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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 initial review of petition says listing of American pika may be warranted

Category Federal Register
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74 Fed. Reg. 21301 / Vol. 74, No. 87 / Thursday, May 7, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the American Pika as Threatened or Endangered with Critical Habitat

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the American pika (Ochotona princeps) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial scientific or commercial information indicating that listing of the American pika may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the species, and we will issue a 12-month finding to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data regarding this species. We will make a determination on critical habitat for this species if, and when, we initiate a listing action.

SEE ALSO: New York Times article, Center for Biological Diversity news release, and prior ESA blawg.

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The American pika (photo from NPS) is a small montane mammal in the order Lagomorpha (rabbits, hares, and pikas) distributed discontinuously throughout the alpine and sub alpine areas from central British Columbia and Alberta into the Rocky Mountains of New Mexico and the Sierra Nevada of California.  A generalist herbivore that does not hibernate, the species relies on harvested stockpiles of summer vegetation stored within talus openings to persist throughout the winter months.  Temperature restrictions influence the species’ distribution because hyperthermia (heat stroke) or death can occur after brief exposures to ambient temperatures greater than 25.5 °C (77.9°F).  The petitioner states that global climate change is the gravest threat to the long-term survival of the American pika…  By conducting extensive surveys between 1994 and 1999 at historic sites known to have harbored pikas, a study of Great Basin pika populations found that 7 of 25 populations appeared to have experienced recent extirpation.

FWS declines to list American pika, but proposes experimental population of Sonoran Proghorn

Category Federal Register
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75 Fed. Reg. 6438 / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / FWS-R6-ES-2009-0021 / MO 92210-0-0010
Endangered and Threatened Wildlife and Plants; 12-month Finding on a Petition to List the American Pika as Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the American pika (Ochotona princeps) as threatened or endangered under the Endangered Species Act of 1973, as amended. After review of all available scientific and commercial information, we find that listing the American pika, at the species level or any of the five recognized subspecies (O. p. princeps, O. p. saxatilis, O. p. fenisex, O. p. schisticeps, and O. p. uinta), is not warranted at this time. However, we ask the public to submit to us any new information that becomes available concerning the threats to the American pika, the five subspecies, or its habitat at any time.
DATES: The finding announced in this document was made on February 9, 2010.

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As FWS explained in its Federal Register notice, the biology of the American pika makes the species a useful indicator of changing climatic conditions and useful to test extinction theory. The species lives in a very narrow ecological habitat (primarily talus) that is frequently fragmented or patchily distributed. They are generally poor dispersers, and thus the narrow niche may expose some populations to negative effects associated with increasing temperatures.  Photo by Sally King from NPS Bandelier National Monument.

EXCERPT: ...pikas also may exhibit considerable behavioral and physiological flexibility that may allow them to persist in environmental conditions that humans perceive to be outside of the species’ ecological niche…

We believe recent American pika range contractions that have occurred or are occurring in one locality or region should not be assumed to have occurred or be occurring in other areas. For example, American pika have been documented moving upslope in the Great Basin and Yosemite National Park; however, populations in the Sierra Nevada occur 650 m (2,132 ft) below historically known low-elevation pika sites (Millar and Westfall 2009, p. 16), and therefore have not moved upslope in this region. Given the available information we conclude that the species range has not contracted upslope on a range-wide basis in the recent past and changes in the elevation range of the species appear to be sitespecific. Persistence of lower elevation sites is likely related to local climate, habitat structure, geomorphology, and intra-talus microclimate (Millar and Westfall 2009, pp. 16-23). Based on information we have obtained from a variety of sources, it is apparent that American pika have responded to long-term climate change (10,000 to 40,000 years) as seen by the current patchy distribution of the species at generally higher elevations, particularly in the southern portion of it range. The species also appears to be responding to shorter term climatic change in the last century in some locations. Some lower elevation populations in the southern portions of the species range have been extirpated and some have shown evidence of upslope movement in response to increased temperatures. Responses of American pika to changing climatic conditions are variable as a result of
localized environmental conditions.

KEITHINKING:  Climate change presents an enormous threat to many species, and will inevitably lead to more stressed species, and thus making Endangered Species Act implementation even more troublesome.  This listing decision, however, demonstrates that the mere invocation of concerns about climate change will not automatically lead to an agency decision to list a species.  The American pika was thought to be especially susceptible to temperature variation.  Environmentalists, including the petitioners here, insisted that climate change presented an especially significant threat.  FWS declined to resort to such a simplistic cause-and-effect assumption.  Instead, FWS explained that a species fate is influenced by more than just temperature, and in the case of the pika, FWS concluded that physical habitat features and species physiology were also important factors that leaned against a listing decision:

“Increased summer temperatures as a result of climate change may have the potential to adversely affect some lower and mid-elevation pika populations of Ochotona princeps princeps, O. p. fenisex, O. p. schisticeps and O. p. saxatilis in the foreseeable future; however, this does not equate to a significant portion of the suitable habitat for any of the five subspecies or the species collectively. American pika can tolerate a wider range of temperatures and precipitation than previously thought (Millar and Westfall 2009, p. 17). The American pika has demonstrated flexibility in its behavior, such as using cooler habitat below the surface to escape hotter summer daytime temperatures, and physiology that can allow it to adapt to increasing temperature (Smith 2009, p. 4). Cooler temperatures below the talus surface can provide favorable thermal conditions for pika survival in relatively warm surface environments. Based on all these lines of evidence, we have determined that climate change is not a threat at the species or the subspecieslevel now or in the foreseeable future.”

**

FOR MORE information about the Sonoran Pronghorn...

Read More

Good news stories on ESA include whales, sea turtles, wolves, eagles, and butterflies. But for the American pika, well, not so good...

Category ESA musings
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The last few days offered a rare series of good news stories on the Endangered Species Act.  CNN reports that volunteers and retirees are watching the Florida coastline to help protect migrating endangered, but increasing, North Atlantic right whales.  The Honolulu Star-Bulletin reports that green sea turtles and hawksbills are making a comeback. Redding.com provides another anecdotal story about urban nesting bald eagles as proof of the species recovery and well-earned delisting.  An editorial from reputable scientists in the Anchorage Daily News called the ESA "a good law that works in Alaska."  An AP story in the Jamestown Sun offers a favorable perspective on wolf protections under the headline "Wolf experts dispel myths, foster understanding."   And Softpedia discussed scientific papers finding that assisted colonization may be an option to help some species, like butterlfies, avoid extinction if global warming alters their existing habitat.

Of course, other stories of mixed or bad news appeared too.  The Christian Science Monitor and Reuters reported that The alpine-dwelling American Pika could be the first species outside of Alaska listed as an endangered species because of global warming, with the Center for Biological Diversity ready to file a lawsuit if the U.S. Fish and Wildlife Service does not act soon.  The San Francisco Chronicle, citing data from the Pacific Fishery Management Council, noted that "The smallest number of Pacific Ocean salmon ever recorded swam back to the Sacramento River via San Francisco Bay last fall."     WMBB News 13 from Florida's Walton County reports that changes in the critical habitat for the flatwoods salamander could "slow traffic" by altering highway planning efforts.  The Village News reports that California politicians in Sacramento asked Governor Schwarzenegger to call for a meeting of the Endangered Species Committee, aka the "God Squad", and their letter "requests an appeal of water restrictions on California as mandated by federal court rulings to protect the Delta smelt."  

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The American pika is an alpine species known as the "rock rabbit," and depends on group communication to spot predators.  Highly sensitive to warm temperatures, the pika can’t survive in temperatures above 80 degrees.  Photo from  National Park Service.

And yes, more lawsuits were threatened, most notably by the Center for Biological Diversity, which filed a petition with FWS to protect 42 spring snail species from Nevada, Utah, and California, alleging that "unsustainable groundwater pumping threatens" these species, and as well as "rural residents and future generations."

ESA in the News: wind farms, climate change, and salmon vs. hydropower

Category ESA musings
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Wind farms and the Endangered Species Act continue on their collision course.  Horizon Wind Energy has suspended development of the Simpson Ridge wind farm in Carbon County because of Wyoming's rigid position on protecting key sage grouse habitat.  See DallasNews.com.  According to the Heartland Institute, the Animal Welfare Institute and Mountain Communities for Responsible Energy filed a federal lawsuit to require operators of a proposed West Virginia wind farm to obtain a “takings” permit under the Endangered Species Act before the Beech Ridge Energy wind farm in Greenbrier County can begin operations.  At issue is potential take of endangered Indiana bats, and as many as 113 caves exist between five and 10 miles from the site that serve as Indiana bat habitat.   “Sacrificing anything, especially endangered species, to enable one of the dumbest modern energy ideas imaginable is anathema,” said one environmentalist quoted by The Heartland Institute (and showing remarkable deafness to the clarion call of global climate change.)  

Speaking of climate change, NPR recently reported that the American pika could become the first animal in the continental U.S. listed under the Endangered Species Act because of climate change.  See prior ESA blawg discussing Federal Register announcement.  ESA blawg also anticipated that the debate over newly confirmed Justice Sotomayor  would include the Endangered Species Act, and indeed, cautious U.S. Senators voiced concerns about how a future Justice Sotomayor might vote on this issues.  As reported by the New York Times, Sen. Dianne Feinstein (D-Calif.) asked about Judge Sotomayor’s views of the Commerce Clause, noting that "One of the main concerns is that he court'sinterpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act or anything that we might even do in cap and trade."  Judge Sotomayor punted the question, of course.  "There are cases pending before the courts raising those arguments."

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In another clash of species vs. "greener" energy, NOAA and the FWS will soon be responding one of Judge Redden's deadlines in the ongoing litigation over the Federal Columbia River Power System.  See prior ESA blawg.  On the opinion pages of OregonLive.com, Charles Wilkinson, a well-known environmental law professor, notes that the upcoming federal decision on how to manage the Snake River dam system and its effects on salmonid species poses an important test for the Obama Administration.  His proposed solution is to tear down the dams, because "...times have changed in the Northwest. Large dams that no longer make sense are being removed on the Elwha, White Salmon and Klamath Rivers. The lower Snake dams deserve the same because they impose such high public costs and collide so directly with the ESA. They produce only a few percentage points of the Columbia-Snake system's hydropower, and there is ample analysis that it can be affordably replaced from noncarbon sources. And salmon mean jobs and business."  Such a decision might satisfy the folks from Save Our Wild Salmon who held protests in D.C. (and who blogged about it with the photo above), but whatever decision the Administration makes on the Snake River and salmon, more litigation is a guarantee.

And, sadly, just like the salmon litigation, the Endangered Species Act law enforcement efforts never end either.  A federal grand jury indicted a 78-year-old Kauai man in the shooting death of an endangered Hawaiian monk seal in May.  See AP.  An Oregon local TV news station KGW reports that two men accused of shooting one of Washington's few grizzly bears are expected to appear in federal court next week, facing felony violations of the Endangered Species Act.    CapeLinks reported on an ongoing enforcement case over humpback whale harassment.  And an FWS investigation is underway near Naples, Florida, where a landowner has been accused of large scale logging and improving of pasture at the HHH Ranch.  The land serves as habitat for endangered species, including the Florida panther.  According to NaplesNews.com, representatives of the ranch owners said the Fish and Wildlife Service agreed that the work would not violate the Endangered Species Act as long as crews protected red-cockaded woodpeckers and wood storks and improved habitat for the Florida panther.

Finally, the Florida news round-up.  NOAA is expected to make a decision soon on whether longline fishing for shallow water grouper can continue without threatening loggerhead sea turtles. See Sarasota Herald Tribune.  The Atlanta Journal Constitution, reporting on the ongoing Florida vs. Georgia struggle over Lake Lanier water, quotes U.S. Rep. John Linder (R-GA) to say that "the Endangered Species Act has become a blunt weapon," and that amending the statute "has to be brought to the table."  The U.S. Navy's plans for expanding sonar testing off-shore from their Jacksonville, Florida bases has local environmentalists concerned about impacts on right whales.  See The Post and Courier.  And in a “how weird is that” moment, examiner.com reported on a dolphin frolicking in the water near Marco, Island, Florida, that leaped into a 22-foot boat.  



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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