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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.

uvaswords.jpg

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.

Battle over Bush Administration's consultation regulations begins anew.

Category ESA musings
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Yesterday, the Center for Biological Diversity praised a U.S. House of Representatives Appropriations Committee for moving an omnibus appropriations bill that, if passed, "will give President Obama power to rescind rules weakening both the Endangered Species Act and protections for the polar bear."   See Press Release. CBD says that the rules are "a disaster for the polar bear and hundreds of other species,” and the legislation will enable the administration to avoid another procedural rulemaking process and "rescind the rules so old rules will take effect immediately."
Unsurprisingly, the cattle farmers, and others, express a competing viewpoint, and they "urge opposition" to the "recent improvements" to the ESA.  See CattleNetwork. From their perspective, the regulations"expedite consultations between agencies and allow for a more efficient use of limited resources."

Congressional Republicans today took up the cattle farmers cause, reports the New York Times. According to Sen. Lisa Murkowski (R-Alaska) and Rep. Doc Hastings (R-Wash.), repeal of the regulations, and the reinstatement of the old rules (in place for more than a decade) could empower the Department of Interior, creating "with far-reaching policy implementations for climate change and energy production without the slightest bit of debate is not good public policy."  The NYT also noted that Interior Secretary Ken Salazar has said there is "no doubt" that climate change is having an impact on wildlife, but dodged a question on whether he might use the Endangered Species Act to control the greenhouse gas emissions.

For more information on this topic, search www.ESAblawg.com for "consultation regulations."  


More ruminations on the consultation regulations

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Updating yesterday's ESA blawg posting, I note that there is likely to be a dispute over how the Congressional Review Act applies to the ESA Section 7 consultation regulations, if they are adopted.  Major rules, meaning $100 million in annual economic impact, cannot take effect until 60 days after Federal Register publication.  5 U.S.C. §804(2).  That means that the new regulations would not become effective until the next Congress (and President Obama).  In the current OIRA report, however, the ESA Section 7 consultations rules are characterized as MINOR, thus suggesting that the Bush Administration believes itself to have a few more days (weeks?) in which it can control its own destiny (still subject, of course, to massive amounts of litigation, and DOJ policy changes).

For more on the CRA, visit a recent Politico article or the Congressional Research Service report posted by Senator Corzine.  And one more note: the Hawaii Star-Bulletin contained an editorial today on this issue, and included a quote by White House Spokesperson Dana Perino, saying the Endangered Species Act "is a tangled web that doesn't actually help support any species, including our own."  

DanaPerino.jpeg
Image of Dana Perino from wikipedia.

Envirornmental groups send 100,000 comments on proposed changes to Section 7 consultation regulations

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According to a joint October 14, 2008 press release by the Endangered Species Coalition, Earthjustice, Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, Natural Resources Defense Council, National Audubon Society, and the Sierra Club, more than 100,000 citizens submitted comments that "opposed the Bush Administration's attempt to severely weaken the Endangered Species Act."  

KEITHINKING: If the agency's decision to decline e-mailed comments was indeed intended to reduce public input, the policy backfired.  The various conservation groups encouraged citizens to e-mail comments to them, and the organizations, in turn, submitted paper versions to the Department of the Interior and the National Oceanic and Atmospheric Administration.

New ESA consultation rules officially rescinded, but debate encouraged to continue

Category Federal Register
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74 Fed. Reg. 20421 (Monday, May 4, 2009) / Vol. 74, No. 84
DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 402 / DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; 50 CFR Part 402 / Interagency Cooperation Under the Endangered Species Act

ACTION: Final rule.

SUMMARY: With this final rule, the Department of the Interior and the Department of Commerce amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (ESA). In accordance with the statutory authority set forth in the 2009 Omnibus Appropriations Act (Pub. L. 111–8), this rule implements the regulations that were in effect immediately before the effective date of the regulation issued on December 16, 2008, entitled ‘‘Interagency Cooperation Under the Endangered Species Act.’’

EXCERPT: We believe that it is appropriate to withdraw the new regulations and return to the ‘‘status quo ante’’ pending a comprehensive review of the ESA section 7 consultation regulations. Recognizing the widespread public concern about the process in the promulgation of the new regulations, the Departments agree that a thoughtful, in-depth, and measured review would be beneficial before a determination is made regarding potential changes to the section 7 consultation regulations. The section 7 consultation process is important for the conservation of species and critical habitat and involves complex and highly technical issues; the input from career conservation biologists who have experience with the section 7 consultations and who can provide scientific and technical expertise should, of course, be a key part of the process. In addition, any rulemaking process should be accorded a sufficient period of time to provide for careful, meaningful involvement of the affected public and to ensure consistency with the purposes of the ESA. This thorough review will allow the Departments to identify a range of options and implement improvements, if appropriate...

KEITHINKING: The great debate over the ESA consultation process, begun in the waning days of the Bush Administration, appears poised to continue, and the announcement solicits public input regarding potential changes to the regulations, including such controversial topics as:
  • the definitions of ‘‘jeopardy’’ and ‘‘adverse modification’’
  • the definition of ‘‘effects of the action’
  • the definition of ‘‘action area’’,
  • the appropriate standard of causation,
  • the informal consultation process,
  • methods to streamline both formal and informal consultation,
  • flexibility for ‘‘low effect’’ consultations,
  • formal consultation requirements,
  • programmatic consultations,
  • consideration of effects related to global climate change,
  • incidental take statements, and
  • reinitiation standards.


ESA in the news: California sues Interior over consultation regulations

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California Attorney General Brown pushes forward with a lawsuit challenging the Bush administration's proposed amendments to the Endangered Species Act's consultation regulations, and according to the LA Times,Ken Alex, senior assistant attorney general, said California has won practically every case that has been ruled on.  (I think he forgot about the Delta smelt cases.)  Moving on to more hopeful topics, the The Grand Island Independent offers an article on the incremental but continuing evolution of a potential Bush administration success story, the Platte River recovery program.  Hardly satisfied with one good news story, Interior Secretary nominee Salazar wants to restore the reputation of the Department of Interior, according to the Denver Post.  Reaching beyond the U.S. borders, ebay promises to do more in 2009 to help protect elephants and avoid the ivory trade.  By the way, the ESA turned 35 this week, as noted by the Tuscaloosa News.

KEITHINKING:  As noted in my recent tweet (from my RSS twitter feed), California's suit against the Federal government could create unique opportunities for the Obama administration to craft a settlement and consent decree that quickly undoes Secretary Kempthorne's efforts to amend the ESA Section 7 consultation process.  Also, a recent Miami Herald editorial noted that "the Bush administration this month gave the National Rifle Association a parting gift by lifting a decades-long ban on concealed weapons in national parks."  As a result, concealed weapons are now legal in Everglades National Park.  Perhaps these gun owners can do their part for endangered species and shooting the pythons that threaten to eat native wildlife? (But don't forget, we need to change the no hunting and no collecting rules too, but then again, excessive hunting and poaching was why Everglades National Park was created in the first place, so...)

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Thanks to irresponsible pet owners, pythons now breed in the Everglades, and present a significant invasive species management problem .  See Davidson College's Everglades Burmese Python Project.   Photos above from South Florida Water Management District.  See also this photo from Wikimediacommons.

Obama begins reversal of Bush's ESA consultation regulations by executive memo

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THE WHITE HOUSE
Office of the Press Secretary

For Immediate Release March 3, 2009

March 3, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: The Endangered Species Act

The Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., reflects one of the Nation's profound commitments. Pursuant to that Act, the Federal Government has long required a process of broad interagency consultation to ensure the application of scientific and technical expertise to decisions that may affect threatened or endangered species. Under that interagency process, executive departments and agencies (agencies) contemplating an action that may affect endangered or threatened species have long been required, except in certain limited circumstances, to consult with, and in some circumstances obtain the prior written concurrence of, the Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) -- the expert agencies that have the primary responsibility to ensure that the ESA is implemented in accordance with the law.
On December 16, 2008, the Departments of the Interior and Commerce issued a joint regulation that modified these longstanding requirements. See 73 Fed. Reg. 76272. This new regulation expands the circumstances in which an agency may determine not to consult with, or obtain the written concurrence of, the FWS or NMFS prior to undertaking an action that may affect threatened or endangered species. But under the new regulation, agencies may continue the previous practice of consulting with, and obtaining the written concurrence of, the FWS and NMFS as a matter of discretion.
I hereby request the Secretaries of the Interior and Commerce to review the regulation issued on December 16, 2008, and to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.

Until such review is completed, I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with statutory authorities.
The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA


Salazar and Locke Announce Repeal of Bush Administration Rules Changing Consultations under the Endangered Species Act

Category ESA musings Endangered Species Act
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In a joint press release issued today, the Departments of Interior and Commerce announced a decision by Secretary Salazar and Secretary Locke to "Restore Scientific Consultations under the Endangered Species Act to Protect Species and their Habitats."  The agencies explained that they were revoking an eleventh-hour Bush administration rule that changed the Endangered Species Act (ESA) consultation process.  Their decision requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration – the two agencies that administer the ESA – before taking any action that may affect threatened or endangered species.

KEITHINKING: The decision represents a complete repudiation of the Bush Administration's efforts to alter the ESA consultation process, wholly repealing the rule, and exercising the authority granted by Congress, in the 2009 Omnibus Appropriations Act.  However, as explained in earlier ESA blawg postings (see especially Aug 16, 2008 and Nov. 22, 2008 and Dec. 11, 2008), some modification of the Section 7 process may -- eventually -- be appropriate, and the joint press release also said that "the two departments will conduct a joint review of the 1986 consultation regulations to determine if any improvements should be proposed."        

U.S. District Court in California rejects challenge of “no effect” determination for jurisdictional reasons, but foreshadows just how controversial the Bush Administration’s consultation regulations are (or could have become)

Category Case law
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Sierra Forest Legacy v. US. Forest Service, No. C-08-4240 SC., 2009 WL 416787 (N.D.Cal. Feb. 19, 2009)
 
KEITHINKING: This case resolved a jurisdictional dispute, and the Court reasonably concluded that a lawsuit could not be brought against the USFWS or NOAA Fisheries for a concurring opinion; instead, the Court held that the lawsuit should be directed at the action agency for making the “no effect determination” in the first place.  However, given the recent Bush Administration consultation regulations, and the regulation’s intention to empower action agencies to avoid consultation for “de minimus” actions, the discussion of the best available science standard in the opinion was remarkable.  Specifically, the Endangered Species Act, 16 U.S.C. § 1536(a)(2), states that "each agency shall use the best scientific and commercial data available" during the consultation process.  However, in what should probably be considered dicta, the Court found that a “no effect” concurrence was not part of the formal consultation process, and therefore, a challenge to the "no effect" decision was not subject to that best available standard.  If that logic were applied in the future to an action agency finding of some activity to be “de minimus” pursuant to the new Bush consultation regulations, then it would also mean that the agencies would not need to rely on science, and the cries of foul play would grow even louder – and probably with great justification.  The logic, however, seems flawed.  If the statute requires a decision to consult, and the consultation itself, to be based on the “best available science,” then it seems it should also require a decision not to consult to be based upon the best available science as well.

GeneralGrantTree.jpg
Plaintiffs challenged an amendment to the "land and resource management plan" for the Sierra Nevada National Forest adopted by the United States Forest Service ("Forest Service")… These forests are managed by the Forest Service pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601 et seq. which requires a plan to (in part) "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B). The Forest Service sought to amend its plan to reduce its tracking and monitoring of “management indicator species”--certain bellwether species whose population fluctuations are believed to be indicators of the effects of various forest management activities—from 60 species to 13.  The Forest Service’s Biological Assessment concluded that the MIS Amendment would have "no effect" on threatened or endangered species, or on the critical habitat of such species, and the National Marine Fisheries Service and U.S. Fish and Wildlife Service both concurred.   Photo of the The General Grant Tree, Kings Canyon National Park, from NPS. For the rest  of  the opinion...  
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Secretary Kempthorne announces final (but still controversial) consultation regulations.

Category ESA musings
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The Rolling Stone dubbed them a "final FU" from the outgoing President.  Despite the enormous opposition of 200,000 or 300,000 public comments, and the likely rejection by Congress and the Courts, see prior ESA musing, the Section 7 consultation regulations were announced as final today.  However, according to the 12/11/2008 statement by Secretary Kempthorne, "The rule was narrowed from the proposed regulation so there will be fewer opportunities for federal agencies to proceed without consultation."  

KEITHINKING: Further analysis is needed, but upon an initial reading, the critical and most controversial provisions in 50 C.F.R. Sec. 402.03 have indeed been re-written, and improved.  For example, the language has been modified to be much more clearly connected to global climate change (see 50 C.F.R. 402.03(b)(2), as revised in final format), rather than in a broader range of circumstances (such as the generic exemption from consultation for actions that are an "insigificant contributor" to effects on species or habitat originally proposed in 50 C.F.R. 402.03(b)(2)).  Also, while certainly controversial, probably hastily rushed to final format, and perhaps problematic, the regulations have merits too.  Most notably, these regulations would eliminate the need for time-consuming formal consultation when the effects of a proposed agency action are wholly beneficial.  Consider the changes for yourself and compare the original version of the regulations from August 2008 with the final version announced today:

PROPOSED (AUGUST 2008):
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.

FINAL (DECEMBER 2008):
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1)        Such action has no effect on a listed species or critical habitat; or
(2)        The effects of such action are manifested through global processes and
(i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or
(ii) would result at most in an extremely small, insignificant impact on a listed species or critical habitat, or
(iii) are such that the potential risk of harm to a listed species or critical habitat is remote; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being measured or detected in a manner that permits meaningful evaluation; or
(ii) Are wholly beneficial.

BOTTOM LINE: The revised regulations include numerous improvements when compared with the original version.  Still, the effort to minimize consideration of global climate change in endangered species management will remain controversial, while the other nuanced terminology changes will require very careful scrutiny to be fully understood.  The media coverage, however, has missed those nuances, the litigation battle lines have already been drawn, and many people seem to think that nothing much has changed.  See Seattle Post Intelligencer and Wall Street Journal and Associated Press.

Laverty.jpg Rauch.jpg
The final regulations were signed by Lyle Laverty (left photo), Assistant Secretary for Fish and Wildlife and Parks, and a former Director of Colorado Parks and former U.S. Forest Service manager, (see National Parks Traveler and Wild Wilderness), and by Samuel Rauch (right photo), NOAA's Deputy Assistant Administrator for Regulatory Programs, and a former DOJ litigator.

DOI climate change report on legal and policy issues includes noteworthy discussion of the ESA

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In a recently announced Department of Interior document, the Report of the Subcommittee on Law and Policy: An Analysis of Climate Change Impacts and Options Relevant to Legal and Policy Issues at the Department of the Interior, the Federal government discusses the potential implications of global climate change for Endangered Species Act implementation, summarizing the possible issues as follows (see pp. 7, 29):

Over time, the effects of climate change may have a tendency to move existing plant and animal species farther north and to higher elevations to maintain the moisture and temperature resources they need. When, where, and to what extent that will occur will be difficult to predict. This ecosystem movement may ultimately shift species outside of their existing range and the currently designated critical habitat over the next few decades. This section on species movement deals with those circumstances where the species can successfully pursue that mix or resources. The next section addresses the concern that some species may not be able to survive the changing conditions.

Federal agencies have an affirmative obligation to manage their lands to protect and recover endangered species. These species may be stressed or migrate in response to increased climate change effects. Options include: (i) seeking a Solicitor's opinion concerning the legal meaning of the term "foreseeable future" as used under the ESA, to provide some guidance on the standard for relying on forward-looking models instead of historic data to make decisions; (ii) seek a Solicitor's opinion concerning the options available in designating critical habitat; (iii) exercising greater use of the ESA's authority to introduce experimental populations outside of a species historic range; (iv) streamlining the HCP process; and (v) increasing participation in voluntary species conservation through conservation easements, no-surprises, safe harbor agreements, no-take agreements, financial incentives, and recovery incentives.

KEITHINKING: It is remarkable that the Department of Interior can so openly acknowledge the potentially enormous implications of global climate change for endangered species, while simultaneously adopting new ESA Section 7 consultation regulations that clearly limit the review and consideration of those very implications when managing endangered species.  

Ruminations on the consultation regulations

Category ESA musings
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FROM A READER: "What is going on with the proposed section 7 regs?  They were not in yesterday's Federal Register.  We have heard different stories - they are not going to be issued or they will be in out in late December.  One of our guys in DC said that Congress has to be in session for the 60 days to apply, and a solicitor told me that Obama can withdraw the regs even if they do come out.  Inquiring minds want to know!!"

KEITHINKING:  The news media is all over the place on what will happen, as an earlier ESA musing suggests.  But here are my observations:

1. The nation spoke, causing the Bush administration to address their comments.

I know some people can't believe that President Bush would ever abandon his views, but lets face it, there were 200,000 public comments, overwhelmingly opposing the regulations, and the election was 365-173.  Public outcry against the regulations continues to be intense, and, at a minimum, slowed the rulemaking process down.  Still, the LA Times reports that administration officials breezed through 250,000 public comments in less than a week, and quotes Andrew Wetzler, director of the endangered species project at the Natural Resources Defense Council, as saying "They've clearly made a predetermined decision to issue it no matter what the public comments say, which is not what we're supposed to do in this country."  According to the General Services Administration, which offers info on the status of rulemaking from the White House Office of Management and Budget, the rules were sent for their final review stage with Office of Information and Regulatory Affairs on November 13, 2008.  A recent editorial in the Washington Post skewered these and other "midnight regulations," but noted that the administration's plan was to release all regulations before  November 1, 2008.  Thus, based on the Washington Post and Oregonian, maybe nothing will happen, but the LA TImes, still seems to expect the rules to be published.  

2. The courts will soon speak, so the Bush administration is thinking about whether to risk the bad precedent.

If the regulations are adopted, a legal challenge is nearly guaranteed.  That challenge will probably succeed, because the Federal Administrative Procedure Act, 5 USC §554 states as follows:

After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

5 U.S.C. §554.  The question will be whether the Bush administration allowed meaningful participation. The critics will argue that the new rule failed to comply with the "opportunity to participate" through comments and that no "consideration" was given to those comments.  In some ways, the question would be deja vu.  In Spirit of the Sage Council, et al. v. Norton, 2003 WL 22927492 (D.C. Cir. 2003), a U.S. District Court  considered whether a controversial new rule associated with the Endangered Species Act "no suprises" policy for habitat conservation plans complied with the public comment provisions of the ESA.  The Court remanded the rules based on inadequate opportunity for public comment, leading to four more years of litigation over the matter before the No Surprises and Permit Revocation rules were eventually upheld.  

My guess?  Even if the rules are adopted, and the Obama administration is given the task of defending the agency rules, the likely outcome would be a directive to the Department of Justice to seek a voluntary remand, and the regulations would then be changed or abandoned.  FULL DISCLOSURE: The author worked on the No Surprises litigation as a DOJ trial attorney.

3.  The new leadership will reverse the regulations, so the Bush administration is considering its legacy.

The Congressional Review Act, Public Law PL 104-121, allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation.  Furthermore, as recently explained by Obsidian Wings, "Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours."  The CRA, it seems, was a driving force behind the OMB desire to get all regulations out before Nov. 1, 2008.  But with that date long gone, any new regulations that come out in these final days of the Bush administration will need to survive CRA review.

BOTTOM LINE: It remains to be seen whether President Bush and Secretary Kempthorne choose to spend their final days, and reputation, pushing through a set of doomed Endangered Species Act regulations that are opposed by the people, and probably the Courts and Congress as well.

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Wolves, Altantic Sturgeon & more from @ESAlawyer (Jan-Feb 2012)

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Get your Endangered Species Act announcements sooner on Twitter @ ESAlawyer

COURT CASES & LAWYERLY LINKS

Maine: court says suit re: salmon take continues vs. dam operators bit.ly/yfUPsm

DDC court rejects special National Fire Plan Sec. 7 consultation regulations: no proof of need, current process works bit.ly/wWGZi2

Scholars: Craig, disaster, ecosystem resilience & inadequate remedy 2011 BYU L.Rev 1863; Lloyd, Citizen Suits & Defense ST038 ALI-ABA 627

2012 WL 278712: LandWatch, NPC in Ore sues FWS for approving Eugene to Veneta water supply pipeline; harm to listed plants, butterflies

ALJ says Farmton Local Plan, Volusia County, improves black bear protection consistent with law, prevents listing. 2012 WL 256233 (Fla.DOAH)

Earthjustice sues NMFS over approval of Navy sonar training in Pacific waters. b.globe.com/zb8Ppv

New lawsuit sprouting on loss of marbled murrelet habitat due to Oregon old growth logging bit.ly/zl9y3s

Court ok w/Alaskan fishing limits for Stellers sea lion bit.ly/xVtDJK PacNW chinook salmon limits coming soon bit.ly/wf9UG3

Recovery: Can ESA Go Beyond Mere Salvage? 42 Envtl. L. Rep. News & Analysis 10017; Salmon: Dam Preservation Under the ESA, 41 Envtl. L. 1363

FISH & WILDLIFE SERVICE

FWS: SuppDraft EIS for Tehachapi Upland MultiSpecies HCP 1.usa.gov/zZ4f9c The plan for condors at Tejon Ranch, CA 1.usa.gov/wdo5cB

FWS may list San Bernardino flying squirrel b/c feral cats & climate change (lost conifer & black-oak forest habitat) 1.usa.gov/zffnSS

FWS: Polar bear interim rule reissued, NEPA ongoing. No ESA take violation if complying with CITES & MMPA. 1.usa.gov/ApSydq

FWS says listing Hawaiian 'i'iwi may be warranted due to habitat loss, nonnative animals, avian disease, climate change 1.usa.gov/yaGAH9

NOAA FISHERIES/ NMFS

More Atlantic sturgeon: NOAA says Gulf of Maine DPS threatened, New York Bight & Chesapeake Bay DPSs endangered 1.usa.gov/zf9P0N

NOAA says habitat, dams, dredging, H2o quality endanger Carolina, So. Atlantic distinct population segments of sturgeon 1.usa.gov/wJFEqB

NMFS: 5-yr sei whale review underway. 1.usa.gov/xOTMr9 Consultation on incidental take for geophys survey, too. 1.usa.gov/x5k4Jo

NOAA revises leatherback sea turtle critical habitat in Pacific. 41914 sq.mi, 262 ft deep. Focus on jellyfish prey. 1.usa.gov/AqSdHW

MUSINGS & NEWS

On animal cruelty: new egg farming n.pr/xrYjtT leg hold trapping bit.ly/zH8M2W movie molds wolf image bit.ly/y7lkBQ

Choice of safety or species? Cal. Dept. Fish & Game sues U.S. Army Corps over post-Katrina tree ban on levees bit.ly/zSKqkn

Why the ESA? So we protect wildlife & learn stuff like this: fluid dynamics of shark skin denticles add thrust. bit.ly/xdNzJc

Big thought: will we find new life forms in subglacial lakes not touched in 25 million years? bit.ly/wiwq1S

Listing Mazama pocket gopher may affect urban density in WA bit.ly/wf6Hh1 Mixed review of prairie dog management bit.ly/x0mXhx

Cape Hatteras ORV rule protects seabirds bit.ly/wTGEOU La. state law limits enforcing shrimp net turtle device bit.ly/zs6D0C

FEMA wildfire clean up still protecting Houston toad bit.ly/x2oWH2 Listed CA frogs vs trout stocking for anglers bit.ly/zf46Ns

6500 acres, 100 Miss. gopher frogs, 1 crusading landowner. NoLa & AP: bit.ly/we1zVS & bit.ly/w4AFeK & bit.ly/zyVtXY

ESA in Delaware: UDel plant database (lotsa rare flora) bit.ly/zN1L7H & endangered listing for Atlantic sturgeon bit.ly/wUBi30

ESA in Okla: leaders fear impact on energy industry & say voluntary efforts should avoid listing Lesser Prairie Chicken bit.ly/A3kJ9B

Need an American Red Cross for wildlife: Mil-Wis Journal on whooping cranes & threat of TX drought on recovery effort. bit.ly/wDqpqT

Can't win in Canada: ESA requires best available info, but scientist says dorsal fin satellite tags may harm orcas. bit.ly/yWgcjD

Another ESA conflict: trail closures upset dog-owning AZ hikers; land managers say dogs scare listed bighorn sheep mydesert.co/wUJ9xS

Sierra Sun summary on grizzly bear litigation bit.ly/zCTHpA Seattle Times on leatherback critical habitat bit.ly/ycja18

POLITICS

Santorum says ESA prevents timber harvest huff.to/ykLUnP and climate change a hoax bit.ly/zEhUQX

House Nat.Res. proposes oil drilling in 3% ANWR. bit.ly/xZaoD1 Polar bear debate coming. huff.to/A8vygd & dfnd.us/xABgOg

Markey (D-Mass) dislikes significant portion of range policy, says too high a threshold for endangered species. wapo.st/wPbbwm

Revealing op-ed on lobbying to ignore science. bit.ly/Aohe4w U.S. Senator says ESA reform not (yet?) in works. bit.ly/wjwa6x

WOLVES

Chicago Op-Ed bit.ly/xAMLWF

Wisc. Op-Ed bit.ly/yHBXy2

MN rancher opinion: hunt flawed bit.ly/xxwUxj

Wolf: NM suit to stop hunt bit.ly/whAkZ5

WY wants to start hunt n.pr/wBQWNu

Mich says delist=victory bit.ly/zb0LYG


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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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Disclaimer

The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

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Twitterings

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