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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.

FWS reduces critical habitat for Peninsular bighorn sheep DPS

Category Federal Register Endangered Species Act
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74 Fed. Reg. 17288 / Vol. 74, No. 70 / Tuesday, April 14, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Peninsular Bighorn Sheep and Determination of a Distinct Population Segment of Desert Bighorn Sheep (Ovis canadensis nelsoni)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the Peninsular bighorn sheep, a distinct population segment (DPS) of desert bighorn sheep (Ovis canadensis nelsoni) occupying the Peninsular Ranges of Southern California, under the Endangered Species Act of 1973, as amended (Act). In total, approximately 376,938 acres (ac) (152,542 hectares (ha)) fall within the boundaries of the critical habitat designation. This revised designation of critical habitat for Peninsular bighorn sheep reduces the 2001 designation by approximately 467,959 ac (189,377 ha). The revised critical habitat is located in Riverside, San Diego, and Imperial Counties, California.

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Peninsular bighorn sheep inhabit dry, rocky, low-elevation desert slopes, canyons, and washes from the San Jacinto and Santa Rosa mountains near Palm Springs, California south into Baja California, Mexico.  The species is exposed to dangers including habitat reduction, automobile collisions, ingestion of poisonous ornamental plants, high predator densities, and parasites and disease. Photo and caption info from the Bighorn Institute.

EXCERPT: The areas identified in this final revised rule constitute a revision of the areas we proposed to designate as critical habitat for Peninsular bighorn sheep on October 10, 2007 (72 FR 57740). In light of substantial public comments and a revision of our criteria used to identify critical habitat, we reevaluated and included in this final rule three general areas that were not included in the 2007 proposed rule. These additions were announced in the NOA published in the Federal Register on August 26, 2008, (73 FR 50498), and include the following: Areas along the eastern edge of the Santa Rosa Mountains in Units 2A and 2B; parts of the San Ysidro, Pinyon, and Vallecito Mountains in Unit 2B; and a portion of the Jacumba Mountains in Unit 3 (approximately 36,240 ac (14,666 ha)). The reduction in total area from the 2007 proposed critical habitat designation is primarily the result of habitat exclusions under section 4(b)(2) of the Act.

KEITHINKING: The announcement includes a lengthy section with public comments and responses, but in the end, a substantial reduction in critical habitat results -- over a 50% reduction -- largely due to the exclusion of tribal lands, and lands with HCPs or other approved management plans.  According to the Silicon Valley Mercury News, the Center for Biological Diversity intends to challenge the agency action.  The Federal Register announcement is also noteworthy for its explanation of FWS' views on critical habitat, and the agency opinion that Habitat Conservation Planning is a more effective tool for protection of endangered and threatened species:
We believe that in many instances the regulatory benefit of critical habitat is minimal when compared to the conservation benefit that can be achieved through implementing Habitat Conservation Plans (HCPs) under section 10 of the Act or other habitat management plans. The conservation achieved through such plans is typically greater than what we achieve through multiple site-by-site, project-by-project, section 7(a)(2) consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7(a)(2) consultations only commit Federal agencies to preventing adverse modification of critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed action. Thus, implementation of an HCP or management plan that incorporates enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation.



FWS reopens comment period and public hearings on revisions to Peninsular bighorn sheep critical habitat

Category Federal Register
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73 Fed. Reg. 50498 (Tuesday, August 26, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS–R8–ES–2008–0005; 92210–1117–0000–B4 RIN 1018–AV09; Endangered and Threatened Wildlife and Plants;  Designation of Critical Habitat for the Peninsular Ranges Population of Desert Bighorn Sheep (Ovis canadensis nelsoni); Proposed rule; reopening of comment period, revised proposed critical habitat, notice of availability of draft economic analysis, notice of public hearings, and amended required determinations).

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According to the Coachella Valley Multiple Species Habitat Conservation Plan, "the Peninsular bighorn sheep is endangered because of the loss and fragmentation of Habitat, disease, and predation. A limiting factor is that the sheep live in a narrow band of Habitat in which they must find the resources needed to survive in a harsh desert environment."  The CVMSHCP conservation goals expressly address the needs of the species. Photo of Bighorn sheep from Department of Interior Bureau of Land Management.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period and the scheduling of public hearings on our October 10, 2007, proposed revision to critical habitat for the Peninsular bighorn sheep (Ovis canadensis nelsoni) under the Endangered Species Act of 1973, as amended (Act). In this document, we propose to add approximately 36,240 acres (ac) (14,667 hectares (ha)) to our proposed revision of critical habitat. We also announce the availability of the draft economic analysis (DEA) of the proposed revision to critical habitat and amended required determinations. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revisions to critical habitat, the associated DEA, and the amended required determinations section. Please do not resend comments that you submitted on the October 10, 2007, proposed rule. We considered those comments in our revisions to the proposed critical habitat that are set forth in this supplemental proposed rule. Comments previously submitted are included in the public record for his rulemaking.

EXCERPT RE: ADDITIONAL HABITAT: FWS added new areas of critical habitat to the proposed designation. For example, "During the public comment period, a number of comments we received from biologists familiar with the Peninsular bighorn sheep provided additional information regarding the importance of low-elevation and alluvial fan habitat along the eastern edge of the Santa Rosa Mountains. We also received a limited amount of recently collected occurrence data in the wash areas along the eastern edge of the south Santa Rosa Mountains. In light of these comments and the revision of our criteria used to identify critical habitat to include occurrence data since 1988, we reevaluated and revised our proposed revised critical habitat boundary along the eastern edge of the Santa Rosa Mountains. We agree that low-elevation habitat is important for Peninsular bighorn sheep, and where occurrence data indicated sheep use, we revised our proposed revision of critical habitat to include four additional areas along the eastern edge of the Santa Rosa Mountains.  Similarly, "since the proposed revised critical habitat was published, there have been additional sightings and reports of sheep activity around and within the Interstate 8 ‘‘Island,’’ including suitable habitat areas that extend south to the United States-Mexico border recently collected by Service biologists and other biologists familiar with the DPS include actual sightings of multiple sheep and reports of sheep scat and tracks throughout the area, indicating that this area is currently occupied by a group of Peninsular bighorn sheep. This area exhibits rugged habitat that contains the features  essential for Peninsular bighorn sheep conservation and is continuous with habitat in Mexico...."

NOTEWORTHY EXCERPTS RE: REMOVAL AND EXCLUSIONS OF CRITICAL HABITAT.  While FWS added some critical habitat, it substracted some too...   Changes to Areas Currently Being Considered for Exclusion.  Based on ownership updates and additions to the proposed revised critical habitat described in this document, there are approximately 6,302 ac (2,550 ha) of private and draft CVMSHCP (Coachella Valley Multiple Species Habitat Conservation Plan) permittee-owned and in Unit 1 and 12,499 ac (5,058 ha) in Unit 2A. We are now evaluating and considering the possible exclusion from the final revised critical habitat designation approximately 18,801 ac (7,609 ha) of private and draft CVMSHCP permittee-owned lands covered by the draft CVMSHCP under section 4(b)(2) of the Act.

KEITHINKING: Public comment does serve a purpose, and FWS clearly does respond to it.

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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

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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)

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"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."

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"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