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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.

The lighter side of the ESA

Category ESA musings About ESAblawg
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Introducing another feature on ESA blawg... humor.  Let's face it.  The ESA is a pretty dark topic.  Species on the brink of extinction, and periodic bad news.  So, whenever the darkness gets to you, consider embracing the ultimate human coping mechanism, and check out the cartoons and other links TBD in the lower right side column.  When you do, be sure to visit the University of Iowa Digital Library site on the editorial cartoons of pulitzer prize winner J.N. "Ding" Darling, an accomplished public servant and wildlife conservationist honored by a National Wildlife Refuge in Florida bearing his name.  See also prior ESA blawg (April 2, 2008).  Ding's cartoons are reproduced courtesy of the Ding Darling Wildlife Society.

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"We do hope the wild flowers appreciate how ardently we love them."  Copyright owned by the Ding Darling Wildlife Society, and reproduced with permission from the University of Iowa Digital Library.


Comprehensive conservation plan under review at Ding Darling National Wildlife Refuge

Category Federal Register Florida
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73 Fed. Reg. 17992and 17993 (Wednesday, April 2, 2008)

FWS’ SUMMARY: We, the U.S. Fish and Wildlife Service (Service), intend to prepare a  comprehensive conservation plan (CCP) and associated National Environmental Policy Act (NEPA) documents for J.N. ‘Ding’ Darling National Wildlife Refuge… and the Pine Island, Caloosahatchee, Matlacha Pass, and Island Bay National Wildlife Refuges.  To ensure consideration, we must receive your written comments by May 19, 2008.

ADDITIONAL EXCERPTS: “J.N. ‘Ding’ Darling National Wildlife Refuge was originally established as the Sanibel National Wildlife Refuge in 1945. The refuge was originally established ‘for use as an inviolate sanctuary, or for any other management purposes, for migratory birds, and suitable for incidental fish and wildlife-oriented recreational development, the protection of natural resources, and the conservation of threatened and endangered species.’ In 1967, the refuge was renamed in honor of Jay Norwood ‘Ding’ Darling and now consists of 6,300 acres of mangrove estuaries, freshwater spartina wetlands, and tropical hardwood hammocks”…  Each of the other refuges “is administered as part of the J.N. ‘Ding’ Darling National Wildlife Refuge Complex. The purposes of each refuge are to protect and provide suitable habitat for threatened and endangered species, and to provide habitat for a wide diversity of shorebirds, wading birds, waterfowl, raptors, and neotropical migratory birds.”

OTHER RESOURCES:
COMMENTARY: Ding Darling was a well-known political cartoonist and twice-winner of the Pulitzer Prize (1924 and 1942), with a career legacy including: Chief, Bureau of Biological Survey (forerunner of U.S. Fish and Wildlife Service), 1934- 1935; Father of the Federal Duck Stamp; and First President, General Wildlife Federation (forerunner of National Wildlife Federation), 1936-1939.  This CCP effort at his namesake refuge, like all other CCP efforts, has potential implications for endangered and threatened species management.

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Cartoon reproduced courtesy of the "Ding" Darling Wildlife Society.  Editorial  cartoons of J.N. "Ding" Darling"  are available from the Iowa Digital Library  (use with permission)


Comment period ending, but controversy over the Ozark chinquapin just beginning?

Category ESA musings
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A few weeks ago, FWS published its notice that it was considering the listing of the Ozark chinquapin.  See ESA blawg.  The deadline for commentary just expired, but the controversy over the Ozark chinquapin, Castanea pumila var. ozarkensis, may have just begun.  Robert Barnes, who regularly works on the protection and restoration of the tree, see OzarkChinquapinFoundation.com, offered his insights to ESA blawg: "There is so much misinformation, outright lies and deliberate exagerations about Castanea Ozarkensis that It would be extremely difficult to catalogue them all. I spend a great deal of my time trying to correct some of the misinformation. It does little good as more is constantly coming online. I greatly appreciate everyone's efforts in saving and preserving endangered species. The Ozark Chinquapin, however, is not endangered." He said.

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The Ozark chinquapin has been considered by some taxonomists to be a separate species in the genus, Castanea, and has been named Castanea ozarkensis, but other classifiers have named it Castanea pumila var. ozarkensis --a variety of the Allegheny chinquapin.  It is a chinquapin since it produces only one seed per bur, not three as in the American chestnut, but its leaves resemble the American chestnut and it used to attain tree dimensions before the blight.  The photo above, from volstate.edu, shows Robert Barnes beside some of his chinquapin seedlings which he uses as rootstocks for scions from superior Ozark chinquapin trees.

Elaborating on his conclusion, Mr. Barnes made four points: "(1) Castanea Ozarkensis is in NO danger of extinction, period. (2) The tree routinely produces seed whether blighted or not. (3) The blight does not kill the Ozark Chinquapin.  And, finally, (4) The range of the Ozark Chinquapin is at the present time expanding." In support of these statements, he said that the current range of the species includes Southwest Missouri, Eastern Oklahoma, and Arkansas, with hundreds of thousands of trees.  See maps from eFlores.org and volstate.edu.  Significantly, Mr. Barnes explained that he has personally been involved with curing chestnut blight in these trees, citing an article from Science Direct by Ping Ding et. al, "Transmission of Cryphonectria hypovirus to protect chestnut trees from chestnut blight disease," Biological Control, Volume 40, Issue 1, January 2007, Pages 9-14.  Ultimately, Mr. Barnes viewed the entire dialogue as misleading, drawing parallels to the "WMD and Iraq scenario."

KEITHINKING: Mr. Barnes may be colorful, but he makes a noteworthy point.  A tree that is producing fruits, and showing resistance to blight, with prospective treatment techniques, may not rise to the level of likely to become an endangered species -- in danger of extinction -- in the foreseeable future.  

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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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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