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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.

Judge Redden outlines tentative position on 2008 biop in dispute over Columbia and Snake River dam operations, and impacts on salmonid species

Category ESA musings
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It's not a court opinion - yet - but Judge Redden made his position clear in a May 18, 2009 letter to the parties in National Wildlife Federation v. NMFS, CV 01-640 RE, the long-running litigation over the Federal Columbia River Power System and salmonid species.  While the 2008 biological opinion relied on a conclusion that the new biological opinion contained substantial improvements, and that species were trending toward recovery, Judge Redden disagreed: "Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation, the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."  In fact, the Judge went on to explain that (1) the Feds improperly rely on speculative, uncertain, and unidentified "habitat improvement actions," (2) Fed scientists have concluded that many of the measures are unsupported by scientific literature; (3) the Feds         assign implausible and arbitrary numerical survival improvements to the tributary habitat actions, (4) the BiOp does not identify any performance standards; (5) the BiOp does not, articulate a rational contingency plan; and (6) the Feds insufficiently explained their proposed operations.  See news coverage in LA Times blog, The Idaho Statesman, and The Seattle Times.  According to the Public News Service, local environmental groups were pleased.  But for a counterpoint to the optimism,  visit the editorial commentary in The Wenatchee World, criticizing the never ending salmon litigation, and stating that "The biggest salmon runs in 70 years came in this decade. Billions were spent to improve fish passage at dams, reaching the point where salmon survival equals or surpasses undammed rivers. For every dollar spent on electricity, 20 percent goes to salmon. Most salmon runs are gaining strength. They are not at the brink."

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The fish ladder and Visitor Center at Bonneville Dam, photo from University of Washington

KEITHINKING: The opinion represents a setback for federal biologists, but solutions will never be easy to come in this struggle between carbon-friendly hydroelectric power and threatened and endangered salmonid species.  The letter also represents an unusual acknowledgement of politics, and the realities of a change in presidential administrations.  In a letter last week to Judge Redden, the Justice Department said top officials in the Obama administration want a delay of up to two months to "more fully understand all aspects" of the plan. See Capital Press.  Judge Redden's letter represents a prodding response.  "I applaud the new administration's efforts to understand, and become more fully engaged in the complex issues presented by this case."  In other words, rather than issuing an opinion, Judge Redden gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course.

Obama Administration announces "insurance policy for the fish" in FCRPS salmonid litigation

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In May 2009, U.S. District Court Judge James A. Redden appeared ready to rule against the Federal Defendants in the ongoing litigation over the Federal Columbia River Power System (FCRPS), and its impacts upon salmonid species.  As explained in a prior ESA blawg, the Judge's May 2009 letter to the parties represented an unusual acknowledgement of political reality, and "gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course" that was reflected in the 2008 Biological Opinion (BiOp) -- the latest in a series of challenged agency actions.  The new administration seized the opportunity.  The new political leadership from the federal agencies, as well as the White House Council on Environmental Quality, reviewed the existing science, BiOp and legal issues, conducted site visits, held many internal briefings, and even listened to the viewpoints of the parties to this litigation.  The result was yesterday's announcement of a new Adaptive Management Implementation Plan (AMIP).  See salmonrecovery.gov.  As explained in a recent Court filing, using the reasonable and prudent alternative (RPA) provisions of the BiOp, the AMIP:
  • Immediately accelerates and enhances particular RPA actions;
  • Enhances research, monitoring and evaluation (“RM&E”) to increase and improve the data and analytic tools available to gauge salmon and steelhead status and to inform responses, if the fish are declining;
  • Establishes new biological triggers that, when exceeded, will activate near- and long-term responses to address significant fish declines;
  • Identifies and establishes the process for implementing those near- and long-term responses if a trigger is exceeded; and
  • Includes a wide range of specific rapid response and longer-term contingency actions, including the potential for John Day drawdown and lower Snake River dam breaching.
Notably, if the significant decline triggers are exceeded, the Federal agencies could implement a number of "rapid response actions" to reduce the take of salmonid species, including predation management to reduce impacts from sea lions, avian predation, and sport-fishing, increased restrictions on harvest from river and ocean fisheries, or changes to hatchery management.   For an overview of the AMIP, click here.

Formally responding to the letter from Judge Redden, the U.S. Department of Justice also filed a document resembling a traditional summary judgment brief, explaining the AMIP in detail, and asking the Court to grant summary judgment to the Federal Defendants:
The Administration appreciates the Court’s patience in allowing an in-depth review of the FCRPS BiOp to occur. After this review, the course is clear. The FCRPS BiOp as implemented through the AMIP meets the requirements of the ESA, and is a significant step forward for listed salmon and steelhead in the Columbia and Snake River basins. Our focus for the future should be on implementing actions to benefit listed salmon and steelhead through the BiOp's collaborative and adaptive management processes, instead of diverting limited resources to perpetuate the cycle of litigation that has plagued this region for over 15 years. It is time to put the litigation aside and allow the States, Tribes, and this new Administration to work for salmon and steelhead. The Court should grant Federal Defendants’ motion for summary judgment.

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Photo of orca eating salmon from www.orcanetwork.org

KEITHINKING: While the blogosphere seems to be digesting the announcement, news reports suggest that the litigation is far from over.  Generally supportive of the proposal, the Editorial Board at Oregon's The Stump says its time to get the issue out of the courtroom, and the lead to the AP wire story calls the approach "a tougher conservation plan for the Pacific Northwest that includes monitoring for climate change and possible dam removal."  However, in a potential kiss-of-death for the environmentally-minded, The New York Times says that "Obama follows Bush" and that the AMIP "affirmed basic elements of a recovery plan set forth last year by the Bush administration."  Echoing the Gray Lady,the The Los Angeles Times, reports that "some conservationists aren't satisfied."  While the Northwest River Partners, a voice for many business-oriented perspectives, called the plan expensive, but actually beneficial to the fish, EarthJustice seems ready to call the AMIP a complete failure.  OregonLive.com has returned to "tear down the dams" editorials, but in fact, the AMIP actually acknowledges that breaching the dams could be a long-term option, though certainly NOT a preferred option:
One Long-term Contingency Action in the event there is a significant decline in the status of a Snake River species, is a science driven study of breaching one or more of the lower Snake River dams. This is considered acontingency of last resort and would be recommended to Congress only when the best scientific information available indicates dam breaching would be effective and is necessary to avoid jeopardizing the continued existence of the affected Snake River species, taking into account the short-term and long-term impacts of such action. Additionally, a study of lower Snake River dam breaching will also have to consider the federal government’s Treaty and Trust responsibilities to Indian Tribes, and compliance with other statutory and regulatory requirements. It is reasonable to study breaching of lower Snake River dam(s) as a contingency of last resort because the status of the Snake River species is improving and the 2008 BiOp analysis concluded that breaching is not necessary to avoid jeopardy. In addition, breaching lower Snake River dams would have significant effects on local communities, the broader region and the environment. It would require a major investment of resources and time. Therefore, any decision to seek the requisite congressional authority must be driven by the “best available scientific information.

MORE KEITHINKING: A vocal minority of environmental groups will remain highly unsatisfied, rejecting this (and any other) form of adaptive management approach, but Judge Redden will probably be inclined to give the administration time (but not a whole lot of time) to prove itself.  By the way, in a separate but related and timely story, Discovery News reported today (citing  the latest Royal Society Biology Letters) that killer whale populations die without king (chinook) salmon.  

These issues are never, ever easy.  (BTW, check out this YouTube video of an orca stealing a fisherman's salmon!)

ESA in the news: exemptions, editorials, entrees and more.

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The ESA litigation circus continues.  Judge Redden is hearing yet another case in Oregon regarding the tension between migrating salmon and the Federal Columbia River Power System.  See The Seattle Times.  The Center for Biological Diversity notified the federal government of its intentions to sue over two species, the desert tortoise, and the the Moapa dace (a finger-length fish only found at the headwaters of the Muddy River north of Las Vegas).  See Las Vegas Review-Journal.  Topping off the litigation news, animal rights activists sued Ringling Bros., in a case heading to trial this week.  See Wall Street Journal.  

Lawsuits like these may have led some California lawmakers to declare the ESA "horrendous" and "economic terrorism," further causing them to seek exemptions to address the "fish against fish" problems of water management in the Sacramento Delta.  See The Sacramento Bee, Indybay.org and The Record.net  Similar legislative protests are heard from lawmakers in Wyoming upset over the potential ESA protections for prairie dogs.  See The Gillette News-Record.  

Unlike the lawmakers' narrow proposals, George Will's latest editorial does not stop with a mere local exemption, instead, he declares the Endangered Species Act contrary to Darwinian philosophy.  See Washington Post  Mr. Will neglects to mention that humanity's excesses have played an enormous role in species decline, but that humble recognition led NOAA to consider increased restrictions on the grouper fishery to protect sea turtles.  See St. Pete Times.  The Anchorage Daily News even concluded that "80 years ago humans unintentionally removed the wood bison from nature. Now it is our responsibility to put them back."  

By the way, if you are responsible for cooking (and catching) dinner, be sure to check the laws.  A California homeless man went to jail for eating a steelhead trout, see SanLuisObispo.com, and two Bahamian tourists earned the same fate for posting photos of an iguana dinner on Facebook. See Gizmodo

Stimulus funds save panthers from palm trees, Judge Redden pleased with progress on salmon species management, but some environmentalists still concerned.

Category ESA musings Florida
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Panthers vs. Palm Trees?  Yup.  And the panther won -- thanks to stimulus funds! -- as explained by Mother Nature Network, relying on information from the U.S. Fish & Wildlife Service: "If you like your conservation efforts served with a nice dusting of irony, consider what’s happening at the Florida Panther National Wildlife Refuge near Naples, Fla. Workers there are about to start tearing down dense stands of the official Florida state tree, the cabbage palm, in order to benefit the official state animal, the endangered Florida panther, that lives in the refuge...  the fact is that the cabbage palms have grown so thick in places on the refuge that they are crowding out other plants that are necessary food for deer. That means the deer move on to find better feeding areas, and the panthers are deprived of the deer they need to prey on.  So the U.S. Fish and Wildlife Service, which manages the refuge, hired Wildland Services, Inc., of Moore Haven, Fla., to cut down the invasive cabbage palms on more than 1,700 acres inside the refuge. The $171,000 contract is being funded by money from the American Recovery and Reinvestment Act, popularly known as stimulus funds."  (Hat tip to Phil Kloer, USFWS, photo below from EvergladesHummerAdventures.com)  See also, Cape Coral Daily Breeze.

Despite the use of stimulus funds for such environmental projects, eco-advocates from WildEarth Guardians and the Center for Biological Diversity remain unhappy with the Obama Administration, the New York Times reports.  "There is no longer a clear ideological opposition to endangered species, but they have not exactly made it their priority, either," the Gray Lady quotes Noah Greenwald, CBD spokesperson, to say of the Obama administration.  For a similar perspective, see the Tallahassee Environmental News Examiner.  The slow listing decisions are not the only ESA-related (in)actions upsetting the green-minded.   Although recently rejected by a federal judge, see AP, efforts by the Federal government to delist the grizzly bear remain a sources of significant environmentalist angst.  See criticisms in Legal Planet, but also note the support previously offered by National Wildlife Federation

Then again, perhaps the critics should consider themselves fortunate to have any White House support at all.  In contrast, the Massachusetts (!) legislature is debating a bill to dramatically reduce project review or permit requirements pursuant to the Commonwealth's Natural Heritage and Endangered Species Program.  See the Valley Advocate.  

But when it comes to executive branch efforts related to endangered and threatened salmonid species in the Pacific Northwest, at least one rather important person -- U.S. District Court Judge James Redden -- is pleased with the administration.  At a hearing on Monday discussing operation of the Federal Columbia River Power System, the Judge told Jane Lubchenco, administrator of the National Oceanic and Atmospheric Administration, "I think you've done a good job."  See story in The Idaho Statesman, official statement by Ms. Lubchenco, and prior ESA blawg discussing the Federal government's filings.  

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Scientists are becoming more adept at counting the secretive Florida panther, see wptv.com, although there are four fewer of the big cat due to vehicle collisions in October and November.  Indeed, vehicle collisions are an enormous problem for the species.  Despite a population estimate of less than 100 panthers, 12 have been killed in 2009 alone.

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

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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."

SaveOurWildSalmon.jpg

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.  



Dollars, sense, and the Endangered Species Act

Category ESA musings Endangered Species Act
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Yes, its an important and controversial law.  But Noah Greenwald says we have "60 days to save the ESA" on The Stump, citing the March 11 passage of HR 1105 Omnibus Appropriations Bill giving Secretary of Interior Ken Salazar 60-days to permanently revoke these regulations.  Hyperbole?  The press release from the House Republicans on the Committee on Natural Resources was equally remarkable.  Despite the widespread characterization of these last-minute ESA changes as Bush administration "midnight regulations," see Washington Post, and despite the huge volumes of public comments that were largely ignored, see L.A. Times, some congressman suggested that the law would "allow the Obama Administration to change rules without any public notice or public comment period, and threatens efforts to create new jobs in an already strapped economy."  

Polarizing policy considerations aside, some people are starting to ask questions about the dollars associated with the Endangered Species Act.  The Heritage Foundation recently pondered the history of the ESA under the heading of More Economic Harm Than Environmental Good, but when Carol Vinzant, in WalletPop, asked how much does the endangered species act cost, she reached a different conclusion, noting that "the 2009 budget for the Endangered Species Act was $146 billion. Which would you rather spend the money on: all the endangered species in the country, or just 1/100th of the $163 billion we've invested in AIG?"  Escaping conventional thinking, Gary Francione even ridiculed citizen suits on Opposing Views, concluding that the dollars spent on litigation opposing circus elephants would be better spent "decreasing the demand for such spectacles through creative, nonviolent abolitionist education."

Speaking of cost-benefit analysis: in the U.S. District Court in Oregon, Judge Redden continues to ask tough questions about whether hydroelectric power generating dams, and endangered salmon populations, really can coexist.  See, 2017 is just around the corner, by Paul Develder on High Country News.  Litigants in the ongoing Arizona case involving jaguars and the completed D.C. case involving Ringling Bros. elephants, however, certainly expect rulings in their cases much sooner than 2017.  And thanks to a burst of complaints, and notices of intent to sue, other U.S. District Court judges can soon look forward to lawsuits related to prairie dogs, , sea turtles, northern spotted owls, and the amargosa toad.

ESA in the news: turtles, smelt, lynx, wolves, salmonids and... walrus?

Category Endangered Species Act ESA musings
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It was once a George Carlin Joke: what do you do if you see an endangered animal eating an endangered plant?  But the Center for Biological Diversity doesn't share the laugh, and has filed a petition to list the western gull-billed tern, with one of its two U.S. breeding sites at San Diego Bay National Wildlife Refuge, because the species is "threatened by a Fish and Wildlife Service plan to reduce its population by destroying eggs. "  As the CBD press release explains: "The control effort is intended to protect two other endangered seabirds: the western snowy plover and the California least tern."  

FWS won't be alone as it grapples with the unanswerable questions, because federal judges are presiding over new incarnations of lawsuits that have evaded resolution for decades.  An AP story appearing in the MercuryNews.com notes that Oceana, the Center for Biological Diversity and the Sea Turtle Restoration Project filed a complaint in San Francisco asking that populations of loggerheads in the Pacific and Atlantic Oceans be upgraded from threatened to endangered.  Upstream, water users and property rights advocates in the Sacramento Delta -- probably tired of intervening in environmentalist-initiated litigation -- have filed lawsuits of their own.  A recent PRnewswire report mentioned a water users lawsuit arguing that decisions to manage water for the delta smelt failed to comply with the best available science, and the Fresno Bee discussed the Pacific Legal Foundation's claim that the protection of an endangered delta smelt is an unconstitutional violation of the commerce clause.  The lynx is back in court too, with conservationists seeking to expand the species critical habitat, but this time, according to the New York Times, "the suit is thought to be the first legal challenge of a habitat designation brought on the grounds of climate change." See also, the Summit Daily News.  The LA Times reports on the endless gray wolf litigation related to the listing, delisting, and relisting of the species.  

Perhaps most notably, in response to Judge Redden's recent letter to the Obama Administration (see prior ESA blawg) discussing the Federal Columbia River Power System litigation, columbian.com notes that "Idaho’s two U.S. senators are both calling for a regional dialogue in an effort to forestall a judicial takeover of the river system," while Seattle's crosscut.com thinks about a future involving tearing down dams.

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While sea turtles, wolves, lynx, and salmon may be familiar subjects of ESA litigation, CBD may soon add the walrus (photo above from CITES.org) to the list of species debated in the courts.  Based on a recent court-approved settlement, the Fish and Wildlife Service must make an initial finding on the Center’s petition requesting protection of the walrus by September 10, 2009, with a subsequent decision as to whether the species should be protected the following year.  And CBD continues to break new ground with its ESA-based protest of a water-right application that would be used to facilitate the development of a nuclear power plant at Green River, Utah.  But what the new administration will do is anybody's guess.  David Suzuki, writing for Canada.com, thinks that the Obama Administration's "support for the Endangered Species Act signals a 180-degree turn for the U.S. government.  Then again, AmericanThinker.com gave "one and a half" cheers to the President and Secretary Salazar for agreeing with the Bush Administration on the polar bear 4(d) rules, but rejecting the previously-adopted regulations amending the ESA consultation process.

For a few other noteworthy ESA-related stories, visit:
  • Boston Herald reports about the U.S. Department of Justice case against a Massachusetts man who allegedly engaged in illegal importation and illegal trafficking of sperm whale teeth; and
  • The Orlando Business Journal story on The Florida Homebuilders Association's petition to downgrade the status of the endangered wood stork — prevalent in Central and South Florida — to “threatened.”


ESA in the news: brown pelicans delisted, and other hurts-so-good news

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Secretary of Interior Ken Salazar and Sen. Mary Landrieu of Louisiana are celebrating the delisting of the brown pelican, a bird species with a global population estimate of more than 620,000 birds. See Reuters.  Is it all because of the ESA?  Probably not.  The banning of DDT probably had far more to do with the bird's recovery.  See Investigate West, and prior ESA blawg on the delisting of the bald eagle.   Nevertheless, facts are facts, and recovery is recovery.  According to FWS draft delisting rule, "numbers of successful nests and fledglings produced annually since 1993 do indicate continued nesting and successful fledging of young sufficient to sustain a viable population in Louisiana."  Elsewhere along the U.S. Gulf Coast, FWS says that "brown pelican populations, while experiencing some periodic or local declines, have increased dramatically from a point of near disappearance in the 1960s and 70s."  

Somehow, when it comes to the Endangered Species Act, good news seems to leave people feeling bad.  Not everyone found cause for celebration with the pelican announcement.  OCweekly, also quoting the Center for Biological Diversity, expressed fears that climate change will continue to threaten the pelicans.  Others didn't stop with criticisms of the pelican delisting. Mongabay reports that "Obama slower than Bush in protecting America's endangered species." In a press release, Noah Greenwald, endangered species director at the Center for Biological Diversity, also said that “protection of only two species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.”  Mongabay even added a supplemental note bemoaning other species delistings.  But in contrast, Legal Planet noted that "the success of the ESA should never be measured by the number of species delisted."  

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As a result of the ban on the use of DDT in the United States, as well as complementary conservation efforts, the species has made a strong comeback and, in view of its improved status, has been removed from the list of threatened and endangered species throughout its range. The U.S. Fish and Wildlife Service now estimates the global population of brown pelicans at 650,000 individuals.  Photo and caption from FWS fact sheet.

Although the brown pelican delisting represents one less species facing extinction, environmental groups have filed numerous petitions in the past few weeks to compel increased numbers of ESA-protected species.  For example, NOAA, Seacoast Online and the Boston Herald say that the Atlantic Wolffish is ugly, tasty, but not endangered, but the Conservation Law Foundation still disagrees, fearing the consequences of excessive fishing, so legal action may be coming soon.  See CLF Petition.    Oceana is also pushing for more fishery regulation, and launched a new campaign to "get sea turtles off the hook" by regulating fishing gear.  See Ecorazzi.   And the Center for Biological Diversity has petitioned the National Marine Fisheries Service to protect 83 imperiled coral species in U.S. waters under the federal Endangered Species Act due to the threats of climate change and ocean warming and acidification.  See LA Times and CBD Petition.

Of course, the Federal Government already has plenty of work to do, including the U.S. Department of Justice's continuing efforts to defend the Fish & Wildlife Service's established protections for the gray wolf and polar bear.  Wyoming officials are still torqued over FWS's rejection of its wolf management plan and consequential decision to leave the species populations listed in their state.  See Salt Lake Tribune.  Alaskan officials fear that the listing of the polar bear as a threatened species will impair development.  Alaska Attorney General Dan Sullivan warned that the listing could turn Alaska into “the world’s largest zoo," as quoted in the New York Times, and Governor Parnell told Radio Kenai that his State will continue to oppose the listing.  Other states are less hostile to the ESA.  Kentucky officials were cautious about the naming of the Kentucky glade cress and rabbitsfoot mussel as a formal candidate for listing, see Louisville Courier Journal, whereas officials in Hawaii seem to have embraced the benefits of the ESA, and actively encouraged Congress and President Obama to approve $3 million in appropriations dedicated to protecting listed bird species in Hawaii.  See American Bird Conservancy announcement.    

And, as usual, new ESA-related controversies are brewing all across the nation.  NOAA's top-ranking official, Jane Lubchenco, announced that she will attend the Nov. 23 U.S. District court hearing in Portland, Oregon, after which Judge Redden is expected to reach decision in the long-running litigation over how to run hydroelectric dams while still protecting salmonids in the Columbia Basin.  See Seattle Times.   NOAA is also evaluating whether to downlist the humpback whale, because surveys estimate population growth from fewer than 5,000 in the 1960s to 60,000 or more today. See Wall Street Journal.   FWS can also expect its share of work in the coming months. Bull trout populations have fallen sharply in Montana, says the Flathead Beacon.    The San Francisco Recreation and Park Department elected to keep part, but not all, of the Sharp Park Golf Course, a prime piece of public recreation real estate located on a coastal watershed that also serves as a habitat for the endangered San Francisco garter snake.  See San Francisco Chronicle.   Bullfrog removal, needed to save the California red-legged frog, is spawning local opposition, reports petaluma360.com.  And in Pima County, Arizona, the proposed Rosemont copper mine -- for which a biological opinion is underway -- is spawning quite a negative public reaction, leading to an early op-ed by the National Mining Association. See Arizona Star.  



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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