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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.

NOAA considering listing of ribbon seal, and initiating status reviews of other Alaskan seal species

Category Federal Register
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73 Fed. Reg. 16617 (Friday, March 28, 2008)(Department of Commerce; National Oceanic and Atmospheric Administration; Endangered and Threatened Wildlife; Notice of a 90–day petition finding; request for information; and initiation of status reviews of ribbon, bearded, ringed, and spotted seals)

SUMMARY: We (NMFS) announce a 90–day finding on a petition to list the ribbon seal (Histriophoca fasciata) as a threatened or endangered species under the Endangered Species Act (ESA). We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Therefore, we initiate a status review of the ribbon seal to determine if listing under the ESA is warranted. Concurrently, we also initiate a status review of the other ice seal species: bearded (Erignathus barbatus), ringed (Phoca fasciata), and spotted (Phoca largha). To ensure these status reviews are comprehensive, we solicit scientific and commercial information regarding all of these ice seal species.

RibbonSeal.gif
Photo of ribbon seal , with "ribbons"  clearly visible in contrast to the ice, from NOAA National Marine Mammal Laboratory
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FWS proposes critical habitat revisions and public hearing for Alabama sturgeon; NOAA declines petition to list the ribbon seal

Category Federal Register
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73 Fed. Reg. 79770 / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Proposed Rules / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alabama Sturgeon (Scaphirhyncus suttkusi); Revised proposed rule; reopening of comment period, notice of availability of draft economic analysis, announcement of public hearing, and amended required determinations.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period and the scheduling of a public hearing on the proposed revised designation of critical habitat for the Alabama sturgeon (Scaphirhyncus suttkusi) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability for public comment of a draft economic analysis (DEA) and an amended required determinations section of the proposal. We also seek comment on our proposal to change the first primary constituent element (PCE) from its original description because we have determined that the original wording failed to indicate that the flow needs of the species are relative to the season of the year. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated DEA, and the amended required determinations section. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule. DATES: Written Comments: We will consider comments received on or before January 29, 2009. Public Hearings: We announce a public hearing to be held on January 28, 2009, at the Nettles Auditorium at Alabama Southern Community College, 2800 South Alabama Avenue, Monroeville, AL 36460.

* * *

73 Fed. Reg. 79822 / Vol. 73, No. 250 / Tuesday, December 30, 2008 / DEPARTMENT OF COMMERCE /  National Oceanic and Atmospheric Administration / Endangered and Threatened Wildlife; Notice of 12–Month Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species; Status review; notice of finding.

SUMMARY: We, NMFS, announce a 12– month finding on a petition to list the ribbon seal (Histriophoca fasciata) as a threatened or endangered species under the Endangered Species Act of 1973 as amended (ESA). After a formal review of the best available scientific and commercial information, we find that listing of the ribbon seal is not warranted at this time. Although the ribbon seal population abundance is likely to decline gradually for the foreseeable future, primarily from slight but chronic impacts on reproduction and survival caused by reduced frequency of years with sea ice of suitable extent, quality, and duration of persistence, it is not in danger of extinction or likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. DATES: The finding announced in this notice was made on December 30, 2008.

RibbonSealWiki.jpg
The ribbon seal is a strikingly marked member of the family Phocidae that primarily inhabits the Sea of Okhotsk, and the Bering and Chukchi Seas. This species is strongly associated with the sea ice during its whelping, mating, and pelage molt periods, from mid March through June. Most of the rest of the year is spent at sea; the species is rarely observed on land. The rates of survival and reproduction are not well known, but ribbon seals can live 20 to 30 years.  Caption from NOAA Federal Register notice, photo from wikipedia.  See also prior ESA blawg.

EXCERPT: In contrast to harp seals (Pagophilus groenlandicus), which are their closest relatives, ribbon seals are much less closely tied to traditional geographic locations for important life history functions such as whelping and molting. In years of low ice it is likely that ribbon seals will adjust, at least in part, by shifting their breeding locations in response to the position of the ice edge, as they have likely done in the past in response to interannual variability...  There has not been, however, any study that would verify whether vital rates of reproduction or survival have been affected by these interannual variations in ice extent and breeding. Whelping, nursing of pups, and maturation of weaned pups could conceivably be impacted in years when the ice does not extend as far south as it has typically in the past, because the breeding areas would be farther from the continental shelf break, a zone that seems to be a preferred foraging area during spring. If these conditions occur more frequently, as is anticipated from projections of future climate and sea ice conditions, reproduction and survival of young could be impacted.

ESA caselaw from the District Courts: panthers, whales, and ribbon seals.

Category Case law
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CONSERVANCY OF SOUTHWEST FLORIDA v. UNITED STATES FISH AND WILDLIFE SERVICE, No. 2:10-cv-106-FtM-SPC, 2010 WL 5140729 (M.D. Fla. Nov. 12, 2010)(Report and Recommendation by Sheri Polster Chappell, United States Magistrate Judge.

BACKGROUND: Plaintiffs have filed this lawsuit under the Endangered Species Act (ESA), 16 U.S.C. 1531, et seq. and the Administrative Procedures Act (APA), 5 U.S.C. 702, et seq., challenging the Defendant Fish and Wildlife Service's (Service) denials of Plaintiffs' petitions to designate critical habitat for the Florida Panther (Puma concolor coryi). The Defendants move to dismiss, arguing that the decision whether to designate critical habitat for the Florida Panther is committed to agency discretion by law and therefore this Court lacks subject-matter jurisdiction to review the denial of Plaintiffs' petitions. Defendants assert that dismissal is appropriate under Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted...  Plaintiffs allege that the Florida Panther is teetering on the brink of extinction and critical habitat is crucial to their survival as a species. Thus, in January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA, Service regulations, and the APA, asking the agency to establish critical habitat for the Florida Panther...  On February 11, 2010, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, in their entirety in three separate letters, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it is in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” See Def. Ex. 1 at 3. The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations. Id.

PantherSFWMDfotoFlexer.jpg
The Florida Panther has been listed as an endangered species since 1967. 32 Fed.Reg. 4,001 (Mar. 11, 1967). The United States Fish and Wildlife Service has never designated critical habitat for the Florida Panther, because the 1973 Endangered Species Act did not require that critical habitat be designated at the time of listing of the species on the endangered list. The current form of the Act requires the Secretary of the Interior to promulgate regulations listing those species of plants or animals that are “threatened” or “endangered” under specific criteria, and to designate their critical habitat at the time of listing. 16 U.S.C. 1533. This requirement that the listing of the species and the designating of critical habitat occur concurrently was passed in the 1978 amendments to the ESA.  Through this litigation, various environmental groups seek to compel the designation of critical habitat for the species. Photo from South Florida Water Management Districttaken at Stormwater Treatment Area 5.

EXCERPT: Defendants argue that the Service's decision not to designate critical habitat for the Panther is discretionary and therefore unreviewable under the APA because Congress did not provide any standards as to when that discretion should be exercised. Def. Br. at 15. In other words, the ESA sets forth no specific criteria that the Service must consider in deciding whether to exercise its authority to designate critical habitat for pre-1978 species because the statute lacks standards governing the Service's discretionary decisions. Plaintiffs assert that there is law to apply and point to the APA's arbitrary and capricious standard (which Plaintiffs argue applies to all agency actions); the APA's standard on petitions for rulemaking, 5 U.S.C. § 553; and the ESA regulations that provide numerous, specific standards that the Service must follow once it receives a petition to designate critical habitat...


petitions to designate critical habitat. The Court disagress. Just because an agency has the authority granted by Congress to make a final determination as to whether critical habitat should be designated, does not mean that the agency has unlimited, unreviewable discretion to not follow the rules. “It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Bennett, 520 U.S. at 172. In Bennett, which involved the designation of critical habitat under the ESA, but did not involve pre-1978 species, stated that “the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that in arriving at his decision, he ‘take into consideration the economic impact and any other relevant impact,’ and use ‘the best scientific data available.’ “ Id. Therefore, since the APA's review provisions apply, this Court has subject matter jurisdiction to conduct a record review of the agency's actions and it is respectfully recommended that Defendants' Motions to Dismiss be denied.

KEITHINKING: Sorry, no comment. Too close to home...

***

STRAHAN v. DIODATI, Civil Action No. 05-10140-NMG, 2010 WL 5174512 (D. Mass. Dec. 16, 2010).

Pro se plaintiff Richard Max Strahan (“Strahan”) is a self-proclaimed “citizen prosecutor” who has filed numerous lawsuits on behalf of whales that become entangled in fishing gear pursuant to the “citizen suit” provision of the Endangered Species Act (“the ESA”), 16 U.S.C. 1540(g)(1). The whales and those who are concerned for their safety should be grateful for his vigilance... Strahan brought the instant action against officers of the three agencies collectively responsible for licensing fishing gear deployed in Massachusetts coastal waters: Paul Diodati, in his official capacity as Director of the Massachusetts Division of Marine Fisheries; Ian Bowles, in his official capacity as Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs; and Mary Griffin, in her official capacity as Commissioner of the Massachusetts Department of Fish and Game (collectively “the defendants”).  Strahan seeks a declaratory judgment that the defendants have violated Secs. 9(a) and (g) of the ESA, 16 U.S.C. § 1538(a) and (g). Strahan also seeks a permanent injunction a) to enjoin the defendants from continuing to license certain commercial fishing equipment that allegedly entangles whales in violation of the ESA and b) to require them to fund the development of “whale-safe” gear and efforts to increase the size of the whale population.

EXCERPT: In support of his June 2010 motion to dismiss without prejudice, Strahan argues that: he is unable to prosecute his claims meaningfully because he is indigent and no longer lives in the Boston area and the Court's rulings have “banned” him from further discovery, thereby precluding him from “successfully” prosecuting the defendants.  The Court will deny the plaintiff's motion to dismiss without prejudice for several reasons: (1) Plaintiff waited until the case was more than five years old (and scheduled for trial two months later) to seek dismissal, (2) Strahan argues for dismissal based on the Court's legal rulings regarding the scope of discov-ery and his dissatisfaction with the factual record subsequently developed, (3) Defendants have already spent a prodigious amount of time on this litigation, including in discovery and (4) the Court has already conducted hearings, re-viewed numerous documents, imposed a reporting requirement during the stay, decided motions and set a date for trial.  The plaintiff's stated reasons for seeking dismissal are insufficient, as “voluntary dismissal should be refused when a plaintiff seeks to circumvent an expected adverse result.”  Furthermore, to grant the plaintiff's motion at this stage in the case would cause the defendants to suffer legal prejudice. Thus, plaintiff's motion will be denied.

KEITHINKING: A cautionary note for the citizen prosecutor: Courts "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." ESA, 16 U.S.C. 1540(g).

***

CENTER FOR BIOLOGICAL DIVERSITY v. LUBCHENCO, No. C-09-04087 EDL, 2010 WL 5288188 (N.D. Cal. Dec. 21, 2010).

In this civil action for declaratory and injunctive relief, Plaintiffs Center for Biological Diversity and Greenpeace (collectively, “Plaintiffs”) allege that Defendants Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration (“NOAA”), Gary Locke, the United States Secretary of Commerce, and the National Marine Fisheries Service (“NMFS”) violated the Endangered Species Act (“ESA”), 16 U.S.C. 1531, et. seq., in failing to list the ribbon seal as threatened or endangered.  Endangered and Threatened Wildlife; Notice of 12-Month Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species, 73 Fed.Reg. 79822. The parties filed cross-motions for summary judgment, which were fully briefed. In addition, the State of Alaska filed two amicus briefs in support of Defendants. The Court held a hearing on September 2, 2010. For the reasons stated at the hearing and in this Order, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.
 
ribbonsealNOAA.jpg
The ribbon seal primarily inhabits Russia's Sea of Okhotsk and the Bering and Chukchi Seas off of western Alaska.  The species is strongly associated with the sea ice during its whelping, mating and molting periods from mid-March through June. Sea ice is essential to ribbon seal survival. However, the sea ice habitat has been shrinking. For example, there is evidence that for the pe-riod from 1979 through 2006, the sea ice extent in the Okhotsk Sea declined by 9.3% per decade.  Photo from NOAA

EXCERPT: Plaintiffs argue that the twelve-month finding was arbitrary and capricious because: (1) NMFS failed to engage in a rational analysis of whether any distinct population segment (“DPS”) of the ribbon seal may warrant listing or whether the species is threatened or endangered in a “significant portion of its range;” and (2) NMFS relied on an irrational time frame for the “foreseeable future.” Plaintiffs also argue that NMFS erred by not utilizing the best available science in making its twelve-month finding.  On balance, Plaintiffs have failed to show that Defendants' decision on this issue was arbitrary or capricious.

KEITHINKING: In a detailed and fact specific-opinion, the Court deferred to NOAA's analysis on every issue. Of note was the Court's support for Alaska's position, and the rejection of the "err in favor of the species" argument made by the plaintiffs: "However, as the Court in Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 947 (D.Or.2007) observed: 'Although an agency must still use the best available science to make that listing determination, Conner v. Burford, 848 F.2d 1441 (9th Cir.1988) cannot be read to require an agency to give the benefit of the doubt to the species under Section 4 if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. See also Alaska Amicus brief Ex. A (EPIC v. NMFS, C-02-5401 EDL at 15-16 (Mar. 2, 2004))."


Climate Change and ESA in new law review article

Category Law Reviews
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In the February 2008 issue of Boston University Law Review, Professor J.B. Ruhl at Florida State University published yet another article on the Endangered Species Act, CLIMATE CHANGE AND THE ENDANGERED SPECIES ACT: BUILDING BRIDGES TO THE NO-ANALOG FUTURE.  The abtract reveals the significance of the paper, raising a theme often found here on ESAblawg as well.

This Article examines the challenges global climate change presents for the Endangered Species Act (ESA) and its primary administrative agency, the U.S. Fish and Wildlife Service (FWS). Climate change will reshuffle ecological systems in ways that will defy prediction using existing knowledge and models, posing threats to species through primary and secondary ecological effects and the effects of human adaptation to climate change. Even assuming  globalwide regulation of greenhouse gas emissions eventually yields a more stable climate variation regime, it will differ from the recent historical regime and many species will not survive the transition regardless of human interventions using the ESA. Yet many other species can survive with the assistance offered through a focused application of the ESA. This Article proposes a policy approach aimed toward that objective. It begins by introducing the climate change challenge facing the FWS and explains why, after the Supreme Court’s decision in Massachusetts v. EPA, the agency must develop a response. Part I examines the likely ecological consequences of climate change, for which we have no analog, and develops a typology of threats species will experience. Part II explores the pressures climate change will place on the FWS’s policy decisions as an escalating number of species faces increasingly more serious imperilment as a result of climate change. Part III methodically probes the relevant provisions of the ESA to identify the range of policy discretion the FWS has in making those decisions. Part IV then lays out a plan for the FWS to use the ESA to build bridges for climate-threatened species across the climate change transition and into the no-analog future. Most significantly, I propose that the ESA should not be used to regulate greenhouse gas emissions, but rather that it should be focused on establishing protective measures for species that have a chance of surviving the climate change transition and establishing a viable population in the future climate regime. In particular, the ESA can help ensure that human adaptation to climate change does not prevent other species from adapting as well.

OTHER RESOURCES

In a recent ESAblawg "Google tool," I noticed that the news was full of news on climate change and its implications for endangered species:
  • NOAA discussing the effects of changing Pacific Ocean conditions on salmonidspecies.  
  • A Center for Biological Diversity lawsuit to compel the government to list the ribbon seal, threatened by melting icepacks in Alaska
  • The free-market focused Heartlead Institute's article citing evidence of increasing polar bears populations and cooling summer polar temperatures.


ESA news: once cold, now hot; and once wet, now dry.

Category ESA musings
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Arctic and polar regions continue to be hotspots for Endangered Species Act news.  CNSnews.com reports that theInternational Fund for Animal Welfareon Tuesday filed a petition with the U.S. Fish & Wildlife Service to protect two North Pole caribou species under the Endangered Species Act.  The species population has declined 84 percent since the 1960s.  The UK Guardian also reports on the potential for the Pacific walrus to join the caribou as a listed species, and today, the Center for Biological Diversity reported that "Arctic sea ice has reached the third-lowest level ever recorded, and up to 200 walruses, which appear to be mostly new calves and yearlings, have been reported dead near Icy Cape on the north coast of Alaska."  Meanwhile, despite its status as a threatened species pursuant to the ESA, Canada still allows trophy hunting of polar bears, a fact NRDC is trying to change using the Convention on International Trade in Endangered Species.  And the DailyGreen observes that while the polar bear, walrus and ribbon seal all struggle, the Pacific brant, a small dark goose, has stopped spending winters exclusively in Mexico and other temperate climates, and now is spending time in Alaska well past its traditional nesting season.

PolarBearTourism.jpg
Despite their decline, and perhaps because of it, polar bears are a tourist attraction.  Photo by Tommy Miles from the Wataway News Online.

In another story about transformations, the ongoing challenges of water management in the Sacramento Delta received much conservative attention last week.  The American Spectator declares that due to the Endangered Species Act, "It is little exaggeration to say that the farmers of the most valuable farming region in the nation are facing extinction."  Equally displeased with the man-made drought in the Sacramento Delta, the Wall Street Journal editorial wrote that "tens of billions of gallons of water from mountains east and north of Sacramento have been channelled away from farmers and into the ocean, leaving hundreds of thousands of acres of arable land fallow or scorched.  For this, Californians can thank the usual environmental suspects, er, lawyers."   And one engineer, in a thoughtful editorial in The Desert Sun, asks a simple question: how much water is really needed for the fish?  "We can't be expected to absorb the cost of providing an unlimited amount of water to the delta without knowing the benefits. This is asking too much of the people and environment of California."


One off, two on? In response to petition by Alaska, Washington and Oregon, NOAA may delist Steller's sea lion, but NOAA may list bearded seals and ringed seals.

Category Federal Register
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75 Fed. Reg. 77602 (Monday, December 13, 2010) / Proposed Rules
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Part 223 / Docket No. 101124581–0584–01 / RIN 0648–XA046
Endangered and Threatened Species; 90-Day Finding on Petitions To Delist the Eastern Distinct Population Segment of the Steller Sea Lion
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding; request for information.

SUMMARY: We (NMFS) announce a 90-day finding on two petitions to delist the eastern Distinct Population Segment (DPS) of the Steller Sea Lion (Eumetopias jubatus) under the Endangered Species Act of 1973, as amended (ESA). We find that the petitions present substantial scientific or commercial information indicating that the petitioned action may be warranted. We are continuing our status review of this DPS to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are again  soliciting scientific and commercial information regarding this species from any interested party. DATES: Information and comments must be submitted to NMFS by February 11, 2011.

stellersealionsmall.jpg
The Steller sea lion (Eumetopias jubatus) was listed as a threatened species under the ESA on April 5, 1990 (55 FR 12645).  In 1997, based on demographic and genetic dissimilarities, NOAA designated two DPSs of Steller sea lions under the ESA: A western DPS and an eastern DPS (62 FR 24345, 62 FR 30772). Due to persistent decline, the western DPS was reclassified as endangered, while the increasing eastern DPS remained classified as threatened.  NOAA's March 2008 Revised Final Recovery Plan for the Steller's SeaLionstates that, in 2002, the number of individuals in the eastern DPS was estimated to be between 46,000 and 58,000, and the Executive Summary of the 2008 Recovery Plan states that the eastern DPS appears to have recovered from the predator control programs of the 20th century, which extirpated animals at rookeries and haulouts, no substantial threats are currently evident, and the population continues to increase at approximately 3 percent per year (NMFS 2008).  On August 30, 2010, NOAA received a petition from the States of Washington and Oregon to delist the eastern DPS of Steller sea lion under the ESA. On September 1, 2010, the Secretary of Commerce received a petition from the State of Alaska to delist the eastern DPS of Steller sea lion. Image from NOAA.

EXCERPT: new information that was not available at the time of the 2008 Recovery Plan, but that was readily available in our files upon receipt of the petitions, was presented in the petitions. For example, the petition from the States of Oregon and Washington refers to a recently published paper when they state: ‘‘Boyd (2010) concluded that ‘‘the eastern and western segments of the population have probabilities of persistence that mean they do not meet the criteria for classification as endangered and it would be reasonable to delist them’’.’’ The State of Alaska’s petition cites new aerial survey information provided in a memorandum from the Alaska Fishery Science Center to the Alaska Region Protected Resources Division of NMFS. This memorandum reported that Steller sea lion pup production in Southeast Alaska (eastern DPS) totaled 7,462 pups in 2009, with 7,443 counted at the 5 major rookeries where 5,510 had been counted in 2005.

KEITHINKING: While this is a preliminary step, delisting seems like a done deal, given NOAA's own information, and new information from three affected states.  See JuneauEmpire.   All this information suggests stable, rising and healthy population sizes, any conclusion other than a delisting guarantees litigation (especially with the fishery, see Alaska Dispatch and Fairbanks Daily News) , and presumably, a NOAA defeat.  Then again, does achieving compliance with a recovery plan really mean a population can be delisted?  See James Noles article.  Then again, sea lion advocates like the Sea Lion Defense Brigade will fiercely oppose delisting, and of course, with all three states in the 9th Circuit, who knows what will happen.  See Humane Society v. Gutierrez (as recently discussed in ESA blawg)

***

75 Fed. Reg. 77496 (Friday, December 10, 2010) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
50 CFR Part 223 / Docket No. 101126591–0588–01 / RIN 0648–XZ58
Endangered and Threatened Species; Proposed Threatened and Not Warranted Status for Subspecies and Distinct Population Segments of the Bearded Seal
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; 12-month petition finding; status review; request for comments.

SUMMARY: We, NMFS, have completed a comprehensive status review of the bearded seal (Erignathus barbatus) under the Endangered Species Act (ESA) and announce a 12-month finding on a petition to list the bearded seal as a threatened or endangered species. The bearded seal exists as two subspecies: Erignathus barbatus nauticus and Erignathus barbatus barbatus. Based on the findings from the status review report and consideration of the factors affecting these subspecies, we conclude that E. b. nauticus consists of two distinct population segments (DPSs), the Beringia DPS and the Okhotsk DPS. Moreover, based on consideration of information presented in the status review report, an assessment of the factors in section 4(a)(1) of the ESA, and efforts being made to protect the species, we have determined the Beringia DPS and the Okhotsk DPS are likely to become endangered throughout all or a significant portion of their ranges in the foreseeable future. We have also determined that E. b. barbatus is not in danger of extinction or likely to become endangered throughout all or a significant portion of its range in the foreseeable future. Accordingly, we are now issuing a proposed rule to list the Beringia DPS and the Okhotsk DPS of the bearded seal as threatened species. No listing action is proposed for E. b. barbatus. We solicit comments on this proposed action. At this time, we do not propose to designate critical habitat for the Beringia DPS because it is not currently determinable. In order to complete the critical habitat designation process, we solicit information on the essential physical and biological features of bearded seal habitat for the Beringia DPS. DATES: Comments and information regarding this proposed rule must be received by close of business on February 8, 2011. Requests for public hearings must be made in writing and received by January 24, 2011.

beardedSealNOAA.jpg
The bearded seal is the largest of the northern ice-associated seals, with typical adult body sizes of 2.1–2.4 m in length and weight up to 360 kg. Bearded seals have several distinctive physical features including a wide girth; a small head in proportion to body size; long whiskers; and square-shaped fore flippers. The life span of bearded seals is about 20–25 years. Bearded seals have a circumpolar distribution south of 85° N. latitude, extending south into the southern Bering Sea in the Pacific and into Hudson Bay and southern Labrador in the Atlantic. Bearded seals also occur in the Sea of Okhotsk south to the northern Sea of Japan. Image from NOAAnews.

***

75 Fed. Reg 77476 (Friday, December 10, 2010) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
50 CFR Part 223 / Docket No. 101126590–0589–01 / RIN 0648–XZ59
Endangered and Threatened Species; Proposed Threatened Status for Subspecies of the Ringed Seal
AGENCY: National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
ACTION: Proposed rule; 12-month petition finding; status review; request for comments.
SUMMARY: We, NMFS, have completed a comprehensive status review of the ringed seal (Phoca hispida) under the Endangered Species Act (ESA) and announce a 12-month finding on a petition to list the ringed seal as a threatened or endangered species. Based on consideration of information presented in the status review report, an assessment of the factors in the ESA, and efforts being made to protect the species, we have determined the Arctic (Phoca hispida hispida), Okhotsk (Phoca hispida ochotensis), Baltic (Phoca hispida botnica), and Ladoga (Phoca hispida ladogensis) subspecies of the ringed seal are likely to become endangered throughout all or a significant portion of their range in the foreseeable future. Accordingly, we issue a proposed rule to list these subspecies of the ringed seal as threatened species, and we solicit comments on this proposed action. At this time, we do not propose to designate critical habitat for the Arctic ringed seal because it is not currently determinable. In order to complete the critical  abitat  designation process, we also solicit information on essential physical and biological features of Arctic ringed seal habitat. DATES: Comments and information regarding this proposed rule must be  received by close of business on February 8, 2011. Requests for public hearings must be made in writing and received by January 24, 2011.

ringedSealNOAA.jpg
The ringed seal is the smallest of the northern seals, with typical adult body sizes of 1.5 m in length and 70 kg in weight. The average life span of ringed seals is about 15–28 years. As the common name of this species suggests, its coat is characterized by ring-shaped markings. Ringed seals are adapted to remaining in heavily ice-covered areas throughout the fall, winter, and spring by using the stout claws on their fore flippers to maintain breathing holes in the ice. Image from Alaska Fisheries Science Center.

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KEITHINKING: The preliminary decisions on both ringed and bearded seals note the threats of climate change and diminishing sea ice, as modeled by NOAA.  See NOAA announcement and Sustainable Business.  Interestingly, NOAA's past discussion of ribbon seals, as previously discussed in ESA blawg, revealed NOAA's intention to undertake status reviews of the bearded and ringed seal populations,and the Center for Biological Diversity also petitioned NOAA to list the two species. While NOAA is proposing to list the bearded and ringed seals, NOAA did not propose to list the ribbon seal.

LINKS: See also RadioKenai, High Country News.

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A recent NOAA announcement also discusses the information collection and reporting requirements associated with the recently listed North American Green Sturgeon.

75 Fed. Reg. 77528 (Monday, December 13, 2010) / Rules and Regulations
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
15 CFR Part 902 / Docket No. 070910507–0576–03 / RIN 0648–AV94
Endangered and Threatened Wildlife and Plants: Final Rulemaking To Establish Take Prohibitions for the Threatened Southern Distinct Population Segment of North American Green Sturgeon; Permit and Reporting Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; approval of collection-of-information requirements.
SUMMARY: NMFS announces the approval of collection-of-information requirements contained in protective regulations established under the Endangered Species Act (ESA) for the threatened Southern Distinct Population Segment of North American green sturgeon (Acipenser medirostris; hereafter, Southern DPS). The intent of this final rule is to inform the public of the permitting and reporting requirements.

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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