape Sable Seaside Sparrow located downstream, in Everglades National Park, to the south. Plaintiff alleges that the closing of these gates has resulted in harm to both Plaintiff and endangered species, specifically the Snail Kite and its critical habitat. Specifically, the Tribe alleged that the closing of the gates and the subsequent restriction of water flow may keep water levels behind the gates abnormally high. This increased water depth, as described above, could reduce the number of attainable apple snails, which are the Snail Kite's primary food source.
        RULING:  This Court must grant deference to FWS' determinations and discretionary decisions. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373 (2004)… FWS utilized the data available, made determinations about which data to rely upon, and successfully countered each of Plaintiff's allegations of non-compliance… data and studies relied upon by the FWS do not have be flawless, and FWS' decision to rely on particular data is subject to deference. See American Iron and Steel Institute v. E.P.A., 115 F.3d 979, 1005 (D.C.Cir.1997). Thus, as to Count I, FWS did not act arbitrarily and capriciously in rendering the 2006 BO because the decision was based on a consideration of the relevant factors and there was not a "clear error of judgment." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Plaintiffs may disagree with FWS' conclusions, but that does not render their findings arbitrary and capricious...  Conclusion. The Court is satisfied that FWS… rendered its 2006 BO based upon the relevant factors and exercised its statutorily and jurisprudentially protected discretion and made a correct judgment as to the immediate preservation of the Sparrow.

Snail kite photo from FWS



FWS considered the best available science.  Plaintiff claims FWS did not use the best science available in rendering its 2006 BO, allegedly because FWS failed to consider updated 2003 Snail Kite data and field reports. Federal Defendants responded that FWS did consult the 2003 Snail Kite Report in making its 2006 BO, but, after submitting the report for peer review and receiving comment, determined that the report was unreliable and analytically flawed.  FWS is free to exercise their discretion in choosing which opinions they opt to place reliance on. See Marsh, 490 U.S. at 378.

FWS’s jeopardy analysis was reasonable.  Agencies are entrusted with great discretion and deference in utilizing their expertise to make determinations on the best way of protecting all endangered species. In this case, FWS made the determination that restricting the water flow, while negatively affecting the Snail Kite, was important in maintaining nesting grounds for the Sparrow. See AR 3322 at 65- 66 ("[w]hile this hydroperiod is longer than what is considered optimal for sparrows, it does support some sparrow habitat"). It appears that the parties agree that the IOP will not necessarily permit the Sparrow to flourish, but as Defendants maintain, it should preserve the number of Sparrows until a long term solution is enacted. The record also indicates that the Sparrow is in greater danger of extinction and is less viable than the hardier Snail Kite.  

FWS did not need to provide a numeric incidental take statement. Plaintiff calls particular attention to the ITS' lack of a specific number of endangered species that can be taken; the endangered species include the Sparrow, Snail Kite, and Wood Stork. Plaintiff cites nonbinding authority of the 9th Circuit as the justification that FWS must articulate its ITS figures in definite numerical terms…  FWS maintains in this particular instance, obtaining a figure on the number of birds is impracticable because WCA-3A is approximately 786 square miles… FWS' habitat benchmarks for the Snail Kite are in terms of water recession… Similarly, FWS established the incidental take of the Sparrow based upon amount of water release… Water release appears to be a logical incidental take benchmark for the Sparrow because it is flooding that destroys Sparrow nests.

FWS did not violate the ESA Section 7 consultation process.  Plaintiff complains that the statutorily required consultation, which took place, did not occur within Plaintiff's preferred time line… Plaintiff does not dispute that consultation took place, but rather that FWS waited too long in conducting the consultation…  FWS' determination as to when to initiate consultation remains up to its discretion. As discussed above, FWS' determinations and assessment of data are upheld because they are not arbitrary, capricious, or a clear error in judgment, but rather represent an attempt to strike a balance among competing interests and to preserve all species under challenging circumstances.

The “conservation” duties of §7(a)(1) do not apply to FWS, yet FWS met them.  Defendants correctly note that the responsibility of reinitiating consultation under Section 7(a)(1), 16 U.S.C. § 1536(a)(1), applies to the action agency, not FWS. See Salmon Spawning & Recovery Alliance, 477 F.Supp.2d 1301, 1304 (CIT 2007).  Since FWS administers ESA, it would be illogical to read ESA§7(a)(1) to require FWS to consult with the Secretary regarding a program that it already administers and serves as chief consultant…  Regardless of Plaintiff's contention that additional FWS consultation is required under § 7(a)(1), FWS has satisfied this alleged additional duty by rendering an opinion aimed at conservation. This Court has previously held that "in fulfilling the requirements of ESA § 7(a)(1), as long as an agency has implemented a program aimed at conservation, the 'court is not the proper place to adjudge and declare that defendants have violated the ESA as a matter of law by not implementing the process listed by [plaintiff].' " Florida Key Deer v. Brown, 364 F.Supp.2d 1345, 1360 (S.D.Fla.2005)