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

« After procedural analysis, District Court dismisses lawsuits over FWS decisions not to designate Florida panther critical habitat | Main| The Key Largo Woodrat's Wild Ride »

Standing yes, merits no. Wildearth Guardians loses dispute over petition to list Columbian Sharp-tailed grouse

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WILDEARTH GUARDIANS v. U.S. SECRETARY OF THE INTERIOR, No. 4:08–cv–00508–EJL–LMB, 2011 WL 1225558 (D. Idaho, Feb. 11, 2011)
Report and Recommendation of Larry M. Boyle, United States Magistrate Judge.

INTRODUCTION.  This action is a challenge to the U.S. Fish and Wildlife Service's (“FWS”) 90–day finding concerning the Columbian sharp-tailed grouse (Tympanuchus phasianellus columbianus ). 90 Day Finding on a Petition to List the Columbian Sharp-tailed Grouse as Threatened or Endangered, 71 Fed.Reg. 67,318 (Nov. 21, 2006) (“Finding”). The Finding by FWS denied designation of the Columbian sharp-tailed grouse for protection as a threatened species under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Plaintiffs appealed the Finding arguing that the Secretary failed to adequately account for the bird's loss of historic range. The Secretary counters that Plaintiffs lack standing to sue, and that regardless, he fulfilled his obligations under the ESA and the Administrative Procedures Act (“APA”).

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Human activities have extirpated the Columbian Sharp-tailed Grouse (CTSG)  from the majority, over 90 percent, of its historic range. Approximately 95 percent of the current CSTG population exist in one of three unconnected meta-populations located in central British Columbia, southeastern Idaho/northern Utah, and northwestern Colorado/south-central Wyoming. The remaining five percent of CSTG reside in smaller, isolated populations throughout central British Columbia, southeastern Idaho, northwestern Colorado and south-central Wyoming. The CSTG's current range is less than ten percent of its historic range.

EXCERPT RE: STANDING: In order to establish individual standing, “a plaintiff must allege (1) personal injury (2) fairly traceable to the defendant's allegedly unlawful conduct and (3) likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).  The Kathleen Fite affidavit satisfies the standing factors: (1) Fite, as a Plaintiff employee, professional ecologist, camper, hiker, wildlife photographer and bird-watcher has a personal protectable interest sufficient for standing; (2) Plaintiffs have already detailed that the negative 90–day finding will hinder recovery efforts; and (3) reversal of that finding will redress Fite's harm.  Moreover, Fite's declaration established, with adequate detail, past and intended future use of some of the disputed land, the CSTG's range, and the particular harm to that activity, namely an inability to enjoy seeing the Grouse in its natural habitat. The injuries asserted satisfy the Lujan v.. Defenders of Wildlife, 504 U.S. 555, 560–62 (1992), requirements.

EXCERPT RE: ADEQUACY OF ANALYSIS:  Defendant contends that it has fulfilled its obligations under the APA because it reviewed all of the information submitted by Plaintiffs as well as information contained in agency files. Defendant concludes that FWS correctly rejected the petition at the 90–day stage because it lacked any information on the biological significance of the unoccupied portions of the subspecies' historical distribution. The Service concludes that it properly applied a rational interpretation of an ambiguous statutory provision (“significant portion of its range) that is entitled to deference. The Secretary points out finally that Grouse population “has, if anything, increased since 2000.” ...  The FWS 90–day Finding states,”the petition does not provide substantial information suggesting that the portion of the range where the subspecies no longer occurs is significant to the long-term persistence of the subspecies.”  FWS concludes that it is not, and explains that it “made this determination based on a combination of factors.” First, it reasoned that “the extent of habitat outside the three metapopulations is small relative to the overall range of the subspecies, roughly 4 percent of the subspecies' current occupied range.” Next, FWS explains that “there is no scientific evidence suggesting that the small, isolated populations of Columbian sharp-tailed grouse are genetically, behaviorally, or ecologically unique, or that they contribute individuals to other geographic areas through emigration.” Finally, the Finding states that “there is no scientific evidence suggesting that these habitats are important to the survival of the species because of any unique contribution to the species' natural history, e.g., for reasons such as feeding, migration, or wintering.”

It is undisputed that it is petitioner's burden to provide the FWS with a petition containing substantial information to warrant listing. At the 90–day finding stage, the agency may only consider information within the four corners of the petition. Since FWS is not permitted at the 90–day finding stage to go beyond what is provided by the petition and what is currently available in its files, the agency appropriately declined to speculate about the potential significance of the unoccupied portion of the CSTG's historic range.

***

WILDEARTH GUARDIANS v. U.S. SECRETARY OF THE INTERIOR, No. 4:08–cv–00508–EJL–LMB, 2011 WL 1225547 (D. Idaho, March 28, 2011).
Because the Court finds the Report and Recommendation of Judge Boyle to be well founded in law, the Court hereby accepts in their entirety, and adopts as its own, the findings made by Judge Boyle.