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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.

Plaintiffs lose in two separate Florida cases challenging federal actions related to Perdido Key beach mouse and Everglades restoration

09/27/2009

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Fisher v. Salazar,- - F.Supp.2d - -, 2009 WL 3030736 (N.D.Fla.)(William Stafford, District Judge)
INTRO: The plaintiffs, Paul and Gayle Fisher (the "Fishers") and Perdido Key Property Rights, Inc. ("PKPR") (collectively, "Plaintiffs"), filed this action alleging that the defendants (collectively, "Defendants"), through the United States Fish and Wildlife Service ("FWS"), designated critical habitat for the Perdido Key beach mouse "without adequate delineation or justification and without sufficient analysis of the economic and other impacts of the designation." Before the court at this time are the parties' cross-motions for summary judgment.

perdidokeymouse.jpg
The Perdido Key beach mouse can be found in the wild only on Perdido Key, a barrier island consisting of 2,943 acres of coastal land from Perdido Pass in Alabama to Pensacola Bay in Florida. Historically, this mouse ranged the entire length of Perdido Key (16.9 miles), inhabiting burrows dug into primary, secondary, and higher-elevation scrub dunes. By 1980, the effects of human development, coupled with a 1979 category 4 hurricane, led to the extirpation of all but a single colony of thirty mice living at Gulf State Park at the westernmost end of Perdido Key.  Photo of Perdido Key beach mouse by Auburn University and AL Cooperative Research, available at USFWS Panama City Ecological Services Office

BACKGROUND: A final rule designating revised critical habitat was published on October 12, 2006. Final Rule, 71 Fed.Reg. 60238 (Oct. 12, 2006).   The 2006 final rule designates 1300 acres--991 acres of public land and 309 acres of private land--as critical habitat for the Perdido Key beach mouse. Specifically, the revised designation consists of five land units that, together, comprise a little less than half of the total acreage of Perdido Key...  Like the federal government, the State of Florida has an Endangered and Threatened Species Act. Fla. Stat. § 379.2291. By rule, the Florida Fish and Wildlife Conservation Commission ("FFWCC") has listed the Perdido Key beach mouse as an endangered species  

RULING ON STANDING: Quite simply, the facts " 'set forth' by affidavit or other evidence" are so minimal as to preclude this court's finding on a motion for summary judgment that the Fishers have standing to challenge the critical habitat designation of either unit 2 or 4, the only two units consisting of private lands.

RULING ON MERITS:  Even if the court were to assume, for the sake of argument, that Plaintiffs do have standing to challenge the designation of unit 2, unit 4, or both, the court finds that they have not demonstrated that the FWS's designation is invalid...
In this case, the FWS hired Industrial Economics, Inc., to prepare a report analyzing the economic impacts of critical habitat designation on Perdido Key and elsewhere. The consultants' report--dated September 8, 2006-- describes the framework for analysis in some detail...  Plaintiffs disagree with the methods and results of the consulting firm's distributional-effects analysis, but they altogether fail to establish that the FWS's reliance on that analysis was arbitrary and capricious. As mentioned above, an agency decision is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43. Plain-tiffs here have demonstrated nothing of the sort.

KEITHINKING:  Although ultimately tangential to the Courts' conclusions, the opinion includes a useful explanation of the region's approach to regulation of the beach mouse, with excerpts below.  The availability of these programs probably contributed to the Court's readiness to rule against the Plaintiffs, both on their standing, and on the merits.

EXCERPT:  Because incidental take becomes a factor based on a species' presence on land, the FWS has a specific protocol for determining the presence or absence of beach mice. In the words of the FWS: "A single trapping event can provide evidence of beach mouse presence in an area if beach mice are caught; however, due to detection probabilities, a single trapping event, during which no beach mice were caught, does not determine absence. Our trapping protocol recommends quarterly trapping for two years as necessary to determine absence of beach mice.  Final Rule, 71 Fed.Reg. 60238, 60241 (Oct. 12, 2006). If presence of beach mice is documented on private lands where no critical habitat designation exists, private landowners are nonetheless required to minimize impacts on the beach mouse and, where applicable, to obtain permits and perform mitigation. On the other hand, according to FWS, neither a permit nor mitigation is required for property owners who rebuild within the footprint of previous developments...  

In December of 2005, a year before the FWS issued its final rule revising the designation of critical habitat, the Board of County Commissioners entered into an agreement with the FFWCC and the FWS to establish a unified process for mitigating impacts to the Perdido Key beach mouse. Wanting to establish a single administrative mechanism for managing and spending funds generated from various sources for beach mouse conservation, the parties established a conservation fund--the Perdido Key Conservation Management Fund--into which both state and federal permitting applicants may voluntarily contribute funds as a means of mitigating the effects of development on the beach mouse. The three governmental parties agreed to a unified mitigation fee of $100,000 per acre of impact, plus a recurring fee of $201 per development unit per year. The availability of this unified contribution approach was expected to streamline the permitting process, thereby reducing costs and delays, by simultaneously meeting the requirements of all three levels of government (county, state, and federal).

***

Miccosukee Tribe v. USA, No. 08-22966-CIV, 2009 WL 2872989 (S.D.Fla. Sept. 1, 2009)

BACKGROUND: Plaintiff's Complaint contains five counts alleging Defendants violated the Endangered Species Act (ESA) as a result of the Modified Water Deliveries to Ever-glades National Park project (MWD project). N1As part of the MWD project, Defendants, through the Army Corps of Engineers (Corps), plan to construct a one-mile bridge, which would be part of the Tamiami Trail. The Complaint alleges that the construction of the bridge would result in increased water flow and increased water levels in certain areas of the Everglades and, as a result, the habitat of the endangered Snail Kite would be harmed, thus harming the Snail Kite, as well as the endangered Wood Stork.  Defendants move to dismiss all of Plaintiff's claims based on the express language contained in the Omnibus Appropriations Act of 2009, Public Law 11- 8, 123 Stat. 524 (the "Omnibus Act"), N2which Defendants argue renders Plaintiff's claims moot, deprives Plaintiff of any claim upon which relief can be granted, and deprives the Court of jurisdiction over Plaintiff's claims.

KEY RULING: Congress's mandate is clear: the Corps "shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2a to U.S. Highway 41 (the Tamiami Trail) ..." Again, looking at the ordinary meaning of the language employed by Congress, it would be impossible to comply with the mandate of the Omnibus Act and ESA because compliance with ESA in the manner Plaintiff seeks would prevent the Corps from construction of the specified portion of the Tamiami Trail "immediately and without further delay."  When statutory provisions conflict, the latter enacted provision controls to the extent of conflict with the earlier enacted provision. See, e.g., Nguyen v. United States, 556 F.3d 1244, 1253 (11th Cir.2009). Thus, the Omnibus Act exempted this specific portion of the MWD project from complying with ESA.

TamiamiTrail01sm.jpg
The Tamiami Trail project is located in Miami-Dade County in south Florida. The purpose of the Tamiami Trial Modifications component is to identify the alterations to the Tamiami Trail that would improve water flow into Everglades National Park.  Photo of waters flowing under Tamiami Trail from the U.S. Army Corps of Engineers.

KEITHINKING: The Miccosukee Tribe filed five different lawsuits in an attempt to stop the Tamiami Trail project.  Although they obtained one preliminary injunction, and some defeats have been appealed, they have lost every decision that has reached the full merits.  See related links from the Everglades Foundation, South Florida Business Journal, and Miami Today.  

FWS reinstates ESA listing protections for grey wolf, leaves protections in place for Bliss Rapids snail

09/17/2009

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74 Fed. Reg. 47483 / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Reinstatement of Protections for the Gray Wolf in the Western Great Lakes in Compliance With Settlement Agreement and Court Order
ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing this final rule to comply with a court order that has the effect of reinstating the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf (Canis
lupus) in the western Great Lakes (WGL). This rule corrects the gray wolf listing in our regulations which will reinstate the listing of gray wolves in all of Wisconsin and Michigan, the eastern half of North Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, and the northwestern portion of Ohio as endangered, and reinstate the listing of wolves in Minnesota as threatened. This rule also reinstates the former designated critical habitat for gray wolves in Minnesota and Michigan and special regulations for gray wolves in Minnesota. DATES: This action is effective September 16, 2009.

WolfKillCBS.jpg
KEITHINKING: Haven't we done this before?  See ESA blawg.  Meanwhile, wolf hunting is underway, with the first kill today in Montana.  See Idaho Statesman. Photo above of the first wolf kill in Idaho from CBS 2news.tv

***

74 Fed. Reg. 47536 / Vol. 74, No. 178 / Wednesday, September 16, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to Remove the Bliss Rapids Snail (Taylorconcha serpenticola) From the List of Endangered and Threatened Wildlife
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 remove the Bliss Rapids snail (Taylorconcha serpenticola) from the Federal List of Endangered and Threatened Wildlife (List) pursuant to the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). Based on a thorough review of the best scientific and commercial data available, the species continues to be restricted to a small geographic area in the middle-Snake River, Idaho, where it is dependent upon cool-water spring outflows. Although some threats identified at the time of listing in 1992 no longer exist or have been moderated, ground water depletion and impaired water quality still threaten the Bliss Rapids snail. In addition, there are significant uncertainties about the effects of hydropower operations and New Zealand mudsnails on the persistence of Bliss Rapids snails in riverine habitats. In the absence of the Act’s protections, existing regulations are not likely to be sufficient to conserve the species. Given our current understanding of the species’ geographic distribution, habitat requirements, and threats, the species continues to meet the definition of a threatened species under the Act. Therefore, we have determined that removing the Bliss Rapids snail from the List is not warranted at this time.

DATES: We made the finding announced in this document September 16, 2009.

LINKS: See related story from WaterWorld.com and fact sheet from Idaho Fish & Game.

FWS lists three foreign petral species as endangered, and turns one endangered cactus into three, but listing of Goose Creek milkvetch precluded by higher priorities

09/15/2009

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74 Fed. Reg. 46914 / Vol. 74, No. 176 / Monday, September 14, 2009
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service; 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Listing the Chatham Petrel, Fiji Petrel, and Magenta  Petrel as Endangered Throughout Their Ranges
ACTION: Final rule.

MagentaPetrelBirdLife.jpeg
Magenta petrels are considered pelagic, occurring on the open sea generally out of sight of land, where they feed year round. They return to nesting sites on islands during the breeding season where they nest in colonies (Pettingill 1970, p. 206). The limited feeding habits data show that the magenta petrel preys on squid (Heather and Robertson 1997, p. 218; BirdLife International 2008c). The magenta petrel breeds exclusively on Chatham Island, New Zealand, within relatively undisturbed inland forests.  Photo from BirdLife International.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine endangered status for three petrel species (order Procellariiformes)— Chatham petrel (Pterodroma axillaris) previously referred to as (Pterodroma hypoleuca axillaris); Fiji petrel (Pseudobulweria macgillivrayi) previously referred to as (Pterodroma macgillivrayi); and the magenta petrel (Pterodroma magentae)—under the Endangered Species Act of 1973, as amended (Act). This rule implements the Federal protections provided by the Act for these three species.

***

74 Fed. Reg. 47113 / Vol. 74, No. 177 / Tuesday, September 15, 2009
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Taxonomic Change of Sclerocactus Glaucus to Three Separate Species
ACTION: Final rule.

UintaBasinHooklessCactus.jpeg
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the revised taxonomy of Sclerocactus glaucus (Uinta Basin hookless cactus) under the Endangered Species Act of 1973, as amended (Act). We determine that S. glaucus (previously considered a complex), which is currently listed as a threatened species, is actually three distinct species: S. brevispinus, S. glaucus, and S. wetlandicus. We are revising the List of Endangered and Threatened Plants to reflect the scientifically accepted taxonomy and nomenclature of these species. In addition, we revise the common names for these species as follows: S. brevispinus (Pariette cactus), S. glaucus (Colorado hookless cactus), and S. wetlandicus (Uinta Basin hookless cactus). These three species will continue to be listed as threatened with no regulatory changes.  Photo from the Center for Native Ecosystems.

***

74 Fed. Reg. 46521 / Vol. 74, No. 174 / Thursday, September 10, 2009
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service; 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Astragalus anserinus (Goose Creek milkvetch) as Threatened or Endangered
ACTION: Notice of a 12–month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 12–month finding on a petition to list Astragalus anserinus (Goose Creek milkvetch) as a threatened or endangered species under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that listing A. anserinus under the Act is warranted. However, listing is currently precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. We have assigned a listing priority number (LPN) of 5 to this species, because the threats affecting it have a high magnitude, but are non-imminent. Upon publication of this 12–month petition finding, A. anserinus will be added to our candidate species list. We will develop a proposed rule to list A. anserinus as our priorities allow. Any determinations on critical habitat will be made during development of the proposed rule.

FWS makes 90-day findings on Pacific walrus, Amargosa Toad, and Wright’s marsh thistle

09/15/2009

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74 Fed. Reg. 46548 / Vol. 74, No. 174 / Thursday, September 10, 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 Pacific Walrus as Threatened or Endangered
ACTION: Notice of 90-day petition finding and initiation of status review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Pacific walrus (Odobenus rosmarus divergens) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act), and to designate critical habitat. Following a review of the petition, we find that the petition presents substantial scientific or commercial information indicating that listing this subspecies may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the Pacific walrus is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this subspecies.

PacificWalrusbyBillHickeyFWSfromCBD.jpg
Pacific walrus use floating sea ice as a substrate for birthing and nursing calves, for resting, for isolation from predators, and for passive transport to new feeding areas (Fay 1974, pp. 393–394). Pacific walrus is thus identified as an ice-associated species.  Photo from FWS by Bill Hickey available at Center for Biological Diversity.

EXCERPT FROM THE PACIFIC WALRUS FEDERAL REGISTER ANNOUNCEMENT: The petition(from the Center for Biological Diversity) asserts that the Pacific walrus’ sea-ice habitats in the Bering and Chukchi Seas are disappearing and being degraded by global climate change (Petition, pp. 26–63). It states that the Arctic is warming faster than other regions of the globe (p. 31; Anisimov et al. 2007, p. 656), and that Arctic summer sea ice, including the ice of the Chukchi Sea, is predicted to disappear or nearly disappear between 2012 and 2030 (p. 27; Amos 2007, p. 1; Stroeve et al. 2008, p. 14). By 2050, the Bering Sea is predicted to lose about 40 percent of its winter sea ice unless emissions scenarios change (Overland and Wang 2007, p. 1). The petition states that global warming will impact the Pacific walrus by degrading and eliminating critical sea-ice habitat, decreasing prey availability, altering interactions with predators and disease, and increasing human disturbance throughout the range (Petition, p. 58). It claims that, without sea ice, the Pacific walrus will be forced into a shore-based existence for which it is not adapted (Petition, p. 27).

***

74 Fed. Reg. 46551 / Vol. 74, No. 174 / Thursday, September 10, 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 Amargosa Toad (Bufo nelsoni) as Threatened or Endangered
ACTION: Notice of 90–day petition finding and initiation of status review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the Amargosa toad (Bufo nelsoni) 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 this species may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the Amargosa toad is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species.

amargosa_toad_FWS_burroughs.gif
Since 1998, the Amargosa toad has been classified as a Protected Species by the State of Nevada. No Federal protection is currently afforded the species other than designation as a Special Status Species by the BLM.  The petitioners presented substantial information indicating that the Amargosa toad may be threatened throughout its entire range due to four of the five listing factors described in the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range (especially due to climate change); (C) disease or predation (by introduced species); (D) the inadequacy of existing regulatory mechanisms (especially State regulations that allow for residential groundwater use up to 1,800 gallons per day without the need for a permit); and  (E) other natural or manmade factors affecting its continued existence (especially invasive tree planting).  Photo by M. Burroughs from FWS, more information, including petition, available from Center for Biological Diversity.

***

74 Fed. Reg. 46542 / Vol. 74, No. 174 / Thursday, September 10, 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 Cirsium wrightii (Wright’s marsh thistle) as Threatened or Endangered with Critical Habitat
ACTION: Notice of 90–day petition finding and initiation of a status review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list Cirsium wrightii (Wright’s marsh thistle) as threatened or endangered under the Endangered Species Act of 1973, as amended, and designate critical habitat. Following a review of the petition, we find the petition provides substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we request scientific and commercial data regarding Cirsium wrightii. At the conclusion of this review, we will issue a 12–month finding to determine if the petitioned action is warranted. We will make a determination on critical habitat if and when we initiate a listing action for this species.

Cirsium_wrightii.jpeg
EXCERPT: Cirsium wrightii is a biennial (a plant completing development in 2 years, flowering its second year) or a weak monocarpic perennial (a plant that flowers, sets seed, then dies) in the sunflower family (Asteraceae).  In the New Mexico portion of the species’ range, Cirsium wrightii appears to be an obligate of seeps, springs, and wetlands.  Photo online by jerryoldenettel from flickr

NOAA announces final rule for smalltooth sawfish critical habitat in Southwest Florida, while Center for Biological Diversity announces lawsuit over Cape Sable Seaside Sparrow critical habitat

09/06/2009

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74 Fed. Reg. 45353 / Vol. 74, No. 169 / Wednesday, September 2, 2009
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 226
Endangered and Threatened Species; Critical Habitat for the Endangered Distinct Population Segment of Smalltooth Sawfish
ACTION: Final rule.

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule to designate critical habitat for the U.S. distinct population segment (DPS) of smalltooth sawfish (Pristis pectinata), which was listed as endangered on April 1, 2003, under the Endangered Species Act (ESA). The critical habitat consists of two units: the Charlotte Harbor Estuary Unit, which comprises approximately 221,459 acres of coastal habitat; and the Ten Thousand Islands/ Everglades Unit (TTI/E), which comprises approximately 619,013 acres of coastal habitat. The two units are located along the southwestern coast of Florida between Charlotte Harbor and Florida Bay. DATES: This rule becomes effective October 2, 2009.

SawfishBaltAqua.jpg
Smalltooth sawfish are tropical marine and estuarine elasmobranch (e.g., sharks, skates, and rays) fish that are reported to have a circumtropical distribution. The historic range of the smalltooth sawfish in the United States extends from Texas to New York (NMFS, 2009). Encounter data indicate smalltooth sawfish encounters can be found with some regularity only in south Florida from Charlotte Harbor to Florida Bay. A limited number of reported encounters (one in Georgia, one in Alabama, one in Louisiana, and one in Texas) have occurred outside of Florida since 1998.  Photo of a smalltooth sawfish at the Baltimore Aquarium from Sawfish Conservation Research.

***

In other news, the Center for Biological Diversity filed a lawsuit challenging the critical habitat rule for the Cape Sable Seaside Sparrow.  While CBD asserts the rule to be another example of Bush-administration abuse of the Endangered Species Act, FWS (and a prior ESA blawg entry) previously explained that this particular rule stemmed from the complexities of Everglades restoration activities.

FWS announces availability of Apache Trout recovery plan

09/06/2009

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74 Fed. Reg. 45649 / Vol. 74, No. 170 / Thursday, September 3, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Apache Trout (Oncorhynchus apache) Recovery Plan, Second Revision
ACTION: Notice of document availability: Revised recovery plan.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of the Apache Trout (Oncorhynchus apache) Recovery Plan, Second Revision. This species is one of two salmonid species native to Arizona and is currently listed as threatened. It was originally listed as endangered in 1967, but

EXCERPT: Actions needed to recover the Apache  trout include completing required regulatory compliance for stream improvements and fish stocking, implementing appropriate State and tribal fishing regulations, maintaining existing fish barriers, enhancing habitat, removing or minimizing undesirable fishes using piscicides or other feasible means, maintaining existing selfsustaining populations of pure Apache trout, establishing new self-sustaining populations, and monitoring all populations.

ApacheTroutNRDC.jpg
Apache trout is one of two salmonid species native to Arizona.  Currently, 28 pure Apache trout populations exist within historical range in Gila, Apache, and Greenlee Counties of Arizona, on lands of the Fort Apache Indian Reservation and Apache-Sitgreaves National Forest.  Photo from NRDC.  

KEITHINKING: The announcement is fine, but working links that enabled the interested public to read the document would be even better!  After much effort, I was only able to find the earlier draft plan online.

FWS denies listing for Sacramento Mountains checkerspot butterfly.

09/06/2009

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74 Fed. Reg. 45396 / Vol. 74, No. 169 / Wednesday, September 2, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Sacramento Mountains Checkerspot Butterfly as Endangered with Critical Habitat
ACTION: Notice of 12–month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 12–month finding on a petition to list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti) as an endangered species and to designate critical habitat under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that listing the subspecies is not warranted at this time. We ask the public to continue to submit to us any new information that becomes available concerning the status of or threats to the subspecies. This information will help us to monitor and encourage the conservation of the subspecies.

EXCERPT: In our review of the status of the butterfly, we carefully examined the best scientific and commercial information available. We identified a number of potential threats to this subspecies, including: Residential and commercial property development; OHV and other recreational impacts; habitat altering projects in relation to roads, powerlines, and other small-scale impacts; cattle and feral horse grazing; wildfire; noxious weeds; butterfly collection; lack of regulatory mechanisms; insect control; climate change; and extreme weather events.  ...  Climate change is also likely to continue for the foreseeable future, but there is substantial uncertainty as to how climate change, described in Factor E, will affect the butterfly or its habitat. The uncertainty associated with the information we reviewed does not permit us to make an accurate prediction whether climate change will affect the future viability of the subspecies...  We have carefully assessed the best scientific and commercial information regarding the biology of this species and its threats. We conclude that the butterfly is not likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We further conclude that the butterfly is not in danger of extinction throughout all or a significant portion of its range. In our judgment, the butterfly will continue to persist into the foreseeable future.

KEITHINKING:  In response to the petition's emphasis about the future plight of the butterfly, the announcement includes an interesting analysis of the concept of the "forseeable future," based upon a January 16, 2009, memorandum from the Office of the Solicitor.  The memo adopts a three part analysis of "foreseeable future" that considers: "(1) The biological and demographic characteristics of the species (such as generation times, persistence of current populations); (2) our ability to predict or extrapolate the effects of threats facing the butterfly into the future; and (3) the relative permanency or irreversibility of these threats."  In this era of climate change, this analysis is likely to prove especially important in disputes over species listing decisions.

Two similar dock cases, two very different outcomes

08/30/2009

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A tale of two docks.  In a recent Oregon case, Northwest Environmental Defense Center v. National Marine Fisheries Service, No. CV 08-939-MO, 2009 WL 2486039 (D. Or., Aug. 12, 2009), the U.S. Army Corps and NOAA Fisheries won a complete victory, successfully defending a biological opinion and its analysis of the impacts of the City of Oswego's dock demolition and replacement project.  In a fact-intensive case, the Court's deferential analysis upheld the Federal agencies actions on seven different Endangered Species Act claims.  The very next day, the Federal Defendants did not fare quite as well in Preserve Our Island v. U.S. Army Corps, No. C08-1353RSM, 2009 WL 2511953 (W.D.Wash., Aug. 13, 2009), a case involving issuance of a permit for the construction of a barge-loading facility on the eastern shore of Maury Island, an is-land in Puget Sound located within King County, Washington.  Ultimately, the Court determined that the informal consultation process resulted in the arbitrary and capricious issuance of "no adverse effect" determinations "in the face of scientific evidence in the record which suggests specific and serious effects" on Chinook and Southern Resident Killer Whales.  "The Court finds that the Corps violated the plain meaning and intent of Section 7(a)(2) of the ESA by ignoring or disregarding evidence that would require formal consultation with the Service."  KEITHINKING: The first case was a dispute over whether the agency "did it right," ultimately turning on the degree of judicial deference.  In comparison, the second case was a dispute over whether an agency "did it at all," with the final outcome reflecting the lack of support in the administrative record.  

FWS may list Sonoran DPS of Desert tortoise, and proposes critical habitat for San Diego ragweed.

08/30/2009

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74 Fed. Reg. 44335 / Vol. 74, No. 166 / Friday, August 28, 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 Sonoran Population of Desert Tortoise (Gopherus agasizzii) as a Distinct Population Segment (DPS) With Critical Habitat
ACTION: Notice of petition finding and initiation of status review.

SonoranDesertTortoise.jpg
Desert tortoises have an average lifespan of 35 years in the wild, where the Sonoran desert tortoise habitat s closely associated with rocky bajadas (lower slopes of mountains) and hillsides.  See USGS Report.  In the United States, the Sonoran desert tortoise occurs within Mohave desert scrub, Sonoran desert scrub, and semi-desert grassland habitat.  Hind limbs of the desert tortoise are stocky and elephantine in appearance while the forelimbs are paddle-shaped and used for digging.  Photo by Jeff Servoss from FWSArizona Ecological Services Office.

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90–day finding on a petition to list the Sonoran desert tortoise (Gopherus agasizzii) as a distinct population segment (DPS) under the Endangered Species Act of 1973, as amended, and designate critical habitat. On the basis of our review of the petition and information readily available in our files, we have determined that there is substantial information indicating that the Sonoran desert tortoise may meet the criteria of discreteness and significance as defined by our policy on distinct vertebrate population segments. Further, we find that the petition presents substantial scientific or commercial information indicating that listing the Sonoran population of the desert tortoise may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the Sonoran population of the desert tortoise to determine if listing the population is warranted. To ensure that the status review of the Sonoran population of the desert tortoise is comprehensive, we are soliciting scientific and commercial data and other information regarding this population. At the conclusion of this review, we will issue a 12–month finding to determine if the petitioned action is warranted. We will make a determination on critical habitat for the Sonoran population of the desert tortoise if we initiate a listing action.
DATES: We made the finding announced in this document on August 28, 2009. To allow us adequate time to conduct this review, we request that we receive information on or before October 27, 2009.

***

74 Fed. Reg. 44238 / Vol. 74, No. 165 / Thursday, August 27, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ambrosia pumila (San Diego ambrosia)
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for Ambrosia pumila (San Diego ambrosia) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 802 acres (ac) (324 hectares (ha)) of land are being proposed for designation as critical habitat. The proposed critical habitat is located in Riverside and San Diego Counties, California. DATES: We will consider comments we receive on or before October 26, 2009.

KEITHINKING: The limited information about this species could make the designation of critical habitat difficult.  As FWS explains, "There is a lack of specific information available regarding what constitutes physical and biological features essential to the conservation of this species.Specific information that may assist us in clarifying or identifying more specific primary constituent elements (PCEs)."

FWS seeking more information from public on black-footed albatross

08/26/2009

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73 Fed. Reg. 43092 / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules
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 Black-Footed Albatross (Phoebastria nigripes) as Threatened or Endangered
ACTION: Notice of 90-day petition finding; reopening of the information solicitation period.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public information solicitation period on our October 9, 2007, 90-day finding on a petition to list the black-footed albatross (Phoebastria nigripes) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). This action will provide all interested parties with an additional opportunity to submit information and materials on the status of the black-footed albatross. Information previously submitted need not be resubmitted as it has already been incorporated into the public record and will be fully considered in the 12- month finding. DATES: We are reopening the public information solicitation period and request that we receive information on or before September 25, 2009.

Albatrosses.jpg
Laysan and black-footed albatrosses forage throughout the North Pacific Ocean and nest on tropical and sub-tropical oceanic islands from Mexico to Japan. Albatrosses are long-lived seabirds with deferred maturity, low fecundity, and high rates of adult survival. Their life history characteristics make populations especially vulnerable, to small increases in adult mortality. The primary threats to Laysan and black-footed albatrosses include interactions with commercial fisheries, predation by introduced mammals, reduced reproductive output due to contaminants, nesting habitat loss and degradation due to human development and invasive plant species, and potential loss and degradation of habitat due to climate change and sea-level rise.  Photo and caption information from the USGS Status Assessment of Laysan and Black-Footed Albatrosses, North Pacific Ocean, 1923-2005

FWS proposes critical habitat for DPS of California tiger salamander in Sonoma County, but rejects petition to list ashy storm-petrel

08/25/2009

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74 Fed. Reg. 41662 / Vol. 74, No. 158 / Tuesday, August 18, 2009 / 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 Sonoma County Distinct Population Segment of California Tiger Salamander (Ambystoma californiense)
ACTION: Proposed rule; public hearing announcement.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Sonoma County distinct population segment (DPS) of the California tiger salamander (Ambystoma californiense) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 74,223 acres (30,037 hectares) are being proposed for designation as critical habitat. The proposed critical habitat is located in Sonoma County, California. DATES: We will accept comments received or postmarked on or before October 19, 2009.

CaliforniaTigerSalamanderHeadCJohnsonfwsmall.jpg
"Tiger" comes from the white or yellow bars on California tiger salamanders.  Standing bodies of fresh water, including natural and manmade ponds, vernal pools, and other ephemeral or permanent water bodies that hold water during winter rains for a minimum of 12 consecutive weeks in average years, are essential features of the species critical habitat. Photo from Sacramento FWS.

***

74 Fed. Reg. 41832 / Vol. 74, No. 159 / Wednesday, August 19, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Ashy Storm-Petrel as Threatened or Endangered
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 ashy storm-petrel (Oceanodroma homochroa) as threatened or endangered, under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that listing the ashy stormpetrel is not warranted. We ask the public to continue to submit to us any new information concerning the status  of, and threats to, this species. This information will help us to monitor and encourage the conservation of this species.

OrizabaRock.jpg
Photo of Orizaba Rock at Santa Cruz Island, California by NOAA, habitat for Ashy Storm-petrels.  See more photos from FWS and NPS, and prior discussion and links related to this petition, in prior ESAblawg.

EXCERPT: We assessed the best available scientific and commercial information regarding threats faced by the ashy storm-petrel. We reviewed numerous information sources including literature cited in the petition, information in our files, and information submitted to us following our 90–day petition finding (73 FR 28080; May 15, 2008) related to potential threats to the ashy storm-petrel (climate change, ocean acidification, sea level rise, predation, light attraction, contamination by chlorinated hydrocarbons, and plastic pollution) on ashy storm-petrels and the California Current marine environment.  

KEITHINKING: FWS offers a systematic analysis of each of the five listing factors (Factor A: The Present or Threatened Destruction, Modification, or Curtailment of the Species’ Habitat or Range; Factor B: Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes; Factor C: Disease or Predation; Factor D: Inadequacy of Existing Regulatory Mechanisms; and Factor E: Other Natural or Manmade Factors Affecting the Continued Existence of the Species) but found no significant threats under any of the five categories.  FWS also undertook a significant portion of the range analysis.

FWS proposes listing of seven Brazilian birds

08/12/2009

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74 Fed. Reg. 40649-40683 (August 12, 2009) / Volume 74, Number 154 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Listing Seven Brazilian Bird Species as Endangered Throughout Their Range; Proposed Rule
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list the following seven Brazilian bird species and subspecies (collectively referred to as ``species'' for purposes of this proposed rule) as endangered under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.): black-hooded antwren (Formicivora erythronotos), Brazilian merganser (Mergus octosetaceus), cherry-throated tanager (Nemosia rourei), fringe-backed fire-eye (Pyriglena atra), Kaempfer's tody-tyrant (Hemitriccus kaempferi), Margaretta's hermit (Phaethornis malaris margarettae), and southeastern rufous-vented ground-cuckoo (Neomorphus geoffroyi dulcis). This proposal, if made final, would extend the Act's protection to these species. The Service seeks data and comments from the public on this proposed rule.
DATES: We will accept comments received or postmarked on or before October 13, 2009. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by September 28, 2009.

BrazilianMergus.jpg
The Brazilian merganser occurs in a few fragmented locations in south-central Brazil, including the upper-tributaries of rivers within the Atlantic Forest biome and to the east in the Cerrado (savanna) biome. The species is a diving duck that occurred historically in riverine habitats throughout southeastern Brazil, northeastern Argentina, and eastern Paraguay.  Currently, the species is found in extremely low numbers at six highly disjunct localities, and its largest subpopulation is estimated to contain fewer than 50 individuals.

NOAA undertakes status review for humpback whale for first time in a decade, and FWS announces annual warranted but precluded finding on 20 foreign species.

08/12/2009

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74 Fed. Reg. 40568 (August 12, 2009) / Volume 74, Number 154 / Notices
DEPARTMENT OF COMMERCE National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce / Endangered and Threatened Species; Initiation of a Status Review for the Humpback Whale and Request for Information
ACTION: Notice of initiation of a status review; request for information.

SUMMARY: The National Marine Fisheries Service (NMFS) announces a status review of the humpback whale (Megaptera novaeangliae) under the Endangered Species Act of 1973 (ESA). A status review is a periodic undertaking conducted to ensure that the listing classification of a species is accurate. A status review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information on the all humpback whale populations in all waters worldwide that has become available since the last humpback whale status review in 1999. Based on the results of this review, we will make the requisite findings under the ESA.

DATES: To allow us adequate time to conduct these reviews, we must receive your information no later than October 13, 2009. However, we will continue to accept new information about any listed species at any time.

HumpbackNOAAwings.jpg
The scientific name for the humpbacks, (Megaptera novaengliae), means "Great Wings of New England."  Photo from NOAA National Marine Sanctuaries Gallery by R. Cartwright - NMFS Permit # 895-1450.

***

74 Fed. Reg. 40540-40560 (August 12, 2009) / Volume 74, Number 154 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Annual Notice of Findings on Resubmitted Petitions for Foreign Species; Annual Description of Progress on Listing Actions
ACTION: Notice of review.

SUMMARY: In this notice of review, we announce our annual petition findings for foreign species, as required under section 4(b)(3)(C)(i) of the Endangered Species Act of 1973, as amended. When, in response to a petition, we find that listing a species is warranted but precluded by higher priority listing actions, we must complete a new status review each year until we publish a proposed rule or make a determination that listing is not warranted. These subsequent status reviews and the accompanying 12-month findings are referred to as ``resubmitted'' petition findings.  Information contained in this notice describes our status review of 20 foreign taxa that were the subjects of previous warranted-but-precluded findings, most recently summarized in our 2008 Notice of Review. Based on our current review, we find that 20 species (see Table 1) continue to warrant listing, but that their listing remains precluded by higher priority listing actions.  With this annual notice of review (ANOR), we are requesting additional status information for the 20 taxa that remain warranted but precluded by higher priority listing actions. We will consider this information in preparing listing documents and future resubmitted petition findings for these 20 taxa. This information will also help us to monitor the status of the taxa and in conserving them.

NOAA revises Atlantic salmon critical habitat to exclude tribal lands

08/11/2009

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74 Fed. Reg. 39903 / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration / 50 CFR Part 226 / Endangered and Threatened Species; Designation of Critical Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population Segment; Final Rule
ACTION: Final rule.

AtlanticSalmonNationalAcademy.gif
Image from National Academies 2004 publication on Atlantic Salmon in Maine.

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule to revise the regulatory language that appeared in a final rule that published in the Federal Register of June 19, 2009. The final rule designated critical habitat for the Atlantic salmon (USalmo salar) Gulf of Maine Distinct Population Segment (GOM DPS) under the Endangered Species Act (ESA). We designated as critical habitat 45 specific areas occupied by Atlantic salmon at the time of listing that comprise approximately 19,571 km of perennial river, stream, and estuary habitat and 799 square km of lake habitat within the range of the GOM DPS and in which are found those physical and biological features essential to the conservation of the species. We excluded approximately 1,256 km of river, stream, and estuary habitat and 100 square km of lake habitat from critical habitat pursuant to the ESA. We issue this final rule to revise the designated critical habitat for the expanded GOM DPS of Atlantic salmon to exclude all trust and fee holdings of the Penobscot Indian Nation, and we correct the table to add an ‘‘E’’ to indicate that Belfast Bay is excluded from critical habitat under the ESA for reasons of economics.  DATES: Effective August 10, 2009.

EXCERPT: We do not believe that exclusion of Penobscot Tribal Trust lands and Passamaquoddy tribal lands, including their lands in the Downeast Coastal Salmon Habitat Recovery Unit (SHRU), will reduce the conservation value or functional habitat units of Atlantic salmon habitat within those particular areas, given the ongoing cooperative efforts between the Tribes and the agencies. The Penobscot Indian Nation and the Passamaquoddy Tribe own lands within the range of the GOM DPS and have actively pursued or participated in activities to further promote the health and continued existence of Atlantic salmon and their habitats...  The benefits of excluding Tribal lands from critical habitat include maintenance of a long-term working relationship between the Tribes and government agencies that promotes environmental conservation and Atlantic salmon conservation and the continued promotion of established national policies, our Federal trust obligations, and our deference to the Tribes in management of natural resources on their lands.

KEITHINKING: for more information on the efforts of the regional tribes, visit CooperativeConservationAmerica.org

FWS may list Jemez Mountains salamander, announces status review

08/11/2009

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74 Fed. Reg. 40132 / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules
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 Jemez Mountains Salamander (Plethodon neomexicanus) as Threatened or Endangered With Critical Habitat
ACTION: Notice of 90-day petition finding and initiation of a status review.

JemezMountainsSalamanderAlamosNatLab.jpg
The Jemez Mountains salamander is strictly terrestrial, does not possess lungs, and does not require standing surface water for any life stage. Respiration occurs through the skin and requires a moist microclimate for gas exchange. Reproduction in the wild remains unobserved, but it is presumed that the salamander lays eggs in spaces underground. Fully-formed salamanders hatch from the eggs.  The salamander occurs in the Jemez Mountains in northern New Mexico in Los Alamos, Rio Arriba, and Sandoval Counties, where it predominantly occurs in mixed-conifer forest at an elevation between 2,200 and 2,900 meters (7,220 and 9,510 feet).  Photo from Las Alamos National Laboratory.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the Jemez Mountains salamander (Plethodon neomexicanus) (salamander) as threatened or endangered and designate critical habitat under the Endangered Species Act of 1973, as amended. Following a review of the petition, we find that the petition provides substantial scientific or commercial information indicating that listing the Jemez Mountains salamander may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species. At the conclusion of this review, we will issue a 12–month finding to determine if the petitioned action is warranted. We will make a determination on critical habitat for this species if we initiate a listing action.
DATES: We made the finding announced in this document on August 11, 2009. To allow us adequate time to conduct this review, we request that we receive information on or before October 13, 2009.

LINKS: Wild Earth Guardians calls the Jemez Mountains salamander the most imperiled of only three salamanders that exist in New Mexico; and New Mexico Game & Fish believes that this salamander moves to subterranean cavities to avoid freezing temperatures.  Also visit Amphibians and Reptiles of Los Alamos County by Los Alamos National Laboratory.

Center for Progressive Reform comments on improving ESA Section 7 consultation may seek too much of a good thing.

08/03/2009

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Responding to the Obama Administration's requests for comments on potential improvements to the Endangered Species Act Section 7 consultation process, the Center for Progressive Reform offered its insights earlier today.  See link.  Among its recommendations were to:
  1. Broaden the scope of agency actions subject to Section 7 consultations to include all agency actions
  2. Amend the regulatory definitions of “cumulative effects” and “indirect effects” to more closely align with the guidelines for implementing the National Environmental Policy Act (NEPA);
  3. Amend the regulatory definitions of “destruction or adverse modification of critical habitat” and “jeopardize the continued existence of” so that they better enable FWS and NMFS to provide for the recovery of listed species, and so that they are better grounded in biological science;
  4. Stop considering any new regulatory proposals that would provide federal agencies with the authority to determine on their own whether a Section 7 consultation is required for a proposed action;
  5. Ensure that the Environmental Protection Agency fully comply with the Section 7 consultation process when regulating pesticides under the Federal Insecticide, Fungicide and Rodenticide Act and when developing water quality criteria for the protection of aquatic life under the Clean Water Act;
  6. Improving the manner in which they track and monitor federal agencies' efforts to comply with recommendations made during the Section 7 consultation process and the actual outcomes that are achieved by agency efforts to comply with these recommendations; and
  7. Explore ways to use the often ignored provisions of section 7(a)(1) of the ESA—which requires that all federal agencies implement programs for the conservation of endangered species—to address the threats posed to endangered by global climate change.

    KEITHINKING: CPR's comments, such as the proposed amendments to regulatory definitions, FIFRA consultations, and improved tracking of biological opinion implementation, reflect a number of reasonable (but of course, debatable) policy reforms.  However, in one important respect, the well-intentioned comments exemplify a frequent problem with many outsider-looking-in comments on ESA implementation.  Although at times absolutely necessary to protect species on the brink of extinction, the ESA consultation process also brings with it significant burdens.  Development of a "biological opinion" is an excruciatingly detailed endeavor, often leading to 100-plus page documents, relying in turn upon thousands of pages of scientific literature.  The many layers of statutory and regulatory requirements, all endlessly litigated, create a process where nearly any biological opinion is likely to have at least one mistake or omission (or even just one less-than-perfectly explained paragraph) thus enabling the creative opponent to obtain an injunction of the underlying project.  As a result, to insist that consultation should be conducted on "all agency actions," or to suggest that the process should be expanded using the provisions of ESA Sec. 7(a)(1), is to ignore both the consequences of those demands, and the long history of ESA litigation.  In some cases, especially when federal actions benefit the status of a species or its habitat, or where federal actions have de minimus impacts, the imposition of the ESA's procedural burdens may inadvertently create new opportunities for mischief (and don't forget, a burden on the taxpayers.)  

    ESA amendments may be needed, regulatory reform of the ESA may be needed, and yes, the Bush Administration over-reached.  

    But progressive reform of the ESA should seek to improve the ESA consultation process when helpful, and to ease the burdens when it is not.  

    Too much consultation is not a good thing.

FWS proposes critical habitat for two Oregon plants

08/03/2009

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74 Fed. Reg. 37314 / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Limnanthes floccosa ssp. grandiflora (Large-Flowered Woolly Meadowfoam) and Lomatium cookii (Cook’s Lomatium)
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for two plants, Limnanthes floccosa ssp. grandiflora (large-flowered woolly meadowfoam) and Lomatium cookii (Cook’s lomatium)  under the Endangered Species Act of 1973, as amended (Act). We are proposing to designate 2,561 hectares (ha) (6,327 acres (ac)) as critical habitat for Limnanthes floccosa ssp. grandiflora in Jackson County, Oregon, and 2,875 ha (7,104 ac) as critical habitat for Lomatium cookii in Jackson and Josephine  Counties, Oregon. The total critical habitat area proposed in this rule, including critical habitat units that overlap for the two species, is 4,467 ha (11,038 ac). DATES: To provide us with adequate time to consider your comments, please ensure that we receive them on or before September 28, 2009.

meadowfoam.jpg
Photo from Roseburg, Oregon field office of the U.S. FWS of the Large-flowered woolly meadowfoam, a vernal pool plant in decline due to widespread human activities such as development, road and power-line construction and maintenance, livestock grazing, agricultural conversion, weed competition, mowing, and roadside spraying.

NOAA considering petition to review critical habitat for elkhorn and staghorn coral

08/03/2009

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74 Fed. Reg. 36995 /Vol. 74, No. 142 /Monday, July 27, 2009 / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration / 50 CFR Part 226 / Listing Endangered and Threatened Wildlife and Designating Critical Habitat; 90–day Finding for a Petition to Revise Designated Critical Habitat for Elkhorn and Staghorn Corals
ACTION: Notice of petition finding; request for information and comments.

SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 90–day finding for a petition to revise elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals’ critical habitat under the Endangered Species  Act (ESA) of 1973, as amended. Elkhorn and staghorn corals are listed as threatened throughout their ranges and have designated critical habitat consisting of substrate of suitable quality and availability to support larval settlement and recruitment and the reattachment and recruitment of asexual fragments in water depths shallower than 30 meters in four areas in Florida, Puerto Rico, and the U.S. Virgin Islands. The petition seeks to extend the northern boundary of designated critical habitat in the Florida area to the Lake Worth Inlet, approximately 15.5 miles (24.9 km) north of  the current boundary at Boynton Beach Inlet. We find that the petition presents substantial scientific information that the revision may be warranted. We are soliciting information and comments pertaining to this request for revision of critical habitat. DATES: Written comments and information related to this petition finding or the petitioned action must be received ee ADDRESSESby August 26, 2009.

staghorncoral.jpg
Photo of staghorn coral from the politics of green.  KEITHINKING: bloggers do make a difference.  Congratz to the politics of green.

NOAA extends comment period on status review for Oregon Coast coho salmon ESU

08/03/2009

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74 Fed. Reg. 38170 / Vol. 74, No. 146 / Friday, July 31, 2009 / Notices
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / Listing Endangered and Threatened Species: Initiation of a Status Review for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon
ACTION: Reopening of public comment period.

SUMMARY: On April 29, 2009, we, NMFS, announced the initiation of a status review under the Endangered Species Act (ESA) for the Oregon Coast coho salmon (Oncorhynchus kisutch) evolutionarily significant unit (ESU). As part of that proposal, we provided a 90–day comment period, ending on July 28, 2009. We have received requests for an extension of the public comment period. In response to these requests, we are reopening the comment period for the proposed action. DATES: Information and comments on the subject action must be received by August 18, 2009.

cohoSalmon.jpg
Although benefitting from extensive science and recovery planning, such as the Oregon Plan for Salmon and Watersheds, Oregon Coast coho salmon ESU(photo above from U.S. Institute for Environmental Conflict Resolution) have been a subject of litigation since 1993.  See also, Columbia Basin Fish & Wildlife News Bulletin.

ESA in the News: FWS shuffles, and other smelt, salmon, and sawfish stories

07/30/2009

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The U.S. Fish and Wildlife Service is making minor but familiar changes to its endangered species management personnel, reports the New York Times.  Gary Frazer is back, overseeing the endangered species program for the U.S. Fish and Wildlife Service, just as he did under the Clinton administration, and Bryan Arroyo, currently assistant director of endangered species, will become assistant director for fisheries and habitat conservation.  But the return of the Clintonites hasn't satisfied some environmental fundraisers, the American Spectator sarcastically (and don't forget, sore-loserly) points out in a recent article titled we've won, please help.

But Congress is showing the money to endangered species, allocating funds for sea otters and turtles, and San Juan residents are helping the whales, though, protesting the effects of whale watching on orcas.  See EarthTimes.  In fact, due to new NOAA rules to protect killer whales, the U.S. Navy can't use sonar in Puget Sound noted the Kitsap Sun, but recent got permission to increase use in Florida waters.  See Jacksonville.com.  

The noise continues to reach painful volumes in the struggle over protection of the delta smelt in the Sacramento Delta, however.  USA Today reports that farmers are blaming the Feds for worsening the drought, local boaters are planning an in-water protest, and Rep. George Radanovich (R-Fresno), personally signed the Pacific Legal Foundation's petition seeking to invoke the Endangered Species Act "God Squad" to create an exception to the ESA.  “Without relief from the God Squad, the harsh enforcement of rigid environmental rules will inflict more pain and suffering," says PLF.  But harsh enforcement is exactly what happened in Vermont, where one man is going to jail for possession of a lynx carcass.  Eventually, someone else in New Jersey may land time for some pilfered piping plover eggs.   But the Heritage Foundation says that the ESA enforcement is an example of over-criminalization, especially in the context of orchids.

After reading that it was not criminal to send trout off a 460 foot cliff, see Oregon Statemen Journal, I wondered if the Heritage Foundation might have a point.  But for the moment (with the exception of the tearing down of Oregon's Gold Ray Dam), it is almost as though hydropower operators are being praised as heroes.  Idaho biologists expect good sockeye salmon numbers, says the Idaho Mountain Express, and the LA Times report that hydropower is getting even greener when it comes to salmon management.  

And finally (in a few items of personal interest), a University of Florida shark expert (go Gators) is helping with the efforts to protect sawfish too, and Plum Island, an 840 acre island home to a federal animal disease research center near Long Island's North Fork (check out the vineyards) is for sale.

NOAA proposes regulations to protect killer whales

07/30/2009

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74 Fed. Reg. 37674 / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration / 50 CFR Part 224 / Protective Regulations for Killer Whales in the Northwest Region Under the Endangered Species Act and Marine Mammal Protection Act
ACTION: Proposed rule; request for comments, and availability of Draft Environmental Assessment on regulations to protect killer whales from vessel effects.

SUMMARY: We, the National Marine Fisheries Service (NMFS), propose regulations under the Endangered Species Act and Marine Mammal Protection Act to prohibit vessels from approaching killer whales within 200 yards and from parking in the path of whales for vessels in inland waters of Washington State. The proposed regulations would also prohibit vessels from entering a conservation area during a defined season. Certain vessels would be exempt from the prohibitions. The  purpose of this action is to protect killer whales from interference and noise associated with vessels. In the final rule announcing the endangered listing of Southern Resident killer whales we identified disturbance and sound associated with vessels as a potential contributing factor in the recent decline of this population. The Recovery Plan for Southern Resident killer whales calls for evaluating current guidelines and assessing the need for regulations and/ or protected areas. We developed this proposed rule after considering comments submitted in response to an Advance Notice of Proposed Rulemaking (ANPR) and preparing a draft environmental assessment (EA). We are requesting comments on the proposed regulations and the draft EA.

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Killer whales in the eastern North Pacific have been classified into three forms, or ecotypes, termed residents, transients, and offshore whales.  The regulatory measures proposed here are designed to protect killer whales from vessel impacts and will support recovery of Southern Resident killer whales including those in Puget Sound.  See ecoworldly, kitsap sun, and photo from NOAA.

KEITHINKING: In a particularly noteworthy comment, given the nature of the regulations, the bellingham herald quoted a local whale watch cruise operator to say that the proposed new federal rules to protect Puget Sound orca whales don't appear to be too drastic.  "They're not horrible, they're not great," said Drew Schmidt, owner of Victoria San Juan Cruises. "They're not going to put us out of business."  Use of sonar by the U.S. Navy, however, is strictly off limits.  See Kitsap Sun.

NOAA may list largetooth sawfish as an endangered species

07/30/2009

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74 Fed. Reg. 37671 / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Parts 223 and 224 / Listing Endangered and Threatened Species and Designating Critical Habitat: Notice of Finding on a Petition To List the Largetooth Sawfish (Pristis perotteti) as an Endangered or Threatened Species Under the Endangered Species Act
ACTION: Notice of finding, request for information, and initiation of status review

SUMMARY: We, NMFS, announce a 90 day finding on a petition to list largetooth sawfish (Pristis perotteti) as endangered or threatened under the Endangered Species Act (ESA). We find that the petition presents substantial scientific and commercial information indicating the petitioned action may be warranted. We will conduct a status review of largetooth sawfish 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 (see below). DATES: Information and comments on the subject action must be received by September 28, 2009.

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Sawfish in general inhabit the shallow coastal waters in tropical, subtropical and warm-temperate waters. They are typically found very close to shore lying on muddy and sandy bottoms, in bays, estuaries, and lagoons.  However, Largetooth sawfish move among
salinity gradients freely and appear to have more physiological tolerance of freshwater than smalltooth sawfish Photo from opencage.info

KEITHINKING: In a 2000 ruling on a prior petition, NOAA said it would “maintain the largetooth sawfish as a candidate species, and continue to solicit more information regarding this species to resolve doubts regarding its range and taxonomy.” 65 Fed. Reg. 12959.  Wildearth Guardians latest petition compelled NOAA to reconsider those doubts, and argued that NOAA "inappropriately discounts the historic abundance of Largetooth Sawfish in Texas waters and elsewhere along the United States Gulf Coast."   However, the information gap remains, and in the recent notice, NOAA again cautions that "Quantitative data on largetooth sawfish population trends are lacking in the petition and our files" and that "There is little information in the petition or our files related to genetic, morphological, or other population structure differences within the species beyond the unique freshwater population of Lake Nicaragua..."

LINKS: NOAA information and links, and Wildearth Guardians petition to list the longtooth sawfish.

FWS notices proposed enhancement of survival permit for Oregon forests, granting Safe Harbor and incidental take coverage to landowners in return for habitat management measures that benefit Northern spotted owls

07/22/2009

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74 Fed. Reg. 35883 / Vol. 74, No. 138 / Tuesday, July 21, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; Permit Application, Northern Spotted Owl, Oregon
ACTION: Receipt of application for enhancement of survival permit; notice of availability of programmatic safe harbor agreement.

SUMMARY: The Oregon Department of Forestry (ODF) has applied to the U.S. Fish and Wildlife Service (Service) for an enhancement of survival permit (permit) pursuant to the Endangered Species Act of 1973, as amended. The permit application includes a proposed programmatic safe harbor agreement (Agreement) between ODF, the U.S. Department of Agriculture—Natural Resources Conservation Service (NRCS), and the Service. The proposed term of the permit and Agreement is 50 years. The requested permit would authorize ODF to extend incidental take coverage with assurances through issuance of Certificates of Inclusion to eligible landowners who are willing to carry out habitat management measures that would benefit the northern spotted owl (Strix occidentalis caurina), which is federally listed as threatened. The covered area or geographic scope of this Agreement includes non-Federal forest lands within the range of the spotted owl in Oregon. We request comments from the public on the permit application, proposed Agreement, and related documents, which are available for review (see ADDRESSES below). DATES: Comments must be received from interested parties on or before August 20, 2009.

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One of the primary threats affecting the northern spotted owl is the widespread loss of suitable habitat. Spotted owls are most often found in older forests with: High canopy closure; a multi-layered/multi-species canopy; larger trees (greater than 30 inches diameter at chest height); a high incidence of those large trees with various deformities (broken tops, large cavities, e.g.); large dead trees; accumulations of woody debris on the ground, including large fallen trees; and sufficient open space below the tree canopy for spotted owls to fly.  Photo from Oregon State.

KEITHINKING: As explained in the Federal Register notice, "Safe Harbor Agreements, and the subsequent enhancement of survival permits that are issued pursuant to section 10(a)(1)(A) of the Act, encourage private and other non-Federal property owners to implement conservation efforts for listed species by assuring the landowners that they will not be subjected to increased property use restrictions as a result of their efforts to either attract listed species to their property, or to increase the numbers or distribution of listed species already on their property."  Generally, these evaluations take place on a site specific, property-by-property basis.  In this instance, the analysis is more regional in scope.  Some critics may raise concerns that this analysis is insufficiently site-specific, similar to the concerns recently adjudicated in Friends of Animals v. Salazar (see prior ESA blawg).  But here, the proposed permit also anticipates a future case-by-case, site-by-site review of owl habitat for landowners seeking protection under the scope of the safe harbor agreement.  See, Federal Register Notice, 74 Fed. Reg. at 35884 col. 2 ("Sites known to be occupied by spotted owls or that contain suitable habitat will have their baseline conditions determined on a case-by-case basis by ODF and the Service, with landowner consent. Baseline conditions will be expressed in terms of the amount (acres) and quality of habitat.").  The proposed process also seems to delegate some of the FWS permitting authority to the Oregon Department of Forestry, empowering ODF to extend incidental take coverage to eligible landowners, in return for agreed-upon conservation efforts (and after the above-mentioned site-specific review is complete.)  As the announcement notes, "State of Oregon statutes give ODF the authority to enter into Stewardship Agreements with landowners who wish to voluntarily improve fish and wildlife habitat and water quality."

FWS says listing of white-sided jackrabbit may be warranted

07/22/2009

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74 Fed. Reg. 36152 / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules
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 White-Sided Jackrabbit (Lepus callotis) as Threatened or Endangered
ACTION: Notice of 90–day petition finding and initiation of status and critical habitat review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the white-sided jackrabbit (Lepus callotis) as an endangered species and designate critical habitat under the Endangered Species Act of 1973, as amended. Following a review of the petition, we find the petition provides substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing this species is warranted. To ensure that the status review is comprehensive, we are requesting the public to submit scientific and commercial data and other information regarding the white-sided jackrabbit. We will make a determination on critical habitat if and when we initiate a listing action for this species.

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The white-sided jackrabbit was first listed as a candidate (Category 2) for Federal listing as either a threatened or endangered species under the Act, in the 1982 Candidate Notice of Review (47 FR 58454, December 30, 1982).  Category 2 status included those taxa for which information in the Service’s possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule.  In its resting position, a White-sided Jackrabbit is camouflaged with its surroundings. The long hind legs and feet are adapted for speed, giving the animal lift and an ability to run in a zig-zag fashion that surpasses its pursuers. The long ears serve to locate sound as well as regulate temperature when they are raised like a fan to catch passing breezes in hot conditions.  Some caption info from wikipedia, photo from Larissa's Bunny Guide.

KEITHINKING: As noted above, this species was first recognized as facing the possibility of extinction in 1982.  Twenty-seven years (and one detailed petition) later, FWS determined that listing of the species may be warranted.

ESA in the News: return of the spotted owl, and the spotted turtle (and the wolf, smelt, stork, and manatee)

07/16/2009

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Earlier today, U.S. Department of the Interior Secretary Ken Salazar announced that the Western Oregon Plan Revisions were withdrawn because "the administrative record does not adequately document compliance with the Endangered Species Act and implementing regulations."  In addition, he will ask the District Court to vacate the 2008 Northern Spotted Owl Critical Habitat Rule, and direct the Fish and Wildlife Service do a review of the Northern Spotted Owl Recovery Plan.  The decision reflect a complete reversal of course of the Bush Administration's last-minute decision not complete consultation under Section 7 of the Endangered Species Act before finalizing a plan for the management of forests in western Oregon.  See DOI press release and National Public Radio report.  Earthjustice, as well as the Forest Service Employees for Environmental Ethics and a blog in Eugene, Oregon hooted victory.

But in Michigan, news sources are howling about the (re)listing (yet again) of the wolf. Both the Detroit News and Freep.com emphasized the return of substantial wolf counts in Michigan, Minnesota and Wisconsin -- over 4,000 wolves are estimated in the three states -- but the Center for Biological Diversity argues that good intentions are not enough, especially in light of inadequate funding for regional wolf research. Meanwhile, in Montana, state officials are planning a wolf hunt. for its population of 1,350.  

In Washington, D.C., the efforts to exempt the Sacramento Delta, and the delta smelt, from the Endangered Species Act continue to fail, but are garnering Congressional attention.  See, e.g. California Drought Alleviation Act of 2009.  Last week, the U.S. House of Representatives voted "no" on Congressman Nunes' s (R-CA) amendment to the Commerce, Justice, Science, and Related Agencies Appropriations Act of 2010.  The amendment attempted to override the biological opinion on salmon, by cutting off all funding.  See Delta Flows.  

In Florida, endangered wood storks are breeding like crazy, but a signature state tradition of animal interaction has been called into question.  Swimming with Florida's manatees could soon come to an end.  Citing the anti-harassment requirements in the Florida Manatee Sanctuary Act, the Marine Mammal Protection Act and the Endangered Species Act, Public Employees for Environmental Responsibility has published a petition threatening suit if the U.S. Fish and Wildlife Service does not enforce the rules more stringently.  See TampaBay.com

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And finally, in Maine, state officials are taking action to end the deaths of endangered spotted turtles protected by the Endangered Species Act.  See The Village Soup and SeacoastOnline.com, photo from Maine Department of Inland Fisheries and Wildlife.

Responding to petition, FWS announces 90-day findings on 14 parrot species

07/15/2009

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74 Fed. Reg. 33957 / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules
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 14 Parrot Species as Threatened or Endangered

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list as threatened or endangered under the Endangered Species Act of 1973, as amended (Act), the following 14 parrot species: Blue-throated macaw (Ara glaucogularis), blue-headed macaw (Primolius couloni), crimson shining parrot (Prosopeia splendens), great green macaw (Ara ambiguus), greycheeked parakeet (Brotogeris pyrrhoptera), hyacinth macaw (Anodorhynchus hyacinthinus), military macaw (Ara militaris), Philippine cockatoo (Cacatua haematuropygia), red-crowned parrot (Amazona viridigenalis), scarlet macaw (Ara macao), thick-billed parrot (Rhynchopsitta pachyrhyncha), white cockatoo (Cacatua alba), yellow-billed parrot (Amazona collaria), and yellowcrested cockatoo (Cacatua sulphurea). The thick-billed parrot is listed as an endangered species under the Act throughout its range. As such, we will not be addressing it further as part of this petition. We have also previously determined that the blue-throated macaw warrants listing in response to a 1991 petition and has been a candidate species since. Because we have recently re-evaluated the status of this species as part of our 2008 Annual Notice of Review, we will not address it further as part of this petition. We find that the petition presents substantial scientific or commercial information indicating that listing the remaining 12 species of parrots may be warranted. Therefore, with the publication of this notice, we are initiating a status review of these 12 species of parrots to determine if listing is warranted. To ensure that the status reviews are comprehensive, we are soliciting scientific and commercial data regarding these 12 species. Additionally, we are seeking any recent information concerning the bluethroated macaw so that it can be taken into consideration in our evaluation of its status when we do our re-evaluation as part of the 2009 Annual Notice of Review.

DATES: We made the finding announced in this document on July 14, 2009. To allow us adequate time to conduct the 12-month status review, we request that we receive information on or before September 14, 2009.

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The crimson shining parrot, a species worthy of a national stamp (image from birdtheme.org), is endemic to the islands of Fiji where it is found in forests, on agricultural lands, and around human habitation (IUCN 2008l). The petition claims that the primary threats to the species are the pet trade and habitat destruction. The petition asserts that a decline in the mangrove forest area in the near future will place habitat pressure on the species.

Endangered shiner gets government help

07/09/2009

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Endangered Shiner Gets Government Help, by Pete David.

Federal and state agencies in New Mexico are collaborating on an effort that will hopefully help support recovery of the Pecos bluntnose shiner (Notropis simus pecosensis) in the Pecos River located in the eastern part of the state. The U.S. Fish and Wildlife Service (FWS) listed the fish as threatened in 1987 and submitted a subsequent determination in 1989 that water operations in the river were likely to jeopardize the future existence of the fish. The primary operations to be affected were water deliveries by the Bureau of Reclamation (BOR) to the Carlsbad Irrigation District (CID) and water releases by the New Mexico Interstate Stream Commission (NMISC) to meet their interstate compact requirements to Texas.

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The Pecos bluntnose shiner, pictured above (from Bureau of Reclamation) is a subspecies of the Rio Grande bluntnose shiner (Notropis simus simus), one of a number of fish from the family Cyprinidae whose populations crashed during the 1950’s and 1960’s likely as a result of irrigation withdrawals and mainstream dams. Four Cyprinid species were extirpated from New Mexico and one, the Rio Grande silvery minnow (Hybognathus amarus) is a federally endangered species due to much reduced abundance and distribution. By the 1980’s the extensive historic range of the bluntnose shiner had been reduced to several short segments within an undammed 333 km of the Pecos River south of Lake Sumner where at least some inconsistent perennial flow occurs due to local groundwater seepage. Population surveys conducted in 2007 by NMISC and SWCA Environmental Consultants estimated the population at 65,605 + 16,873.

Studies initiated in 1992 by the FWS and the New Mexico Department of Game and Fish provided a critical understanding of the shiner’s life history requirements and led to a series of recommendations and additional studies that were implemented by the NMISC. These long-term studies were the basis for the analysis in a 2006 Environmental Impact Statement that mandated water operation modifications to maintain continuous flow to the river and protect the shiner while providing the water supply for CID.

A series of management measures were implemented to meet the federally mandated requirements including:
  • Leasing by BOR of nearly $400,000 worth of water rights from regional farmers
  • Leasing of water by NMISC using the state’s Strategic Water Reserve Program
  • Creating a water banking exchange program to store and release water at critical times
  • Establishing a fish conservation pool in upstream reservoirs to be used exclusively for the shiner

In addition, NMISC completed the Vaughn Conservation Pipeline funded by the Strategic Water Reserve Program to acquire water from networked wells and provide supplemental flow to the river. The project received a Cooperative Conservation Award from BOR in 2008. The planning and implementation of these creative measures resulted in the revised determination by the FWS that the water operations in the Pecos River were no longer jeopardizing the existence of the shiner. Due to multi-agency cooperation, support and creative flexibility there is hope that the shiner’s habitat requirements are being addressed. Annual population studies will continue to be conducted to assess the success of these water management modifications.

NRDC lacks standing to bring ESA challenge against Central Valley Project water contracts

07/09/2009

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NRDC v. Kempthorne, No. 1:05-CV-1207 OWW SMS (E.D. Cal., June 3, 2009).
OLIVER W. WANGER, District Judge.

BACKGROUND: Plaintiffs' Third Amended Complaint, Docket No. 575 (Apr. 8, 2008), alleges that Federal Defendants acted unlawfully by executing 41 long-term Central Valley Project ("CVP") contracts without performing adequate reviews under the Endangered Species Act ("ESA") and that, by executing and implementing those contracts in reliance on what it knew or should have known to be a faulty ESA review, the Bureau of Reclamation ("Reclamation") failed to comply with the ESA.

EXCERPT:  (1) Plaintiffs lack standing to challenge Reclamation's execution and implementation of the Delta-Mendota Canal Unit Water Service Contracts ("DMC Contracts"). To have standing, Plaintiffs must establish a causal connection between these contracts and harm to the delta smelt. But while the administrative record establishes such a connection between water deliveries and harm to the delta smelt, the terms of the DMC Contracts expressly allow Reclamation to take actions to protect the delta smelt, including not delivering any water to DMC Contractors if required "to meet legal obligations" such as Section 7(a)(2) of the ESA. These shortage provisions break any chain of causal connection between the execution and ongoing performance of the DMC Contracts and harm to the delta smelt. Moreover, further ESA consultation would not make the DMC Contracts more protective of the delta smelt because these contracts are already entirely defeasible if the ESA so requires.   (2) Plaintiffs' claims fail as to the Sacramento River Settlement Contracts ("SRS Contracts") because Reclamation's discretion is substantially constrained by prior contract. Therefore, following the Supreme Court's decision in Home Builders, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2008), Section 7(a)(2) of the ESA does not apply to the SRS Contract renewal process. Specifically, Article 9(a) of the SRS Contracts requires Reclamation to renew these contracts for the same quantity of water, the same allocation of water between base supply and project water, and the same place of use on specifically designated land as the original contracts. By executing the original SRS Contracts, Reclamation surrendered its power to change these terms.

Federal judge in Oregon grants limited preliminary injunction of cattle grazing in National Forest to guard against irreparable harm to steelhead

07/09/2009

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Oregon Natural Desert Association v. Kimbell, Civil No. 07-1871-HA. (D. Oregon, June 15, 2009).
HAGGERTY, District Judge

EXCERPT: Because the United States Forest Service (Forest Service) has reinitiated formal consultation pursuant to § 7 of the Endangered Species Act, they are required to prove that the grazing proposed for the Malheur National Forest (MNF) for 2009 will not jeopardize listed species. Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1035 (9th Cir.2005). Federal defendants have shown that their grazing proposals for 2009 will not jeopardize listed species, however, the court is unable to rely on their assertions that their proposals will be properly executed. Due to the Forest Service's repeated failures to carry out planned mitigation and monitoring measures on the MNF, this court finds it prudent to enter an order ensuring the implementation of the Forest Service's proposals. Accordingly, a limited preliminary injunction is appropriate.

ANALYSIS: Plaintiffs have shown that they are likely to succeed on the merits of multiple claims against the Forest Service and National Marine Fisheries Service and that irreparable harm to Middle Columbia River (MCR) steelhead is likely to occur if this court does not partially enjoin grazing on the allotments at issue...  The Forest Service and permittees are required to utilize all mitigation measures contemplated by the 2007-2011 Biological Opinion and all those proposed for the 2009 season in representations to this court...  If the Forest Service determines that it cannot comply with applicable environmental laws and construct the proposed fencing for a particular pasture, then no cattle shall be grazed on that pasture absent the express permission of this court.

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Photos, by ONDA, of stream conditions in Malheur National Forest, showing impacts of cattle grazing on Sept. 27, 2007 (on left) and benefits of recovery on Sept. 28, 2008 (on right).  

Safari Club wins Article III standing dispute in challenge to polar bear rule, but loses standing arguments in dispute over captive antelope rule

07/09/2009

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In re Polar Bear Endangered Species Act Listing and Section 4(d) Litigation and Safari Club International, et al. v. Salazar, et al,
No. 08-881(EGS).  Misc. Action No. 08-764 (EGS).  MDL Docket No. 1993.  Nos. MISC.A. 08-764EGS, MDL.1993.  2009 WL 1750413 (D.D.C. June 22, 2009).
EMMET G. SULLIVAN, District Judge.

BACKGROUND: Plaintiffs Safari Club International ("SCI") and Safari Club International Foundation ("SCIF") bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"), against defendants Ken Salazar, Secretary of the Interior, H. Dale Hall, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively "FWS"), challenging the FWS's legal determination that the listing of the Polar Bear as threatened under the Endangered Species Act creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the Marine Mammal Protection Act.  Defendants argue that they are entitled to judgment on the pleadings because (1) plaintiffs have failed to state a claim upon which relief can be granted because the action they challenge is not final agency action for purposes of the APA; and (2) because plaintiffs lack standing to challenge the statements in the Final Rule related to the importation of polar bear trophies.

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THE FINAL RULE: On May 15, 2008, the FWS issued a final rule listing the polar bear (photo above from FWS by Dave Olsen) as a threatened species throughout its range. See 73 Fed.Reg. 28,212 (May 15, 2008) ("Final Rule"). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that "Under the MMPA, the polar bear will be considered a 'depleted' species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be avail-able under section 104(c)(5) of the MMPA."  73 Fed.Reg. at 28236.

 OPINION RE: FAILURE TO STATE A CLAIM.  The APA requires that the agency action in question must be final before a party may seek judicial review. 5 U.S.C. § 704...  Plaintiffs argue that although technically there may remain the additional step of the agency denying SCI members' permit applications, the FWS's determination in the Final Rule that import permits for polar bear trophies will no longer be granted is final for purposes of judicial review. This Court agrees...  here, if anything, the legal determination SCI and SCIF are challenging is even more final, as it definitively establishes that any applications for a Section 104(c)(5) permit will not be granted.

OPINION RE: STANDING.  To satisfy Article III of the Constitution's "case" or "controversy" requirement, a plaintiff ordinarily must establish that (1) he or she has "suffered an 'injury-in-fact' "; (2) there is a "causal connection between the injury and the conduct complained of"; and (3) the injury will likely be 'redressed by a favorable decision.' " See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).   Re: Injury in fact.  Some SCI members have scheduled and even paid for polar bear hunts in 2009 and 2010, and still others may decide not to plan hunts because they will no longer be permitted to import any trophy they may obtain if the hunt is successful...  they are not required to wait for the inevitable formal denial of their permit applications. Re: Causal Connection.   Plaintiffs' allegations that SCI members can no longer obtain import permits are not "speculative"; the Final Rule makes clear that the only possible response an individual applying for a permit to import a sport-hunted polar bear trophy can reasonably expect to receive is a denial of his or her application. In other words, the Final Rule is determinative. Therefore, plaintiffs have satisfied the causal connection requirement. See, e.g., Bennett, 520 U.S. at 170-71.  Re: Redressability.  This Court finds that if plaintiffs were to prevail on their claims and the Court were to enjoin the FWS from denying the import applications based on the Final Rule, plaintiffs' injuries would be redressed.

***

Friends of Animals v. Salazar, Civil Action 04-01660 (HHK),Civil Action 06-02120 (HHK), 2009 U.S. Dist. LEXIS 53919 (D.D.C. June 22, 2009).
HENRY H. KENNEDY, JR., District Judge.

BACKGROUND: In these consolidated cases, two sets of plaintiffs, Friends of Animals ("FOA") plaintiffs and Rebecca Ann Cary ("Cary") plaintiffs, bring an action against the Department of Interior, the Fish and Wildlife Service of the Department of Interior, and officials of these agencies in their official capacities (collectively, the "FWS"). The Safari Club International and Exotic Wildlife Association (collectively, the "Safari Club") also intervened as defendants. Plaintiffs allege that the FWS unlawfully promulgated a rule under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (the "ESA," or the "Act") exempting three endangered antelope species, the scimitar-horned oryx, the addax, and the dama gazelle (collectively, the "antelope" or the "antelope species"), when bred in captivity in the United States, from the import, take and other prohibitions contained in the Act...  Private ranches in the United States breed the antelope species in captivity. Some of these ranches allow sport hunters to kill antelopes for a fee. At the same time that the FWS listed the antelope as endangered, it also issued a rule ("Rule") under paragraph 10(a)(1)(A) of the Act excepting United States captive-bred members of the antelope species from the take and other prohibitions of section 9 of the ESA. 70 Fed. Reg. 52310 (Sept. 2, 2005). The FWS found, "based on information available to the Service, captive breeding in the United States has contributed significantly to the conservation of these species." Id. at 52315.

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Photo of a dama gazelle at Black Eagle Ranch.

RULING RE: ORGANIZATION STANDING BASED ON INFORMATIONAL INJURY.  Both plaintiffs assert organizational standing to challenge alleged violations of subsections 10(c) and 10(d) of the ESA based on an informational injury. They argue that these subsections grant a statutory right to information regarding each permit. The Rule, according to plaintiffs, eliminates these permit requirements and so deprives them of their statutory right to that information...  ESA Subsection 10(d) states that exceptions may only be granted if the FWS "finds and publishes its finding in the Federal Register that (1) such exceptions were applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy" of the Act. 16 U.S.C. § 1539(d). Such findings, plaintiffs contend, provide interested persons with important information that they would not otherwise be able to obtain. Without the opportunity to learn that the FWS issued a permit and the bases for the permit, according to plaintiffs, plaintiffs cannot ask the agency to reconsider its position or challenge a permit in court...   The court concludes that plaintiffs have suffered an informational injury which confers standing to challenge the Rule under subsection 10(c) of the Act.

RULING RE: REPRESENTATIONAL AND ORGANIZATIONAL STANDING.  FOA plaintiffs argue that Feral has standing to challenge the Rule because the Rule injures her aesthetic interest in viewing the antelope species in the wild. They state that Feral has visited Senegal to observe wild antelopes, has devoted herself to the preservation of wild antelopes, and intends to return to Africa to see them again. The Rule is fairly traceable to this injury, according to FOA plaintiffs, because it increases the incentive for poachers to kill wild members of the antelope species by creating a legal market for antelope parts and trophies...  The court finds that FOA plaintiffs do not have standing on this basis because even if Feral has suffered an injury, she has not demonstrated that it is fairly traceable to the Rule...  Also, beyond the deprivation of information that hinders plaintiff organizations in the informational service they provide to their members and their ability to participate in the subsection 10(c) process, plaintiffs have not demonstrated that the Rule hinders their activities in any other concrete way.

RULING ON THE MERITS: THE EXEMPTION VIOLATES THE ESA.  Plaintiffs argue that the FWS violated subsection 10(c) of the ESA when it issued a blanket exception for all per-sons who breed the antelope species in captivity in the United States without any requirement for an application and case-by-case assessment of that application. They argue that the plain language of subsection 10(c) demands that permits be issued on a case-by-case basis, pointing to provision that "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." See 16 U.S.C. §1539(c) (emphasis added). The FWS rejoins that the plain language dictates just the opposite and point to the language of paragraph 10(a)(1), which states that "the Secretary may permit . . . any act otherwise prohibited by section 9 . . . to enhance the propagation or survival of the affected species." See id. § 1539(a)(1) (emphasis added). The court concludes that plaintiffs are correct and that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application...  Subsection 10(c) reads, in part, "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. . . . Information received by the Secretary as part of any application shall be available to the public . . . ." 16 U.S.C. § 1539(d) (emphasis added). Through this language, Congress clearly contemplated that the FWS would exercise its authority to grant exceptions under "this section" (i.e., section 10) by responding to individual applications.

FWS proposes listing and critical habitat for Casey's June beetle

07/09/2009

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74 Fed. Reg. 32857 / Vol. 74, No. 130 /Thursday, July 9, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Listing Casey’s June Beetle (Dinacoma caseyi) as Endangered and Designation of Critical Habitat

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list Casey’s June beetle (Dinacoma caseyi) as endangered under the Endangered Species Act and propose to designate approximately 777 acres (ac) (314 hectares (ha)) of land as critical habitat for Casey’s June beetle in south Palm Springs, Riverside County, California. This species inhabits desert chaparral plant communities associated with gently sloping, depositional surfaces formed at the base of the Santa Rosa Mountains in the Coachella Valley region. This proposed rule, if made final, would implement Federal protection provided by the Act. DATES: We will accept comments received or postmarked on or before September 8, 2009.

CaseysJuneBeetleCourtesyEssigMuseumOfEntomology.jpg
Photo of  Casey's June beetle available online at Center for Biological Diversity, courtesy of Essig Museum of Entomology.  According to CBD, Casey’s June beetles are restricted to only two populations in the southern part of Palm Springs, California. Remaining habitat is roughly 600 acres in approximately nine fragments and actively declining.

Climate change creates new challenges for application of ESA's listing factors to individual species

07/08/2009

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Based on the recent federal report, Global Climate Change Impacts in the United States, the nation's ecosystems will soon experience massive stresses.   According to this report (see Executive Summary too), our national ecosystems have already changed, and will endure massive changes:
  • Ecosystem processes, such as those that control growth and decomposition, have already been affected by climate change;
  • Large-scale shifts have occurred in the ranges of species and the timing of the seasons and animal migration, and are very likely to continue;
  • Fires, insect pests, disease pathogens, and invasive weed species have increased, and these trends are likely to continue;
  • Deserts and drylands are likely to become hotter and drier, feeding a selfreinforcing cycle of invasive plants, fire, and erosion;
  • Coastal and near-shore ecosystems, including coral reefs, are already under multiple stresses. Climate change and ocean acidification will exacerbate these stresses;
  • Arctic sea ice ecosystems are already being adversely affected by the loss of summer sea ice and further changes are expected;
  • The habitats of some mountain species and coldwater fish, such as salmon and trout, are very likely to contract in response to warming.

When these large scale ecosystem concepts are applied to individual species, ESA implementation could become far more difficult than it already is.  As frequently explained in Federal Register notices, Section 4 of the Endangered Species Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. "A species or subspecies may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act..."
    (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
    (B) overutilization for commercial, recreational, scientific, or educational purposes;
    (C) disease or predation;
    (D) the inadequacy of existing regulatory mechanisms; or
    (E) other natural or manmade factors affecting its continued existence."

In other words, when the ecosystem impacts, as discussed in the recent climate change report, is applied to the listing analysis, Factor A (habitat changes), C (disease), and E (other factors) can be expected to play a prominent role in virtually all future ESA listing evaluations.  It will prove technically (and legally) challenging to assess the degree to which species are, or are not, threatened or endangered by climate change.  

Nevertheless, the Intergovernmental Panel on Climate Change has estimated that if a warming of 3.5 to 5.5°F occurs, 20 to 30 percent of species that have been studied would be in climate zones that are far outside of their current ranges, and would therefore likely be at risk of extinction.  Indeed, extinction rates of plants and animals have already risen considerably, with the vast majority of these extinctions attributed to loss of habitat or over-exploitation.  There may, however, be a thin silver lining.  As the climate change report also notes, "some of the benefits ecosystems provide to society will be threatened by climate change, while others will be enhanced."

SEE ALSO: New York Times.

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FWS reviews petition, finds listing may be warranted, undertakes status review on Susan's purse-making caddisfly, and proposes endangered status for Flying earwig Hawaiian damselfly and Pacific Hawaiian damselfly

07/08/2009

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74 Fed. Reg. 32514 / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules
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 Susan’s pursemaking caddisfly (Ochrotrichia susanae) as Threatened or Endangered

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list the Susan’s purse-making caddisfly (Ochrotrichia susanae) 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 the Susan’s purse-making caddisfly may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the species to determine if listing the species is warranted. To ensure that the review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species. DATES: We made the finding announced in this document on July 8, 2009. To allow us adequate time to conduct this review, we request that we receive data and information on or before September 8, 2009.

EXCERPT: the petition presents substantial information indicating that listing the Susan’s purse-making caddisfly throughout its entire range may be warranted, based on impacts of livestock grazing, erosion and sedimentation from logging roads, and sedimentation from prescribed fire activities (Factor A), and the inadequacy of Federal regulatory mechanisms (Factor D).

***

74 Fed. Reg. 32490 / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Flying Earwig Hawaiian Damselfly (Megalagrion nesiotes) and Pacific Hawaiian Damselfly (M. pacificum) Throughout Their Ranges

SUMMARY: We, the U.S. Fish and  Wildlife Service (Service), propose to list two species of Hawaiian damselflies, the flying earwig Hawaiian damselfly (Megalagrion nesiotes) and the Pacific Hawaiian damselfly (M. pacificum), as endangered under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act’s protections to these species. We have determined that critical habitat for these two Hawaiian damselflies is prudent, but not determinable at this time. DATES: We will accept comments received on or before September 8, 2009. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by August 24, 2009.

EXCERPT: On May 4, 2004, the Center for Biological Diversity petitioned the Secretary of the Interior to list 225 species of plants and animals that were already candidates, including these two Hawaiian damselfly species, as endangered or threatened under the provisions of the Act. In our annual CNOR, dated May 11, 2005 (70 FR 24870), we retained a listing priority number of 2 for both of these species in accordance with our priority guidance published on September 21, 1983 (48 FR 43098). A listing priority number of 2 reflects threats that are both imminent and high in magnitude, as well as the taxonomic classification of each of these two Hawaiian damselflies as distinct species...  Beginning with the early alteration of streams and wetland systems by the colonizing Hawaiians, followed by extensive stream and wetland conversion, alteration, and modification, and by degradation of native forests through the 20th century, Hawaii’s native damselflies, including the two species that are the subject of this proposal, experienced a tremendous reduction in available habitat. In addition, predation by a number of nonnative species that have been both intentionally and, in some cases, inadvertently introduced onto the Hawaiian Islands is a significant and ongoing threat to all native Hawaiian damselflies...
 

FWS may list Puerto Rico's coqui llanero, undertakes status review

07/08/2009

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74 Fed. Reg. 32510 / Vol. 74, No. 129 / Wednesday, July 8, 2009 / Proposed Rules
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 Coqui Llanero (Eleutherodactylus juanariveroi) as Endangered

SUMMARY: We, the U.S. Fish and Wildlife Service (the Service), announce a 90-day finding on a petition to list coqui llanero (Eleutherodactylus juanariveroi), a tree frog, as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). Following our review of the petition, we find that it provides substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the  publication of this notice, we initiate a status review to determine if listing the coqui llanero is warranted. To ensure that the status review is comprehensive, we request scientific and commercial data and other information regarding this species. We will initiate a determination on critical habitat for this species if and when we initiate a listing action.

coquiLlanero.jpg
The coqui llanero is the smallest Puerto Rican Eleutherodactylus and is a herbaceous-wetland specialist only known to occur in the Sabana Seca-Ingenio Ward, Toa Baja type locality, which consists of approximately 180 hectares (ha) (444.8 acres (ac)) of seasonally flooded palustrine (marshy, non-tidal wetlands substantially covered with emergent vegetation such as trees, shrubs, and moss, or fresh-water herbaceous wetland), at 17 m (55.8 ft) above sea level.  Photo from coquiPR.com

FWS says listing of roundtail chub DPS warranted but precluded

07/07/2009

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74 Fed. Reg. 32352 / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List a Distinct Population Segment of the Roundtail Chub (Gila robusta) in the Lower Colorado River Basin

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list a distinct population segment (DPS) of the roundtail chub (Gila robusta) in the lower Colorado River basin as endangered or threatened under the Endangered Species Act of 1973, as amended (Act). The petition (by CBD)also asked the Service to designate critical habitat. After review of all available scientific and commercial information, we find that the petitioned listing action is warranted, but precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12- month petition finding, this species will be added to our candidate species list. We will develop a proposed rule to list this population segment of the roundtail chub pursuant to our Listing Priority System. Any determinations on critical habitat will be made at that time.  SEE ALSO, prior ESA blawg

RoundtailChubReclamation.jpg
Roundtail chubs,  in the lower Colorado River basin (as pictured above from Bureau of Reclamation) are found in cool to warm waters of rivers and streams, and often occupy the deepest pools and eddies of large streams.  They are omnivores, but algae and aquatic insects can be major portions of the diet.  

FWS proposes listing of five foreign bird species, including Ecuador's Esmeraldas woodstar

07/07/2009

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74 Fed. Reg. 32308 / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Rule to List Five Foreign Bird Species in Colombia and Ecuador, South America, under the Endangered Species Act

SUMMARY: We, the U.S. Fish and  Wildlife Service (Service), propose to list as endangered four species of birds from Colombia — the blue-billed curassow (Crax alberti), the brownbanded antpitta (Grallaria milleri), the Cauca guan (Penelope perspicax), and the gorgeted wood-quail (Odontophorus strophium) — and one bird species from Ecuador — the Esmeraldas woodstar (Chaetocercus berlepschi) — as endangered under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). This proposal, if made final, would extend the Act’s protection to these species. The Service seeks data and comments from the public on this proposed rule. DATES: We will accept comments received or postmarked on or before September 8, 2009. We must receive requests for public hearings, in writing, at the address shown in the ADDRESSES section by August 21, 2009.

EsmeraldasWoodstar.jpg
The Esmeraldas woodstar (photo from Wikimedia) is a range restricted, forest-dwelling species with highly localized populations in the semi-humid forests and woodlands from sealevel to 500 m (1,600 ft).  This habitat type has been reduced by over 99 percent by deforestation for logging, clearing for agriculture, and road development.  Researchers are not certain that the species can survive in secondary forests year-round.  The Esmeraldas woodstar is classified as an endangered species under Ecuadorian law, and part of the species’ range is included within two protected areas.

FWS notices status review of 23 southeastern species

07/06/2009

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74 Fed. Reg. 31972 / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; 5-Year Status Reviews of 23 Southeastern Species

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are initiating 5-year status reviews of 23 species under the Endangered Species Act of 1973, as amended (Act). We conduct these reviews to ensure that the classification of species as threatened or endangered on the Lists of Endangered and Threatened Wildlife and Plants is accurate. A 5-year review is an assessment of the best scientific and commercial data available at the time of the review.

EXCERPT: Our regulations at 50 CFR 424.21 require that we publish a notice in the Federal Register announcing those species currently under our active review. This notice announces our active review of 15 species that are currently listed as endangered: Mississippi gopher frog (Rana capito sevosa), Etowah darter (Etheostoma etowahae), bluemask darter (Etheostoma sp), Cahaba shiner (Notropis cahabae), Cape Fear shiner (Notropis mekistocholas), amber darter (Percina antesella), Alabama sturgeon (Scaphirhynchus suttkusi), Tar River spinymussel (Elliptio steinstansana), Anthony’s riversnail (Athearnia anthonyi), Saint Francis’ satyr butterfly (Neonympha mitchelli francisci), Spring Creek bladderpod (Lesquerella perforata), bunched arrowhead (Sagittaria fasciculata), mountain sweet pitcher plant (Sarracenia rubra ssp. jonesii), white irisette (Sisyrinchium dichotomum), and Tennessee yelloweyed grass (Xyris tennesseensis). This notice also announces our active review of 8 species that are currently listed as threatened: flattened musk turtle (Sternotherus depressus), spotfin chub (Erimonax monachus), Cherokee darter (Etheostoma scotti), Waccamaw silverside (Menidia extensa), Magazine Mountain shagreen (Mesodon magazinensis), Price’s potato-bean (Apios priceana), Cumberland rosemary (Conradina verticillata), and Heller’s blazing star (Liatris helleri).

FlattenedMuskTurtle.jpg
According to Beacham's, the optimum habitat for the flattened musk turtle appears to be free-flowing large creeks or small rivers with vegetated shallows, alternating with deeper, rock-bottomed pools.  Outdoor Alabama says that studies over the last three decades have indicated that the species is no longer present, or has significantly reduced population levels, over the majority of historic geographic distribution.  The 1990 Recovery Plan anticipated strict protection from illegal collection and sale in the pet trade.  However, Arkive warns that habitat must be protected from siltation and pollution, and the Journal of Herpetology says that disease outbreaks also represent a significant threat to the species.  Photo by USGS from Outdoor Alabama.

Bat-related biological breakthrough reminds us why we need the ESA

07/04/2009

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This week, in The FESEBJ Journal (published by the The Federation of American Societies for Experimental Biology), an article discusses a potentially age-defying discovery.  According to a team of Texas researchers, two long-lived bat species (one from Florida, of course) suffered less aging and cell damage when exposed to chemicals and acute oxidative stress.  The scientists concluded that the bat's very efficient maintenance of protein homeostasis explained the results.  See Abstract.  An article discussing the discovery called it a Fountain of Youth.  See  Science Daily.

But across North America, bats are suffering significantly from disease and habitat degradation.  White Nose Syndrome is destroying hundreds of thousands of bats, and significant explosions in insect populations could result.  See The Intelligencer, and CBS newstech.  NPR recently reported on the potential spread of WNS to cave-dwelling bats across the country.  Furthermore, of the 45 species of bats found in the continental United States, six are already federally-listed as endangered under the Endangered Species Act.  These species include the: gray bat (Myotis grisescens), Indiana bat (Myotis sodalis), Ozark big-eared bat (Corynorhinus (=Plecotus) townsendii ngens), Virginia big-eared bat (Corynorhinus (=Plecotus) townsendii virginianus), lesser long-nosed (Leptonycteris curasoae yerbabuenae), and Mexican long-nosed bat (Leptonycteris nivalis).

Whatever the flaws in the ESA (as often exposed through litigation discussed here at ESA blawg), the underlying premise of the statute remains unassailable.  Conservation of species is a human necessity.  And conservation can work, including for bat species, as proven by recent successes with the Pemba flying fox on the tropical island of Pemba, off Tanzania.  See Science Daily.  Still, we will face many challenges here in the United States with threats ranging from wind mill farms to development and habitat destruction.  See Defenders of Wildlife.  To remind us to take every effort at protecting species from extinction at the hands of those projects, we need the ESA.

MexicanFreeTailedBat.GIF
Photo of the Mexican Free-Tailed Bat  (Tadarida brasiliensis), one of the species that was the subject of the newly published research on aging, from Florida's DeFuniak Springs Garden Club.

Even without site-specific facts, U.S. District Court Judge says USDA's informal consultation on programmatic forestry rule revisions failed to comply with ESA

07/02/2009

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Citizens for Better Forestry v. U.S. Department of Agriculture, No. C 08-1927 CW (N.D. Cal. June 30, 2009)

BACKGROUND: Plaintiffs Citizens for Better Forestry, et al. (collectively, Citizens) charge Defendants United States Department of Agriculture (USDA), et al. with failing to adhere to procedures required by the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) when they promulgated regulations that govern the development of management plans for forests within the National Forest System.  In 1976, Congress enacted the National Forest Management Act (NFMA) to reform management of the National Forests. At the highest level, the NFMA requires the USDA to promulgate national uniform regulations that govern the development and revision of regional and local plans. 16 U.S.C. § 1604(g).  The second tier of National Forest regulation consists of land
resource management plans (LRMPs), also known as forest plans, which apply to large “units” of the forest system. 16 U.S.C. § 1604(a).  The third-tier of regulation consists of “site-specific” plans. 16 U.S.C. § 1604(i).

ESA RULING: The USDA argues that it has complied with the ESA because it engaged in informal consultations with the wildlife agencies and prepared a Biological Assessment (BA)...  Although the USDA engaged in correspondence with the wildlife agencies before it completed its BA, it is also undisputed that the agencies did not issue a written concurrence with the USDA’s finding that its 2008 Rule would have no effect on endangered species. Although an agency may be excused from the ESA’s consultation requirements if it concludes that its proposed action will have “no effect” on protected species (as opposed to concluding that is “unlikely to affect” protected species), see Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir. 1996), two courts have
rejected USDA’s argument that the programmatic nature of the plan development rule necessarily means that it will have no effect on the environment or protected species. The USDA has simply copied those rejected legal arguments in a new document and called it a “Biological Assessment.” This is not sufficient to satisfy the ESA’s requirements.

KEITHINKING: Federal agencies frequently experience frustration when attempting to implement the highly-specific requirements of the ESA in the context of forestry management, and regional and programmatic approaches seem to face high levels of judicial suspicion.  That judicial suspicion may have been a factor in the court's conclusion that it had jurisdiction over this dispute in the first place.  The Federal agencies reasonably questioned the standing of the Plaintiffs to object to a series of procedural reforms in the 2008 forestry rules, noting the absence of site-specific injuries, and citing a U.S. Supreme Court decision in Summers v. Earth Island Institute, ___ U.S. ___, 129 S. Ct. 1142 (2009).  The District Court judge, however, relied on an older 9th Circuit opinion, Earth Island Institute v. Ruthenbeck, 490 F.3d 687, 694 (9th Cir. 2007), a case finding that a Plaintiff could have standing to sue because it had suffered a procedural injury.  Citing factual distinctions between the types of procedural injuries experienced in the two case, the District Court held that it "is bound to follow the Ninth Circuit’s decision in Citizens I unless Summers is clearly irreconcilable with that decision."  But in effect, the District Court concluded that the U.S. Supreme Court was not specific enough in the Summers case to preclude jurisdiction in the case before it: "It is true that the Summers Court’s discussion of procedural injury could be interpreted as prohibiting a challenge based on such an injury unless the plaintiff has concrete plans to visit a specific site that faces the threat of imminent harm as a direct result of the  regulation tainted by procedural defects. However, it is not clear that the Supreme Court intended for such a rule to apply when, as here, the procedural injury in question will never be directly linked to a site-specific project."  

SEE ALSO, CommonDreams.org press release, AP wire story from Google, and New York Times.

More litigation, more politics, and more media attention, but less water and no solutions in the Sacramento Delta

07/02/2009

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Add EPA to the list of federal agencies tangled up in the Sacramento Delta disputes.  The Environmental Protection Agency is settling litigation accusing the agency of failing to comply with the Endangered Species Act , says the San Francisco Chronicle at SFgate.  The Center for Biological Diversity (CBD) press release explains that they sued EPA for failing to consult on the effects of EPA-approved pesticides on 11 different species in the Bay Area.  Among the species in question is -- of course -- the Delta smelt.  So now, in addition to the biological opinions from the U.S. Fish and Wildlife Service and National Marine Fisheries Service on smelt and salmonids and other species, soon we will add a biological opinion related to pesticide use in the region.  

With the never-ending stream of delta-smelt related ESA news coming from Northern California, it is not surprising that some frustrated farming interests are trying to invoke the ESA's Endangered Species Committee, also known as the God Squad.  See The Packer.  The Pacific Legal Foundation has filed a petition and begun a political campaign to force the use of the God Squad to create an exception from the ESA and relieve all the difficulties of managing the limited water resources for the benefit of protected species.  See PLF press release and petition.  California Governor Arnold Schwarzenegger said the “God Squad” has been ineffective in past cases, see The Business Journal, and Interior Secretary Ken Salazar said “That would be admitting failure. I am not about failure.”

The refusal to fail is admirable, but still, the enormous complexity of these challenges remain.  Farmers are protesting.  See The Mercury News.  Some editorialists will blame the environmentalists, while environmentally-oriented thinkers blame self-interested locals and failure of the regional farming economy to adapt, further bashing regional agriculture as full of myths and lies.  Ag is doing just fine, they say, especially when compared to the rest of the economy.  See SF Gate.  Nevertheless, water has become the Governator's biggest concern, and this story will only get bigger.  Coverage of this issue has already been national news, reaching the New York Times, USA Today.  

Maybe some idealistic ESA litigators believe otherwise, but a solution is unlikely to come from the judiciary.  Indeed, the orders issued by U.S. District Court Judge Oliver Wanger receive intense criticism for even attempting to provide a degree of flexibility to the state and federal agencies to make decisions on a week-by-week basis.  See IndyBay.  Eventually -- God Squad or not -- our political leaders will be forced to wrestle with very difficult choices.  The potential solution of a regional canal to reduce impacts on the Sacramento Delta remains just an idea.  See Public Policy Institute of California's 2008 paper and IndyBay.  But with so many different species in the region, inter-species competition over the quantity, quality and timing of water deliveries are inevitable.  Human needs will continue to compete with nature, further reducing the amount of water available for fish and wildlife.  Even agricultural interests are worried that Secretary Salazar will not be able to find a workable solution.  See Capital Press.  

So what comes next?  God squad?  Protests?  Peripheral canal?  More litigation?  The California Water Czar?  Pick any one, but remember, "there is always a well-known solution to every human problem -- neat, plausible, and wrong." -- H.L. Menken, "The Divine Afflatus," New York Evening Mail (Nov. 16, 1917).

DeltaSmelthandusfwspeterjohnsen.jpg
Delta Smelt photo from U.S. FWS by Peter Johnsen.

In response to petition, FWS finds that once abundant northern leopard frog population may require listing

07/02/2009

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74 Fed. Reg. 31389 /Vol. 74, No. 125 / Wednesday, July 1, 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 Northern Leopard Frog (Lithobates pipiens) in the Western United States as Threatened

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the western U.S. population of the northern leopard frog (Lithobates pipiens) as threatened under the Endangered Species Act of 1973, as amended (Act). Following a review of the petition, we find that the petition presents substantial scientific or commercial information indicating that listing the western U.S. population of northern leopard frog 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 listing the species throughout all or a significant portion of its range is warranted. To ensure that the status review of the northern leopard frog is comprehensive, we are soliciting scientific and commercial information and other information regarding this species.

EXCERPT: In a 90-day  finding, the question is whether a petition presents substantial  information that the petitioned action may be warranted. Based on our review, we find that the petition, supported by information in our files, presents substantial scientific or commercial information to indicate that the western U.S. population of the northern leopard frog may be a DPS based on genetic evidence.... We find that the petitioners have presented substantial information indicating that the northern leopard frogs in the western United States may be genetically discrete from northern leopard frogs in the eastern United States and that the western U.S. population may also be significant to the species as a whole as the loss of this potentially discrete population segment may result in a significant gap in the range of the species. We also find that the petition presents substantial scientific or commercial information that listing the DPS of the northern leopard frog in the western United States as threatened or endangered may be warranted as the result of current and future threats under Factor A due to habitat destruction and modification, Factor C due to disease and predation, Factor D because it is not currently protected by existing regulatory mechanisms, and Factor E due to malformations, pesticides, and ultraviolet radiation. Therefore, we are initiating a status review to determine if listing the species under the Act is warranted. We will issue a 12-month finding as to whether the petitioned action is warranted, not warranted, or warranted but precluded.

northernleopardfrogUSGS.jpg
The northern leopard frog -- once the most abundant and widespread frog species in North America, widely collected for dissection --has suffered massive declines since the early 1970s.  Photo of the Northern leopard frog from USGS.

SEE ALSO:
  • 1999 Washington State Status Report of the Northern leopard frog

FWS proposed revised critical habitat for Spreading Navarretia

07/01/2009

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74 Fed. Reg. 27588 / Vol. 74, No. 110 / Wednesday, June 10, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Revised Critical Habitat for Navarretia fossalis (Spreading Navarretia)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise designated critical habitat for Navarretia fossalis (spreading navarretia). Approximately 6,872 acres (ac) (2,781 hectares (ha)) of habitat fall within the boundaries of the proposed revised critical habitat designation. This proposed revised designation of critical habitat is located in Los Angeles, Riverside, and San Diego Counties in southern California.

NOAA provides notice of "intent to proceed" with critical habitat revisions for Hawaiian monk seal

07/01/2009

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74 Fed. Reg. 27988 / Vol. 74, No. 112 / Friday, June 12, 2009 / Proposed Rules
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 226 / Endangered and Threatened Species: 12–Month Finding for a Petition to Revise Critical Habitat for Hawaiian Monk Seal

SUMMARY: On July 9, 2008, we (NMFS) received a petition dated July 2, 2008, requesting that we revise the present critical habitat designation for the  Hawaiian monk seal (Monachus schauinslandi) under the Endangered Species Act (ESA) by expanding the current critical habitat in the Northwestern Hawaiian Islands, and by designating additional critical habitat in the main Hawaiian Islands. We have reviewed, and here provide a summary  of the best available information regarding Hawaiian monk seal biology and habitat use. Based on our review, we intend to revise the monk seal’s critical habitat, and we are providing our initial thoughts on the habitat features that are essential to the conservation of this species and describing how we intend to proceed with the requested critical habitat revision.

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The Hawaiian monk seal faces a multitude of human threats, including infectious diseases, fisheries interactions, habitat loss, and human interactions.  The Molokai Dispatch, in a story discussing the human interactions (including above photo), even referred to the species as the "too-friendly seal."  

KEITHINKING: NOAA originally announced the potential for critical habitat revisions for the Hawaiian monk seal in 2008.  See ESA blawg.  In this unusual critical habitat related notice (litigation related, perhaps?) NOAA explains: "the following steps will be followed to propose the revision of designated critical habitat for the Hawaiian monk seal: (1) Determine the geographical area occupied by the species at the time of listing; (2) Identify the physical or biological features essential to the conservation of the species; (3) Delineate areas within the geographical area occupied by the species that contain these features, and that may require special management considerations or protections; (4) Delineate any areas outside of the geographical area occupied by the species that are essential for the conservation of the species; and (5) Conduct economic, national security, and other analyses to determine if any areas identified in steps 3 and 4 could be excluded from critical habitat consideration under section 4(b)(2) of the ESA. Steps 1 and 2 above are included in this 12–month finding, as described below. Steps 3 - 5 will be completed in the forthcoming proposed rule.  SEE ALSO, AP wire story from google, Honolulu Star-Bulletin,

NOAA notices draft guidance on Pacific Northwest salmon recovery monitoring

06/30/2009

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74 Fed. Reg. 31008 / Vol. 74, No. 123 / Monday, June 29, 2009 / Notices

DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / Endangered and Threatened Species: Notice of Availability for Public Comment on Guidance for Monitoring the Recovery of Pacific Northwest Salmon and Steelhead Listed under the Federal Endangered Species Act

SUMMARY: The National Marine Fisheries Service’s (NMFS) Northwest Region has drafted guidance on monitoring the recovery of Pacific Northwest salmon and steelhead listed under the Endangered Species Act (ESA). This draft Pacific Northwest monitoring guidance is intended to assist NMFS’ recovery partners in Oregon, Washington, and Idaho in understanding the recovery monitoring needs under the ESA. NMFS’ Northwest Region is soliciting public review and comment on the draft Pacific Northwest monitoring guidance. DATES: All comments must be received no later than 5 p.m. Pacific Standard Time on August 28, 2009.

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NOAA recommends that Pacific Northwest states and tribes should recalibrate the fishery model to reflect harvest management of natural populations.  Photo by Dan Bacher. of the Karuk, Yurok and Hoopa Tribal members putting on a traditional fish bake in support of SalmonAID 2008.  Tribal interests promote eating wild salmon to save them, because "your choice of wild-caught salmon in your marketplace or in your local restaurant is a vote for clean and abundant freshwater conditions and sensible fisheries management. It's an investment in the cold, clean rivers that wild salmon and steelhead require. It's your vote for free passage for salmon and steelhead to and from healthy, functional spawning and rearing habitat."  

EXCERPT FROM FEDERAL REGISTER: This draft Pacific Northwest monitoring  guidance will assist NMFS’ recovery partners in Oregon, Washington, and Idaho in understanding the recovery monitoring needs under the ESA, and the desired level of statistical certainty for the monitoring information they  collect. The draft monitoring guidance includes recommended priorities for monitoring, data collection, and reporting of the viability of Pacific Northwest salmon and steelhead populations, threats to the species, and the ESA Section 4(a)(1) listing factors.

KEITHINKING: the Executive Summary of the document consists of 42 recommendations related to (1) recommendations for data collection evaluation and reporting, (2) monitoring viable salmonid population (vsp) status/trends in the pacific northwest, and (3) monitoring pacific northwest listing factors and threats, including habitat loss, hydropower impacts, harvest, disease, predation, inadequate regulation, hatcheries, and other natural causes.  One of the recommendations suggests that permit enforcement in the region may become more aggressive, recommending development of “a randomized sampling program in the Pacific Northwest to test whether permits issued under local and state regulatory actions designed to protect riparian and instream habitat are in compliance and that the provisions have been enforced. Compliance rate should be equal to or greater than 90%.”

FWS proposes listing of, and critical habitat for, Georgia Pigtoe Mussel, Interrupted Rocksnail, and Rough Hornsnail

06/30/2009

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74 Fed. Reg. 31114 / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules

DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Georgia Pigtoe Mussel, Interrupted Rocksnail, and Rough Hornsnail with Critical Habitat

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list the Georgia pigtoe mussel (Pleurobema hanleyianum), interrupted rocksnail (Leptoxis foremani), and rough hornsnail (Pleurocera foremani), as endangered species under the Endangered Species Act of 1973, as amended (Act). The Georgia pigtoe, interrupted rocksnail, and rough hornsnail are endemic to the Coosa River drainage within the Mobile River Basin of Alabama, Tennessee, and Georgia. These three species have disappeared from large portions of their natural ranges due to extensive construction of dams that eliminated or reduced water currents and caused changes in habitat and water quality. The surviving populations are small, localized, and highly vulnerable to water quality and habitat  deterioration. We are also proposing to designate critical habitat concurrently for the Georgia pigtoe, interrupted rocksnail, and rough hornsnail under the Act. In total, approximately 258 kilometers (km) (160 miles (mi)) of stream and river channels fall within the boundaries of the proposed critical habitat designation for the three species: 153 km (95 mi) for the Georgia pigtoe, 101 km (63 mi) for the interrupted rocksnail, and 27.4 km (17 mi) for the rough hornsnail. The proposed critical habitat is located in Cherokee, Clay, Coosa, Elmore, and Shelby Counties, Alabama; Gordon, Floyd, Murray, and Whitfield Counties, Georgia; and Bradley and Polk Counties, Tennessee. These proposals, if made final, would implement Federal protection provided by the Act. DATES: We will accept comments received on or before August 28, 2009.

The Georgia pigtoe, interrupted rocksnail, and rough hornsnail are riverine-adapted species that depend upon adequate water flow and are not found in ponds or lakes.  See Outdoor Alabama about ecological importance of the interrupted rocksnail, and Alabama State Park information about reintroduction efforts.  Continuously flowing water is a habitat feature associated with all surviving populations of the three species. Flowing water maintains the stream bottom and shoal habitats where these species are found, transports food items to the sedentary juvenile and adult life stages of the Georgia pigtoe, supports the periphyton and biofilm ingested by the interrupted rocksnail and rough hornsnail, removes wastes, and provides oxygen for respiration for each of the three species.  Graphic image available from Outdoor Alabama.

FWS rejects petition to delist Lost River and shortnose suckers, but FWS still intends to downlist the Lost River sucker in the Klamath Basin

06/30/2009

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74 Fed. Reg. 30996 / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules
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 Delist the Lost River Sucker (Deltistes luxatus) and the Shortnose Sucker (Chasmistes brevirostris)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to remove the Lost River sucker (Deltistes luxatus) and the shortnose sucker (Chasmistes brevirostris) from the Federal List of Threatened and Endangered Wildlife (List) under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that removing the Lost River sucker or shortnose sucker from the List may be warranted. Therefore, we will not initiate a status review for either species in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the Lost River and shortnose suckers or their habitat at any time. DATES: The finding announced in this document was made on June 29, 2009.

LostRiverSucker.jpg
Lost River and shortnose suckers are endemic to the upper Klamath Basin. Reduction and degradation of lake and stream habitats in the upper Klamath Basin has been proposed by the Service as the major factor in the decline of both species.  Photo of the Lost River sucker from The Nature Conservancy, in an article explaining how explosives -- used to destroy water management barriers and thus restoring wetlands -- may bring about recovery of these two species of fish.

EXCERPT: The 5-year review for each species analyzed all scientific and commercial information available at the time... The recommendations of the Service based on these analyses was that the Lost River sucker be downlisted from endangered to threatened and that the shortnose sucker remain listed as endangered. The petitioner claims that ‘‘the original listing was a mistake, and these fish are not experiencing any risk of extinction sufficient to invoke the Endangered Species Act’’  However, the petitioner does not provide any additional substantive discussion, data, citation, or other information or rationale to explain how the documents provided and incorporated by reference suggest that the listing was in error...  Therefore, we find that the petition and available information readily available in our files (see Recovery Plan) do not present substantial information indicating that delisting the Lost River sucker or the shortnose sucker across all or a significant portion of their ranges may be warranted at this time. We do, however, intend to develop a proposed rule to downlist the Lost River sucker to threatened, pursuant to the recommendation in the 5-year review, once our limited resources and competing priorities allow.

Despite State of Maine concerns, FWS and NOAA determine Atlantic Salmon DPS to be an endangered species

06/30/2009

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74 Fed. Reg. 29344 / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations

DEPARTMENT OF INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 224 / Endangered and Threatened Species; Determination of Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon

SUMMARY: We (NMFS and USFWS, collectively referred to as the Services) have determined that naturally spawned and conservation hatchery populations of anadromous Atlantic salmon (Salmo salar) whose freshwater range occurs in the watersheds from the Androscoggin River northward along the Maine coast to the Dennys River, including those that were already listed in November 2000, constitute a distinct population segment (DPS) and hence a ‘‘species’’ for listing. We have determined that the Gulf of Maine (GOM) DPS warrants listing as endangered under the Endangered Species Act (ESA). Critical habitat for the GOM DPS will be designated in a subsequent Federal Register notice. DATES: This rule is effective July 20, 2009.

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Gulf of Maine Atlantic salmon migrate vast distances in the open ocean to reach feeding areas in the Davis Strait between Labrador and Greenland, a distance over 4,000 km from their natal rivers.  During their time at sea, Atlantic salmon undergo a period of rapid growth until they reach maturity and return to their natal river. Most Atlantic salmon (about 90 percent) from the Gulf of Maine return after spending 2 winters at sea; usually less than ten percent return after spending 1 winter at sea; roughly one percent of returning salmon are either repeat spawners or have spent 3 winters at sea (3 sea winter, or 3SW salmon). In addition to anadromous Atlantic salmon, landlocked Atlantic salmon have been introduced to many lakes and rivers in Maine, though they are only native to four watersheds in the State. Photo from NOAA.

KEITHINKING: State officials were pleading with the federal agencies for a threatened listing, rather than an endangered listing of the DPS.  In a joint statement, as quoted in The Exception Magazine, U.S. Senators Olympia J. Snowe and Susan Collins (R-Maine) and U.S. Rep. Mike Michaud (D-Maine) were highly critical of the federal decision.  “Today's decision to expand the endangered species listing of Atlantic salmon to encompass the massive Androscoggin, Kennebec, and Penobscot River basins turns a blind eye to the monumental efforts of the state of Maine to restore thousands of miles of ecosystem, ignores the mortality of the species at sea, and fails to specifically address the adverse economic impacts an endangered species listing of this magnitude can have on an already fragile economy. This listing could not come at a worse time for the many businesses within the protected watershed areas who are struggling amidst a global economic recession and will now have to worry about significant compliance costs.”  All American Patriots reported Maine Governor John E. Baldacci to be equally frustrated.  “The extreme approach chosen by the Federal government hamstrings the State’s ability to use creative conservation efforts that have been successful in the past."

RESOURCES:

FWS considering changes to critical habitat for clay-loving wild buckwheat

06/30/2009

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74 Fed. Reg. 29456 / Vol. 74, No. 118 / Monday, June 22, 2009 / Proposed Rules

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 Revise Critical Habitat for Eriogonum pelinophilum (Clay-Loving Wild Buckwheat) / ACTION: Notice of 90-day petition finding and initiation of critical habitat review.

SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), announce a 90–day finding on a petition to revise critical habitat for Eriogonum pelinophilum (clay-loving wild buckwheat) under the Endangered Species Act (Act) of 1973, as amended.  Following a review of the petition, we find that the petition presents  substantial scientific or commercial information indicating that revision of the critical habitat for E. pelinophilum may be warranted. Therefore, with the publication of this notice, we are initiating a review of the critical habitat for the species, and will subsequently issue a 12-month finding to determine if revisions to the species’ critical habitat are warranted. To ensure that the review is comprehensive, we are soliciting scientific and commercial data and other information regarding this species. DATES: The finding announced in this document was made on June 22, 2009. To be considered in the 12-month finding for this petition to revise critical habitat, data and information must be submitted to us by July 22, 2009.

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Clay-loving wild buckwheat is a highly endangered plant found only on the Adobe Hills east of Delta and Montrose, Colorado. Urban growth there is transforming this landscape - from 1990 to 2004, the population of Montrose grew by 73 percent.  Photo from the Center for Native Ecosystems.  

EXCERPT: The petitioners state that 16  populations of Eriogonum pelinophilum existed in 2006, containing 30,000 to 60,000 individuals total, and that 8 historical occurrences have been fully extirpated (Reveal 2006, p. 2). The petitioners describe general threats to the species’ habitat, and specific threats to each of the 16 E. pelinophilum populations. The petitioners give reasons why revising critical habitat for E. pelinophilum is prudent and determinable, and describe the need as immediate because several of the threats the species faces are growing in magnitude and immediacy. The petitioners claim that critical habitat must be revised because the currently designated habitat omits an area that is now known to contain the largest and most biologically important populations of the species. Further, they say that the current designation is inadequate for ensuring recovery of the species. The petitioners made recommendations of critical habitat locations in their petition.

RESOURCES: See the petition filed with FWS, and a worthy article in the High Country News.

ESA in the news

06/24/2009

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It's been kinda quiet lately in the Federal Register, with few Endangered Species Act announcements.  But President Obama's nominee as Director of U.S. Fish and Wildlife Service caused a stir with Public Employees for Environmental Responsibility (PEER), whose press release berated Sam Hamilton for "almost never" invoking the ESA to protect wildlife, according to their analysis of agency statistics.  PEER believes he had "by far the weakest record on Endangered Species Act enforcement of any comparable official in the country."  Meanwhile, his boss, another publicly criticized environmental leader, Interior Secretary Ken Salazar, is preparing for a trip to Fresno, where he expects to encounter local farmers frustrated that the consequences of ESA enforcement have become too severe.  See The Business Journal and RestoreTheDelta.org  (But putting things into perspective, the examiner.com declares that Sarah Palin is "worse than Bush" on environmental issues.)

Of course, like politics itself, nearly all environmentaI issues are local (global climate change a partial exception).  Nevertheless, to the layperson, ESA implementation seems rife with mixed messages:  

ESA news: from Florida to California, and from courtrooms to climate change

06/11/2009

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The Endangered Species Act repeatedly made Florida news this week.  The Orlando Sentinel reports that despite concerns for listed sea turtle concerns (nevermind local budget shortfalls), coastal governments are considering lifting tolls on beach driving.  And while automobiles are always a threat to the critically-endangered Florida panther, this week, news reports have focused on a reward offered related to a shooting death of the big Florida cat.  See Tampa Bay Online.  Elsewhere in central Florida, TheLedger.com reported that a new species of beetle was discovered by a retired biology professor in Polk County, and already the news is discussing a potential endangered listing for this species as an "an accident of biogeography."  

Meanwhile, in the midwest, another beetle, already listed under the ESA, is still trying to find a home.  The Ironton Tribune reported on the release of 300 pairs of the American burying beetle into The Wayne National Forest.  Previously, in 2008, 250 pairs of beetles were introduced after rearing them at Ohio State University, The Wilds, and the St. Louis Zoo.  Another good news story came from New Mexico, where the AP reported that local biologists helped threatened gila trout populations relocate to avoid area wildfires.

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Courtrooms across the nation offered ESA news as well.  In a settlement with Defenders of Wildlife and Center for Biological Diversity, U.S. Fish and Wildlife Service agreed to reconsider denial of Endangered Species Act protection for the wolverine by 2010, says the Seattle Post Intelligencer.  Wolverine photo above from The Klamath-Siskiyou Wildlands Center.  Climate change will be a major consideration for the wolverine, but concerns for climate change did not stop a separate group of environmentalists from  "asking a federal judge to require the developer of a West Virginia wind farm to comply with the Endangered Species Act because of the potential harm to the endangered Indiana bat," says the Chicago Tribune and Charleston Gazette.   Similar problems with wind power are arising in Oregon, reports the Capital Press, due to concerns over listed sage grouse populations.

Finally, California, as always, remained a hotbed of ESA activity.  The Center for Biological Diversity remains opposed to the Habitat Conservation Plan being developed for Tejon Ranch (see prior ESA blawg) and filed a related FOIA request.  In the Sacramento Delta, the California Farm Bureau is loudly protesting the impacts of the most recent biological opinion seeking to protect salmonids and smelt, but that did not prevent the filing of yet another Notice of Intent to sue the Federal Government for failing to deliver adequate water to fish, and especially salmonids. See IndyBay.org

10th Circuit finds ESA challenge to BLM project moot because of reintroduction of Aplomado falcons in New Mexico

06/11/2009

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State of New Mexico v. Bureau of Land Management, 565 F.3d 683 (10th Cir., April 28, 2009).  

SUMMARY: The Bureau of Land Management argues that the U.S. Fish & Wildlife Service's summer 2006 decision to reintroduce the Aplomado Falcon into the plan area moots a challenge under the ESA.  The 10th Circuit agreed and vacated the portion of the district court's order addressing this issue.

BACKGROUND: State of New Mexico and a coalition of environmental organizations brought actions challenging the procedures by which Bureau of Land Management (BLM) adopted a Resource Management Plan Amendment (RMPA) opening publicly-owned desert grassland to oil and gas development. They challenged BLM's decision not to consult with the Fish and Wildlife Service ("FWS") under the Endangered Species Act ("ESA") regarding possible impacts of the planned development on the Northern Aplomado Falcon.  The lower court held that BLM violated NEPA when it failed to conduct a site-specific environmental analysis of the likely impacts of leasing the Parcel and ordered BLM to prepare such an analysis, and Plaintiffs appealed other issues, including the ESA claims.  However, in summer 2006, FWS issued a formal ruling in which it decided to reintroducethe Falcons into New Mexico and Arizona. See Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42298 (July 26, 2006).

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Within Sierra and Otero counties in southern New Mexico lie the northern reaches of the richly biodiverse Chihuahuan Desert. Among the several habitats comprising this desert ecosystem is the Chihuahuan Desert grassland, much of which has depleted to scrubland over the past century and a half. A New Mexico State University biology professor identifies this grassland as the most endangered ecosystem type in the United States. The Otero Mesa, which BLM seeks to open to oil and gas development upon conclusion of the planning process that is the subject of this litigation, is home to the endangered Northern Aplomado Falcon, along with a host of other threatened, endangered, and rare species. Lying beneath it is the Salt Basin Aquifer, which contains an estimated 15 million acre-feet of untapped potable water. Recognizing the importance of this valuable resource, the state of New Mexico and many citizens and environmental groups have sought to prevent development.  Photo of aplomado falcon in Chihuahuan desert by Kent Winchester from The Fat Finch Bird Brain Blog.

EXCERPT: New Mexico Wilderness Association (NWMA) argues that BLM failed to comply with § 7(a)(2) of the ESA, which requires all federal agencies to formally consult with the federal wildlife agencies to "insure that any gency actionis not  likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2) …  At the time of BLM's issuance of the Final EIS, the Falcon was listed as an endangered species, to which § 7(a)(2) applied. See Determination of Northern Aplomado Falcon to Be an Endangered Species, 51 Fed.Reg. at 6686-88; see also 16 U.S.C. § 1532(6) (defining the term "endangered species"), § 1533(a) (empowering the Secretary of the Interior to "determine whether any species is an endangered species"). Since the promulgation of the reintroduction rule, the Falcon population in the plan area falls under § 10(j) of the ESA, applicable to populations which are artificially introduced into an area outside the naturally existing range of a species. These populations are classified as "experimental." 16 U.S.C. § 1539(j); Establishment of Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42298. The ESA provides that nonessential experimental populations outside the National Park and National Wildlife Refuge system are treated as "proposed to be listed" rather than endangered or threatened. § 1539(j)(2)(C); 50 C.F.R. § 17.83(a). As discussed, the § 7(a)(2) formal consultation process applies only to species listed as threatened or endangered and not to species that are merely proposed for listing….

In order for the federal courts to exercise jurisdiction, Article III of the Constitution requires that the controversy between the parties remain live throughout all stages of litigation. United States v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir.2002). "A federal court has no power to give opinions upon moot questions or declare principles of law which cannot affect the matter in issue in the case before it." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997)...

The presence of these birds makes it a practical impossibility for FWS to reverse reintroduction because an actual experimental population of Falcons now exists in the area at issue. Thus, FWS cannot voluntarily reclassify the Falcon population in the area as "endangered" and thus revive plaintiffs' ESA challenge. We have before us an example of the rare case where it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693.

Accordingly, NMWA's ESA challenge to the consultation process between BLM and FWS regarding the Northern Aplomado Falcon is moot.

KEITHINKING: Although BLM won the battle over the ESA issue, it lost the case, and the 10th Circuit invalidated the NEPA analysis.  P.S.  Sorry, don't know why it took me so long to post this one.  

FWS designates critical habitat for Alabama Sturgeon

06/03/2009

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74 Fed. Reg. 26488 / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations
DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi); Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Alabama sturgeon (Scaphirhynchus suttkusi) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 524 kilometers (326 miles) of river fall within the boundaries of the critical habitat designation. The critical habitat includes portions of the Alabama and Cahaba Rivers in Autauga, Baldwin, Bibb, Clarke, Dallas, Lowndes, Monroe, Perry, and Wilcox Counties, in Alabama.

AlabamaSturgeonFrozen.jpg
Sturgeon is the common name used for this hard to find, large, bony-plated, primitive fish in the family Acipenseridae which typically grows slowly and matures late in life. The Alabama sturgeon (Scaphirhynchus suttkusi) is the smallest of all the North American sturgeons, typically weighing only 1 to 2 kilograms (2 to 4 pounds) at maturity. The head is broad and flattened shovellike at the snout.   The species is so rare that State and Federal scientists have been using cryopreservation.  Photo from DruidCityOnline and Video from Outdoor Alabama.  See also U.S. Fish and Wildlife Alabama Ecological Services Field Station.

EXCERPT: Flows in the Alabama River are heavily influenced by upstream releases from Alabama Power Company and U.S. Army Corps of Engineers (USACE) hydropower projects, and riverine habitats are fragmented by Claiborne and Millers Ferry Locks and Dams. This 386-kilometer (240-mile) stretch of the Alabama River, along with the lower Cahaba River, represents the last remaining viable habitat for the sturgeon...  

PRIMARY CONSTITUENT ELEMENTS (PCEs) FOR THE ALABAMA STURGEON.  Under the Act and its implementing regulations, we are required to identify the physical and biological features (PCEs) laid out in the appropriate quantity and spatial arrangement within the geographical area known to be occupied by the Alabama sturgeon at the time of listing that are essential to its conservation and which may require special management considerations or protections. Based on the above needs and our current knowledge of the life history, biology, and ecology of the species, we have determined that Alabama sturgeon’s PCEs are:
   1. A flow regime (i.e., the magnitude, frequency, duration, seasonality of discharge over time) necessary to maintain all life stages of the species in the riverine environment, including migration,  breeding site selection, resting, larval development, and protection of cool water refuges (i.e., tributaries).
   2. River channel with stable sand and gravel river bottoms, and bedrock walls, including associated mussel beds.
   3. Limestone outcrops and cut limestone banks, large gravel or cobble such as that found around channel training devices, and bedrock channel walls that provide riverine spawning sites with substrates suitable for egg deposition and development.
   4. Long sections of free-flowing water to allow spawning migrations and development of embryos and larvae.
   5. Water temperature not exceeding 32 °C (90 °F); dissolved oxygen levels not less than 5 mg/L (5 ppm), except under extreme conditions due to natural causes or downstream of existing hydroelectric impoundments, where it can range from 5 mg/L to 4 mg/L (5 ppm to 4 ppm); and pH (a measure of acidity) within the range of 6.0 to 8.5.

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

06/03/2009

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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.”

Speculation on Species and Ms. Sotomayor

05/27/2009

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A potential Supreme Court Justice has been nominated, so let the wild speculation begin.  How might Sonia Sotomayor change the highest court?  Will she declare the Endangered Species Act unconstitutional?  Indeed, for all the talk about “legal philosophy,” David Brooks and Gail Collins opine that the whole debate really is about policy, including whether a new justice will let the federal government keep protecting endangered species.  See New York Times blog.  No one really knows, but still the ink flows.  

Grist says Ms. Sotomayor has a small but solid record on environmental rulings, further quoting EarthJustice President Tripp Van Noppen to say that “This is the best Supreme Court nomination in many years.”   Skinny Moose says there’s not a lot of information out there, but based on the few morsels that do exist, Legal Planet thinks that “environmental issues are unlikely to loom large in the confirmation battle” because in a Second Circuit environmental case, Ms. Sotomayor said EPA could consider whether benefits were grossly disproportional to costs (a ruling deemed an environmentalist defeat.)

KEITHINKING: I’ll join the speculators, because, as even Ms. Sotomayor recognized, in her much criticized legal education presentation, courts are engaged in the "percolation" of policy.  IMO, Ms. Sotomayor would be unlikely to find the ESA unconstitutional.  In U.S. v. Giordano, Ms. Sotomayor rejected a commerce clause based effort to limit Congress’s regulatory power, holding (in a criminal case) that a national telephone network was an instrumentality of interstate commerce, even though a particular fact-pattern occurred only in an intrastate context.  So even if Pacific Legal Foundation reaches the Supreme Court with their constitutional challenge of the ESA and argument that the delta smelt is a purely intrastate species, Ms. Sotomayor is probably a vote against them.  (Nod to Sive, Paget and Reisel LLC)

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Photo of President Obama, Ms. Sotomayor, and Vice Pres. Biden by Pete Souza (5/26/09) available from The White House.

Noting human-induced threats, NOAA proposes 4(d) rule to protect threatened green sturgeon population from take

05/21/2009

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74 Fed. Reg. 23822 / Vol. 74, No. 97 / Thursday, May 21, 2009

DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 223 / Endangered and Threatened Wildlife and Plants: Proposed Rulemaking to Establish Take Prohibitions for the Threatened Southern Distinct Population Segment of North American Green Sturgeon

ACTION: Proposed rule; request for comments; notice of availability of a draft environmental assessment.

SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the Secretary of Commerce (Secretary) is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. This proposed ESA 4(d) rule represents the regulations that we, the National Marine Fisheries Service (NMFS), believe necessary and advisable to conserve the threatened Southern Distinct Population Segment of North American green sturgeon (Acipenser medirostris; hereafter Southern DPS). We propose to apply the prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G) for the Southern DPS, and we highlight specific categories of activities that are likely to result in take of Southern DPS fish. We do not find it necessary and advisable to apply the take prohibitions to certain categories of activities that contribute to conserving the Southern DPS. We also propose a variety of methods by which take of the Southern DPS may be authorized. We announce the availability of a draft environmental assessment (EA) that analyzes the environmental impacts of promulgating these proposed 4(d) regulations for the Southern DPS. Finally, we solicit comments regarding the draft EA and this proposed rule.

DATES: Comments regarding the proposed rule and supporting documents may be sent to the appropriate address or fax number (see ADDRESSES), no later than 5 p.m. Pacific Standard Time on July 20, 2009. A public hearing will be held promptly if any person so requests by July 6, 2009.

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Green sturgeon have persisted for millions of years through cycles of naturally occurring perturbations that have likely presented short- and long-term challenges to the species’ survival. They are among the largest and longest living species found in freshwater, living up to 70 years and weighing up to 350 pounds. NOAA concluded that the threatened Southern DPS of North American green sturgeon is currently at risk of extinction primarily because of human-induced ‘‘takes’’ involving elimination of freshwater spawning habitat, degradation of freshwater and estuarine habitat quality, water diversions, fishing, and other causes. Therefore, NOAA further concluded that extending the take prohibitions to the Southern DPS is necessary and advisable. Photo by Daniel Gotschall from Environmental Protection Information Center

KEITHINKING: Poaching for caviar and recreational sportfishing remain significant threats to the green sturgeon, making a prohibition against take a necessity for protecting this ancient species.

FWS announces recovery plan for short-tailed albatross, initiates 5-year status review

05/20/2009

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74 Fed. Reg. 23739 / Vol. 74, No. 96 / Wednesday, May 20, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; Short-Tailed Albatross (Phoebastria albatrus): Initiation of 5-Year Status Review; Availability of Final Recovery Plan

ACTION: Notice of availability of final recovery plan; initiation of 5-year status review and request for information.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of our final recovery plan for and the initiation of a 5-year status review for the short-tailed albatross(Phoebastria albatrus), a bird species listed as endangered under the Endangered Species Act of 1973, as amended (Act). Our recovery plan describes the status, current management, recovery objectives and criteria, and specific actions needed to enable us to reclassify the short-tailed albatross from endangered to threatened, or from threatened to delisted. It also includes criteria that would justify reclassifying the species from threatened back to endangered. We conduct 5-year reviews to ensure that our classification of each species as threatened or endangered on the List of Endangered and Threatened Wildlife and Plants is accurate. We request any new information on this species that may have a bearing on its classification as endangered. Based on the results of this 5-year review, we will make a finding on whether this species is properly classified under the Act. DATES: To allow us adequate time to conduct our 5-year review, we are requesting that you  submit your information no later than July 20, 2009.

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Albatrosses are amongst the largest of flying birds, and are highly efficient in the air, using dynamic soaring and slope soaring to cover great distances with little exertion.  Numbering about 2,400 individuals in 2008, the short-tailed albatross is a bird found in the North Pacific, primarily along the east coast of Japan and Russia, where it is currently threatened by volcanic activity, extreme weather, small population size, a limited number of breeding sites, contamination by oil and other pollutants, and commercial fishery bycatch. Key recommendations for immediate action, as described in the recovery plan, are: (1) Formation of new breeding colonies at safe locations on Torishima and in the Bonin Islands; (2) stabilization of existing breeding habitat on Torishima Island; and (3) reduction of seabird bycatch in all North Pacific fisheries that may take this species.  Photo and some caption information from Wikipedia.

Ninth Circuit rejects FWS decision not to list the flat-tailed horned lizard

05/19/2009

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Tucson Herpetological Society v. Salazar, No. 07-16641, D.C. No. CV 04-0075 NVW (9th Cir. May 18, 2009)

INTRO: Conservation organizations and individual biologists (collectively “Plaintiffs”) contend that the Secretary of the Interior’s (the “Secretary”) decision to withdraw a rule proposing that the flat-tailed horned lizard (the “lizard”) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (“ESA” or the “Act”), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. 706. They appeal from the district court’s order granting summary judgment in favor of the Secretary.  We reverse in part and remand.

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The flat-tailed horned lizard is “a small, cryptically colored iguanid . . . that is restricted to flats and valleys of the western Sonoran desert.” 58 Fed. Reg. 62,624, 62,625 (Nov. 29, 1993). Its natural habitat stretches across parts of southern California, southwestern Arizona, and northern Mexico.  Agricultural and urban development have resulted in fragmentation of the lizard’s remaining habitat. Fragmentation creates isolated subpopulations that, because of their reduced size, have an increased probability of extinction.  Photo from the Arizona FWS Ecological Field Services Office.

FACTUAL AND PROCEDURAL BACKGROUND: The Secretary first proposed listing the lizard as threatened in 1993, citing documented and anticipated population declines.  For the next 16 years, the species has been the subject of repeated rulemaking efforts, including a 1997, 2003 and 2006 withdrawal of the listing, and judicial review, including cases in 1997, 2003, 2005, and 2007.  In its rulemaking efforts, FWS stated that it relied on population studies to conclude that the lizard “is persisting in the vast majority of its range.” further reporting that “information concerning population dynamics of flat-tailed horned lizard populations is limited and inconclusive.”

EXCERPT: If the science on population size and trends is underdeveloped and unclear, the Secretary cannot reasonably infer that the absence of evidence of population decline equates to evidence of persistence. The absence of conclusive evidence of persistence, standing alone, without persuasive evidence of widespread decline, may not be enough to establish that the Secretary must list the lizard as threatened or endangered. See Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 21-22 (D.D.C. 2001) (holding that the ESA does not require listing “simply because the agency is unable to rule out factors that could contribute to a population decline”); cf. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that when examining decisions made under conditions of scientific uncertainty “a reviewing court must generally be at its most deferential”). But this is a different case. The Secretary affirmatively relies on ambiguous studies as evidence of persistence (i.e., stable and viable populations), and in turn argues that this “evidence” of persistence satisfies Defenders’ mandate and proves that the lizard’s lost range is insignificant for purposes of the ESA. This conclusion is unreasonable. The studies do not lead to the conclusion that the lizard persists in a substantial portion of its range, and therefore cannot support the Secretary’s conclusion.  The Secretary’s erroneous reliance on lizard persistence, however, does not end our inquiry...

We thus must determine whether the Secretary’s stated reasons — after setting aside the erroneous persistence finding — would have persuaded him that the lizard’s lost historical range is not significant. The Secretary’s conclusion that the lizard’s lost range holds no critical genetic value for the species finds some support in the record, as does his determination that much of the lizard’s lost historical range was converted to other uses decades ago and is thus not recoverable. Neither reason is entirely dependent on lizard persistence. Nonetheless, the 2006 withdrawal repeatedly refers to lizard persistence as persuasive evidence that the species’ lost historical range is not significant. The Secretary offers persistence as both an independent, and indeed primary, basis for
discounting the importance of lost range, and as support for several other key conclusions. Because a reliance on the lizard’s persistence throughout most of its current range cuts to “the heart of the agency’s analysis,” Bondholders Comm., 289 F. Supp. at 440, we cannot readily say that the erroneous finding clearly had no bearing on the Secretary’s ultimate decision to withdraw the proposed listing. On remand, the Secretary may be persuaded that, absent reliable evidence of population persistence, the lizard’s lost historical range is indeed significant.

KEITHINKING: The FWS decision not to list the species certainly had flaws, including an absence of information, and flawed survey data, this opinion gives FWS no deference at all.  Indeed, the opinion noted that entirely new counting methods are now in place, and that FWS did have some evidentiary support for its decision.  But the Ninth Circuit disregarded the expertise of FWS, and reversed anyway.  In the Ninth Circuit, it sometimes seems that the precautionary principle is the governing philosophy.  While appropriate, perhaps, for biologists and policy makers, when this approach is embraced by jurists, it leads to ugly charges of judicial activism, as expressed in the dissent by Judge Noonan, who took the rest of the the panel to task:

     The legal system does not confide the definitive judgment to the agency entrusted with enforcement of the law but subjects that judgment first to the challenges of the nongovernmental organizations and then to the supervision of judges who are not expert in the scientific matters at stake and not familiar with the species whose survival is at stake. As if this interplay of governmental and private groups did not create room for tension, misunderstandings, and passionate disagreement, the problems in this case have been exacerbated by the simple absence of information.
     How many flattailed horned lizards are there? No one knows the answer to that question. Nor does anyone know how many lizards disappeared when portions of their range disappeared. It is supposed that a diminution in range correlates with a diminution in lizards. This hypothesis is plausible. It has not been shown to be probable. Yet the case turns on what measures are necessary to keep this unknown population in existence. The court concludes that the Secretary erred in finding that the lizard has not lost a significant portions of its range. The old method of counting lizards is  out. A new method has not been tried very much. It’s anybody’s guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary’s conclusion impacted by over-reliance on fragmenting evidence of the lizard’s persistence; so the court decides to give the Secretary another crack at the problem. If the Secretary does not know what the lizard population was to begin with, or what it was in 1993, or what it is now in May 2009, how will he know if it is increasing, staying the same, or declining?
     A style of judging, familiar to readers of the old English reports, characterizes the judge as dubitante. That is probably the most accurate term for me, which leads me to concur in the majority opinion insofar as it rejects the contentions of the Tucson Herpetological Society and to dissent from the remand whose command to the Secretary of the Interior is, Guess again.
 

FWS says coaster brook trout FWS declines to list coaster brook trout

05/19/2009

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74 Fed. Reg. 23388 / Vol. 74, No. 95 / Tuesday, May 19, 2009

DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Coaster Brook Trout

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 coaster brook trout (Salvelinus fontinalis) as endangered under the Endangered Species Act of 1973, as amended (Act). The petition also asked that critical habitat be designated for the species. After review of all available scientific and commercial information, we find that the coaster brook trout is not a listable entity under the Act, and therefore, listing is not warranted. We ask the public to continue to submit to us any new information that becomes available concerning the taxonomy, biology, ecology, and status of coaster brook trout and to support cooperative conservation of coaster brook trout within its historical range in the Great Lakes.

EXCERPT: DPS Conclusion-Upper Great Lakes All Brook Trout Population Segment. On the basis of the best available information, we conclude that the all-brook-trout population segment in the Upper Great Lakes is discrete due to marked separation as a consequence of physical, ecological, physiological, or behavioral factors according to the 1996 DPS Policy. However, on the basis of an evaluation of brook trout in the Great Lakes relative to the four significance elements of the 1996 DPS Policy, we conclude that this discrete population segment is not significant to the taxon to which it belongs, and therefore, does not qualify as a DPS under 1996 policy. As such, we find that population of brook trout in the Great Lakes basin is not a listable entity under the Act...  We find that, based on the genetic information currently available, the brook trout in the upper Great Lakes, including all life forms, do not differ markedly from other populations of the species in their genetic characteristics (such as exhibiting unique alleles or a proportion of genetic variability beyond the norm of distribution) such that they should be considered biologically or ecologically significant based simply on genetic characteristics. They do not show any more genetic distinctiveness in comparison to the remainder of the taxon than other populations demonstrate. With the additional consideration that the authority to list DPSs be used ''sparingly,'' we conclude that this population segment of brook trout does not meet the significance element of this factor...  Although we find that population segments analyzed above are not listable entities, we found enough information concerning the diversity, habitats, population structure, threats, and trends of the native brook trout in its entire range to initiate a range-wide assessment that will enable us to better understand the status of the native brook trout across the range of species. Completing a range-wide assessment will allow us to better evaluate if any population would meet the elements of the DPS policy or constitute an SPR of the taxon. We will also continue to assess the status of and threats to both the upper Great Lakes and Salmon Trout River/South Shore Lake Superior populations of the coaster brook trout.

CoasterBrookTroutCA.jpg
The brook trout exhibits remarkable phenotypic plasticity across its natural range. This plasticity allows it to thrive in a variety of environments, from cold subarctic regions, through temperate zones and in southern refugia in eastern North America. Although primarily a stream-dwelling species, brook trout also occupy inland lakes and coastal waters. The brook trout’s dispersal subsequent to receding glaciation, and separation into isolated breeding stocks in diverse habitats subject to an array of natural and man-made influences have all contributed to this variability.  Indeed, the historical range of native brook trout extends along much of the United States, including portions of Iowa, Illinois, Ohio, Minnesota, Michigan, Wisconsin, New York, New Hampshire, Vermont, Maine, Massachusetts, Pennsylvania, New Jersey, Maryland, Virginia, West Virginia, North Carolina, South Carolina, Tennessee, and Georgia.  The fish is also found thoughout Canada, as demonstrated by the photo above from the Ontario Ministry of Natural Resources.

KEITHINKING: The FWS significance analysis includes a four-part evaluation, applied to each of the the discrete populations of brook trout considered in this Federal Register Notice.  Specifically, FWS considered: (1) Significance Evidence of the Persistence of the Discrete Population Segment in an Ecological Setting That Is Unique for the Taxon; (2) Evidence That Loss of the Population Segment Would Result in a Significant Gap in the Range of the Taxon; (3) Evidence That the Population Segment Represents the Only Surviving Natural Occurrence of a Taxon That May Be More Abundant Elsewhere as an Introduced Population Outside Its Historical Range; (4) Evidence That the Discrete Population Segment Differs Markedly in Its Genetic Characteristics From Other Populations of the Species.  In addition, FWS undertakes a separate analysis of whether a species is ''in danger of extinction throughout all or a significant portion of its range.''  The agency decisions regarding "significance" necessitate a substantial degree of judgment, which in turn frequently leads to controversy.  However, when the judgment call is tied to analysis of genetic factors, it can prove difficult for a federal judge to discern who is right or wrong, and thus, the doctrine of judicial deference can prove especially "significant" in these circumstances.
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NOAA seeks comment on Atlantic sea scallop fishery chain mat rule designed to protect sea turtles

05/19/2009

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74 Fed. Reg. 20667 / Vol. 74, No. 85 / Tuesday, May 5, 2009 / DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Parts 222 and 223 / Endangered and Threatened Wildlife; Sea Turtle Conservation

ACTION: Proposed rule; request for comments.

SUMMARY: The National Marine Fisheries Service (NMFS) currently requires the use of chain-mat modified dredge gear in the Atlantic sea scallop fishery south of 41°9.0′ North latitude from May 1 through November 30 each year. This gear is necessary to help reduce mortality and injury to endangered and threatened sea turtles captured in this fishery and to conserve sea turtles listed under the Endangered Species Act (ESA). This proposed action would make minor modifications to the current requirements by clarifying where on the dredge the chain mat should be hung; by excluding the sweep from the requirement that the side of each opening in the chain mat be less than or equal to 14 inches (35.5 cm); and by adding definitions of the sweep and the diamonds, which are terms used to describe parts of the scallop dredge gear. Any incidental take of threatened sea turtles in Atlantic sea scallop dredge gear in compliance with the gear modification requirements and all other applicable requirements will be exempted from the ESA prohibition against takes. NMFS is requesting public comment on this action, the focus of which is the minor modifications described here. NMFS is not accepting public comment on the existing chain mat requirements through this proposed rule. DATES: Comments on the proposed rule must be received by 5 p.m. EST on June 4, 2009.

NOTEWORTHY LINKS:

FWS revises piping plover critical habitat boundaries in Texas

05/19/2009

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74 Fed. Reg. 23476 / Vol. 74, No. 95 / Tuesday, May 19, 2009

DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in Texas

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the wintering population of the piping plover (Charadrius melodus) in 18 specific units in Texas under the Endangered Species Act of 1973, as amended (Act). In total, approximately 139,029 acres (56,263 hectares) fall within the boundaries of the revised critical habitat designation. The revised critical habitat is located in Cameron, Willacy, Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and Brazoria Counties, Texas. Other previously designated critical habitat for the wintering piping plover in Texas or elsewhere in the United States remains unaffected.

EXCERPT: The Texas General Land Office (GLO) filed suit on March 20, 2006, challenging our designation of 19 units of critical habitat along the Texas coast (Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 22, 23, 27, 28, 31, 32, and 33). In a July 26, 2006, stipulated settlement agreement and court order, the court vacated and remanded the designation for reconsideration (Texas General Land Office v. U.S. Department of the Interior, et al., No. 06-CV-00032 (S.D. Tex.). This rule addresses only the court-vacated and remanded units (the 19 units referenced above).

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Data concerning the wintering population of the piping plover found along the Texas Gulf Coast indicate that wintering piping plovers are found on barrier islands, especially in the mud flats (nearly flat areas made up of mud), sand flats (nearly flat areas made up of sand), algal flats (nearly flat areas with a layer of algae growing on a moist mud or sand substrate), and washover passes (areas
where breaks in the sand dunes result in an inlet).  Photo from Padre Island National Seashore.

KEITHINKING: Squarely addressing the uncertainties raised regarding the proper boundaries of piping plover critical habitat in Texas, FWS obtained more data.  "If there was a question as to whether a piping plover was reported from an area two or more times between 1997 and 2007, Ecological Services field office biologists made a site visit during the wintering season at the appropriate tidal range to confirm presence." According to the Federal Register announcement, all revised critical habitat units in Texas are within areas that FWS determined were
occupied at the time of listing, and that contain the PCEs in the appropriate spatial arrangement needed to support life history functions essential for the conservation of the species.

Court of International Trade says no to jurisdiction over salmon dispute, but notes ability to hear future cases

05/19/2009

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Salmon Spawning and Recovery Alliance v. U.S., No. 06-00191, Slip Op. 09-40 (C.I.T., May 13, 2009)(Judith M. Barzilay, Judge)

     SUMMARY: The action filed by Plaintiffs Salmon Spawning & Recovery Alliance et. al. against Defendant United States appears anew before the court on remand from the Federal Circuit. Specifically, the mandate directs the court to determine whether (1) a claim made pursuant only to Section 7(a)(2) of the Endangered Species Act (“ESA”) falls within the exclusive jurisdiction of the U.S. Court of International Trade (“CIT”) under 28 U.S.C. 1581(i)(3) or 1581(i)(4); and (2) the CIT’s broad residual jurisdiction encompassed in 1581(i) conflicts with Section 11 of the ESA...  the court finds that (1) a Section 7(a)(2) claim, on its own, fails to invoke this Court’s subject matter jurisdiction under 1581(i) and that (2) the citizen-suit provision of the ESA, Section 11, and 1581(i) are not in conflict.  While there is no doubt that all parties involved wish for the survival of the Puget Sound, Lower Columbia River, and Snake River fall-run Chinook Salmon, this Court is not the appropriate venue to address Plaintiffs’ complaint as it lacks subject matter jurisdiction over a stand-alone Section 7(a)(2) claim under both 1581(i)(3) and 1581(i)(4).

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The United States Court of International Trade is located in the Federal Plaza of downtown Manhattan, near the Brooklyn Bridge-City Hall subway station.

     FACTUAL BACKGROUND: Twenty-six populations of West Coast salmon and steelhead are listed by the National Marine Fisheries Service as threatened or endangered under the ESA. 50 C.F.R. 223.102, 224.101 (listing threatened and endangered salmon species, respectively). Protection is also afforded to certain hatchery-raised salmon. 223.203(a). Customs has authored certain regulations that prohibit the importation of protected salmon. 19 C.F.R. 12.26(g)(1). Despite these vigilant efforts, however, when some of the threatened or endangered salmon species swim north from the United States into Canadian waters, many are killed before they can return to U.S. rivers to spawn. Some of these dead salmon are ultimately imported into the United States by commercial shippers and American sport fishermen, arguably in violation of Section 9 of the ESA.  

     PROCEDURAL HISTORY: In November 2005, Plaintiffs filed this action in the U.S. District Court for the Western District of Washington.  That Court decided to transfer the action to the CIT.  In March 2007, the CIT dismissed Plaintiffs’ claims for lack of subject matter jurisdiction.  The Federal Circuit affirmed the court’s dismissal of Plaintiffs’ Section 9 claim, specifically noting that an agency’s decision to implement or enforce certain provisions of the ESA are not reviewable under either the APA or Section 11 of the ESA. (See prior ESA blawg.)

     OPINION RE: Sec. 1581 JURISDICTION: Importantly, the Court will not have jurisdiction under 1581(i)(3) in the absence of a law providing for an embargo. See Friedman v. Kantor, 21 CIT 901, 904, 977 F. Supp. 1242, 1246 (1997). “Merely because the action involves issues of international trade” does not mean that jurisdiction is available under 1581(i)(3). Friedman, 21 CIT at 904, 977 F. Supp. at 1246. An embargo or other quantitative restrictions falling under 1581(i)(3) is defined as “a governmentally imposed quantitative restriction – of zero – on the importation of merchandise.” K Mart Corp., 485 U.S. at 185. That restriction must be more than a mere “condition of importation.” Id. at 189. Additionally, “an importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might . . . enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right.” Id. at 185.

     Section 7(a)(2), plainly sets forth the necessary communications that must take place between various executive agencies. 1536(a)(2). “These consultation requirements of Section 7 are designed to make certain that every federal agency takes whatever actions are necessary to ensure the survival of each endangered and threatened species.” Salmon III, 550 F.3d at 1132 (quotations & citations omitted). At most, Section 7(a)(2), in certain settings, may involve issues of international trade. In those circumstances, the interagency consultations are one step removed from any final agency action imposing a condition of importation. That a law in limited circumstances touches upon international trade law issues and concerns conditions of importation is insufficient to invoke the Court’s jurisdiction.

     OPINION RE: ESA Sec. 11 CONFLICTS:  The seeming conflict between the Section 11 and   1581(i) is nothing more than a paper tiger, and the concinnity is apparent when the two are read together. The ESA allows for courts other than the district courts to entertain claims made pursuant to the ESA. Section 11 states that courts enumerated in 28 U.S.C. 460 shall also have jurisdiction over any actions arising under the ESA. 1540(c). Section 460 of Title 28 of the United States Code notes that judicial authority extends to “each court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, and to the judges thereof.” 28 U.S.C.   460(a). The CIT is such a court, possessing “all the powers in law and equity of . . . a district court of the United States.” 28 U.S.C. 1585. Thus, the CIT, as a court vested with the power of a district court, fits within the definition of courts enumerated by Section 460 as holding jurisdiction over claims made pursuant to the ESA.  Moreover, no conflict arises here because   1581(i) is the more specific and later enacted statute, and as such takes priority over the general grant of jurisdiction to the distriction courts in Section 11. Two important tools of statutory construction are that “the specific governs the general,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (citation omitted), and that Congress is presumed to legislate with knowledge of then existing law.

Kentucky federal court rejects need for Forest Service to reinitiate consultation on Indiana Bats, notes absence of White Nose Syndrome

05/18/2009

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Heartwood, Inc. v. Agpaoa et. al., Civ. No.  07-114-KSF, 2009 U.S. Dist. LEXIS 36667  (E.D. Kent. April 27, 2009)
       
 BACKGROUND: The denial of a preliminary injunction in this case was previously discussed in ESA blawg (May 2008).  Pursuant to the Endangered Species Act, the issue was whether the U.S. Fish & Wildlife Service needed to reinitiate consultation on a proposed U.S. Forest Service Project, the The Ice Storm Recovery Project.  The project involves: (1) cutting of severely damaged and downed trees on 12, 859 acres, of which one-third, or 4,845 acres, would involve removal of the cut trees in commercial timber harvest; (2) control of non-native invasive plants on 1,000 acres by digging up and removing them and by selectively applying herbicides; and (3) restoration of 35 woodland ponds that had served as bat habitat before the storm. According to the Forest Service, the project will facilitate regrowth of trees that were not damaged in the storm as well as growth of new trees, and is an important measure to protect damaged forest stands from gypsy moth defoliation.  FWS issued a biological opinion in December 2005 and it determined that implementation of the Ice Storm Recovery Project was not likely to jeopardize the continued existence of the Indiana bat.  Specifically, FWS concluded that the project would be conducted in a manner such that "suitable roosting habitat is retained within the salvage/sanitation project areas and is generally not considered to be a limiting factor for the Indiana Bat on the DBNF." FWS further noted that "the Morehead Ranger District has no known occurrence of taking an Indiana bat during tree felling or associated operations."  Heartwood, however, argued that an outbreak of White Nose Syndrome (WNS) among Indiana Bat populations necessitated a new biological opinion.

OPINION RE: ESA:  In this case, Forest Service has determined that the new information - an outbreak of WNS in the Northeast and other states - does not trigger reinitiation of consultation with FWS. The administrative record reveals that the Forest Service, FWS, and other agencies are currently monitoring the impact of WNS on bat species, including the Indiana bat.  Nothing in the record before the Forest Service, however, reveals any impact associated with WNS within the Ice Storm Recovery Project. In fact, the USFS reports a range wide increase of 10.0% in Indiana bat populations from 2005 to 2007. Survey data from the Kentucky Division of Fish and Wildlife revealed no signs of WNS in 13,600 bats.  Moreover, the Forest Service's latest field survey in and around the project area found no Indiana bats...  Thus, while WNS continues to affect other national forests, there is no new information which shows any impacts on the Indiana bat ... that are greater than previously considered by the Forest Service. As the Ninth Circuit has stated, "we do not hold that every modification of or uncertainty in a complex and lengthy project requires the agency to stop and reinitiate consultation." Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987). Rather, the Ninth Circuit concluded that reinitiation was required in that case only (1) because the expert agency, FWS, had requested reinitiation, and (2) because a land transfer upon which the biological opinion had relied had fallen apart...   In addition, there is nothing in the record showing that the FWS has requested reinitiation or otherwise disagrees with the Forest Service's determination that the new information does not trigger reinitiation. Given its independent duty to request reinitiation when warranted, the FWS presumably will speak up if conditions requiring reinitiation arise. Accordingly, the Court concludes that the Forest Service's explanation provides a rational basis for its decision not to reinitiate formal consultation and is neither arbitrary nor capricious.

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Photo above of little brown bats with White Nose Syndrome, by Nancy Heaslip of the New York Dept. of Environmental Conservation, available from FWS Northeast Region.  In contrast, photo below by Merlin Tuttle of Indiana bats in Kentucky's Bat Cave State Nature Preserve.  
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Ninth Circuit upholds FWS listing of Central California tiger salamander (in unpublished opinion)

05/18/2009

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Home Builders Ass'n of Northern California v. U.S. Fish & Wildlife Service, No. 07-17147 (9th Cir. April 10, 2009) (Not for publication...)

OPINION: Home Builders Association of Northern California, California Building Industry Association, and Building Industry Legal Defense Foundation (collectively "Home Builders") appeal the district court's order granting the United States Fish and Wildlife Service's ("FWS") and the Center for Biological Diversity's ("the Center") joint motion for summary judgment on the Home Builders's action under the Administrative Procedure Act ("APA") against the FWS. The Home Builders's action challenged the FWS's listing of the Central California tiger salamander as "threatened" under the Endangered Species Act ("ESA").

The FWS adequately established a rational connection between the facts it found and its listing decision. The FWS made express findings based on the best available scientific data about future habitat loss and concluded, in its scientific judgment, that this future habitat loss made it likely that the Central California tiger salamander will become in danger of extinction throughout all or a significant portion of its range in the foreseeable future. The FWS is not required to state a threshold level of habitat loss that is necessary to find a species is threatened. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1081-82 (9th Cir.2006). N1Thus, the district court did not err by granting the FWS's and Center's motion for summary judgment.

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Photo of California Tiger Salamander by C. Johnson from FWS.

Federal Court in Utah upholds incidental take of golf course prairie dog population

05/18/2009

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Wildearth Guardians v. U.S. Fish & Wildlife Service, No. 2:07-cv-00837 CW (D. Utah, April 22, 2009)

INTRODUCTION.  In this action, Plaintiffs challenge two permits issued by the United States Fish and Wildlife Service under the Endangered Species Act ("ESA"). The permits authorize Cedar City, Utah and the Paiute Indian Tribe to live trap and relocate Utah Prairie Dogs that are damaging the Cedar City municipal golf course and adjacent lands owned by the Paiute Tribe...  This matter is before the court to review the administrative action of the Service. WildEarth Guardians seeks revocation of the permits on the basis that (1) the Service failed to include a numeric take limit on the permits themselves, and (2) the Service's actions were arbitrary and capricious when it found that the Habitat Conservation Plan ("HCP") sufficiently minimizes and mitigates the take's impact.

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FACTUAL BACKGROUND.  Unfortunately, when Utah Prairie Dogs (photo above by Jess Alford from WildEarth Guardians) have been relocated from private land to public land, historically only about ten percent have survived.  Through the translocation program, however, the number of "prairie dog colonies on public land has increased" over the years...  Iron County, Utah has an HCP, which allows the permanent or non-permanent take of a certain number of Utah Prairie Dogs per year. The Golf Course was permitted to use the nonpermanent take provisions of the Iron County HCP in an attempt to control the prairie dog population on the Golf Course...  The Golf Course colony is unnaturally large due to artificial conditions, such as an "unlimited food supply and lack of predators." Because of development around the Golf Course, the colony is "fragmented and becoming more isolated."  The colony therefore does not contribute to genetic mixing of the species... The Service determined that the proposed HCP was "not likely to jeopardize the continued existence of the Utah Prairie Dog, and is not likely to destroy or adversely modify designated critical habitat."  In making this determination, the Service considered the mitigation factors proposed by the applicants. It particular, Iron County purchased "a 303 acre parcel of land surrounded by BLM lands ."  It then agreed, upon issuance of the permits, to put this land into a conservation easement for purposes of preserving a permanent prairie dog habitat.  The land is known as Wild Pea Hollow and it is adjacent to other public lands that support a prairie dog colony.  This land provides the potential for genetic mixing between colonies.

OPINION AND ANALYSIS RE: INCIDENTAL TAKE STATEMENT:  WildEarth Guardians asserts the take permits must be vacated because the Service failed to include a take limit on the permits... (But) It is well established that population counts for Utah Prairie Dogs are generally unreliable and experience confirms that such counts at the Golf Course and Paiute lands have been unreliable. Thus, where the intent was to relocate the entire population, including a specific take limit would have added a complication and unnecessary restriction should the site population exceed the take limit. The Service did provide an estimate in the incidental take statement on the number of prairie dogs to be moved. That is all that could reasonably be required given the uncertainty of the population count and the objective to move the entire colony. While under other circumstances it may be appropriate to require a take limit on a permit, the court holds that under the circumstances of this case, the Service was not obligated to include a take amount on the permits.

OPINION AND ANALYSIS RE: MITIGATION AND MINIMIZATION: WildEarth Guardians further contends that the HCP does not sufficiently minimize or mitigate the impact on the Utah Prairie Dogs. As stated above, the Service must find that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of he taking."  What constitutes the "maximum extent practicable" is not defined in statute. The Service, however, has interpreted the statute to mean mitigation that "is rationally related to the level of take under the plan," and courts have agreed with this interpretation. In conjunction with this finding, the Service also must determine that the take "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."  ... Wild Pea Hollow is a natural habitat that provides possible connectivity between prairie dog colonies and the potential for genetic mixing. It also fulfills two main objectives under the Recovery Plan, namely, establishing prairie dogs on public lands and restoring suitable habitat on public lands. Based on these considerations, the Service concluded the HCP adequately minimized and mitigated the impact on the prairie dogs. The court rejected WildEarth Guardians claims: (1) rejecting claims regarding a Failure to Use Buried Fences, the Court held that "the Service articulated a rational connection between the facts found and the decision made." (2) Rejecting claims regarding an alleged Failure to Establish a Viable Habitat Before Translocation, the Court held that the Service did not make a clear error in judgment."  Finally, (3) rejecting claims regarding Inadequate Translocation Procedures, the Court held that the permit conditions were adequate, and "the Service's decision was not arbitrary and capricious."

KEITHINKING: Because they authorize the take -- even death -- of endangered and threatened species, HCPs will always be controversial.  This case reflects the traditional conflict between species habitat and human land use, but in the less traditional (but increasingly common!) context of public recreation and a golf course.  As usual, the issue is fact specific, and the nature of the mitigation in this case, specifically, the creation of conservation lands and habitat adjacent to other public lands that already support a prairie dog colony, and that allow potential for genetic mixing between colonies, is especially significant.  See news stories, including the Deseret News,  

FWS proposes downlisting of Oregon chub to threatened status, based on improving population trends

05/18/2009

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74 Fed. Reg. 22870 / Vol. 74, No. 93 / Friday, May 15, 2009

DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Proposed Rule To Reclassify the Oregon Chub (Oregonichthys crameri) From Endangered to Threatened

ACTION: Proposed rule.

SUMMARY: Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to reclassify the Oregon chub (Oregonichthys crameri) from endangered to threatened. This proposal is based on a thorough review of the best available scientific data, which indicate that the species’ status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range. We seek information, data, and comments from the public regarding the Oregon chub and this proposal. DATES: We will accept comments received on or before July 14, 2009. Public hearing requests must be received by June 29, 2009.

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A 5-year review of the Oregon chub’s status was completed in February 2008; this review concluded that the Oregon chub’s status had substantially improved since listing, and that the Oregon chub  no longer met the definition of an endangered species, but does meet the definition of a threatened species, under the Act. The review, therefore, recommended that the Oregon chub should be downlisted from endangered to threatened.

Interior says no change in polar bear rule; new legislation, not the ESA, should regulate climate change

05/08/2009

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Earlier today, the U.S. Department of Interior announced that it would retain the Section 4(d) conservation rule for polar bears previously adopted in the waning days of the Bush Administration, see ESA blawg (Dec. 2008).  But in a press release, DOI emphasized the need for comprehensive energy and climate change legislation.  “To see the polar bear’s habitat melting and an iconic species threatened is an environmental tragedy of the modern age,” Secretary Ken Salazar said. “This administration is fully committed to the protection and recovery of the polar bear. I have reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species.”

The decision sounded, in some respects, like an oil industry soundbite, based on a quote of American Petroleum Institute President Jack Gerard in the Wall Street Journal.  "The Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions," he said.  Predictably, many environmental voices screamed, including Greenpeace Campaigner Ryan Patterson who told theWall Street Journal "This decision was a litmus test for the Obama administration's commitment to science-based development of global-warming policy.  They failed miserably," The Center for Biological Diversity took an equally strident position.  "Thank God for the courts," they told the The New York Times.  But other environmentalists took a more moderate position, including John Kostyack, of National Wildlife Federation, who conceded to The Washington Post that it would have been difficult to tackle a massive problem like greenhouse gases through the endangered species bureaucracy.  Still, litigation, as usual, was inevitable, as noted on the pages of this ESA blawg, and this one too.  

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Photo from biolaw a blog on law and the life sciences.  

KEITHINKING: As I've written for over a year on the pages of this ESA blawg, the polar bear debate has served as a policy proxy for the lack of a national climate change policy.  In this respect, today's decision seems somewhat reasonable.  Put simply, given the current state of the science, it would prove impossible for FWS to use the ESA in the manner anticipated by groups like CBD.  The analysis is too attenuated.  For example, in a biological opinion on the polar bear, FWS would first need to determine the degree to which a proposed federal action on a power plant in the Southeast might affect climate change, and then calculate much the climate change might affect a polar bear, ultimately reaching a decision as to whether the power plant would, or would not, jeopardize the continued existence of the polar bear.  In some respects, this is like law school, and torts 101.  Defendants car struck Plaintiff, who sustains non-fatal injuries.  On route to the hospital, Plaintiff dies in the ambulance when an earthquake causes a poorly constructed building to crush the vehicle.  Is Defendant responsible for the wrongful death?  Yes, there is a degree of "but for" causation, and yes, even a link in the chain of causation...  but common sense says that the car crash didn't kill the Plaintiff, and the southeastern power plant didn't kill the polar bear.  

In my opinion, more action on polar bears, climate change, and greenhouse gas emissions is absolutely necessary and appropriate, and Congress should act.  Any other alternative is ugly.  If Congress does not act, or if CBD prevails and the current structure of the ESA becomes our only national tool for administering climate change policy, then the result will be that FWS (and NOAA) must declare jeopardy for every action that increases greenhouse gases, based on the potential affects to polar bears (and perhaps any other species struggling with the effects of climate change.)  So, while the thinkers at biolaw declared today The day the ESA died, I think that the opposite decision -- using the ESA as a climate change tool -- could also have marked the death of the ESA, in the form of a complete rewriting of the statute.  Either way, change is coming...  

11th Circuit largely deferential to FWS biological opinion in Everglades, but rejects habitat-based approach to incidental take statements

05/05/2009

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Miccosukee Tribe of Indians v. USA, No. 08-10799 (11th Cir. May 5, 2009)

REGIONAL CONTEXT: In 1948, the U.S. Army Corps of Engineers undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams…. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits the Cape Sable Seaside Sparrow against the Everglades Snail Kite, a hawk.  Kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates. Both birds are protected by the 1973 Endangered Species Act, 16 U.S.C. §1531 et seq. The Act outlaws the “take” of any endangered species.

STATUTORY BACKGROUND: The Endangered Species Act, Section 7(a)(2) requires every federal agency to ensure that its actions will not jeopardize the continued existence of any endangered species. 16 U.S.C. §1536(a)(2). To coordinate their efforts to comply with section 7(a)(2), the agencies involved, here the Army Corps of Engineers and the Fish & Wildlife Service, consult with each other…  If the proposed action would not jeopardize the species but still might result in incidental harm to it, the Service attaches to the biological opinion an incidental take statement establishing the terms and conditions under which the incidental take may occur. 50 C.F.R. § 402.14(i).

KEY FACTUAL BACKGROUND: In the early 1980s Congress authorized a restructuring of the Corps’ water management system in order to restore wildlife in the Everglades. Someone decided that the best way to figure out how to correct the unplanned environmental consequences was to undertake a series of trial-and-error tests… In 1995, under “Test 7,” the Corps began releasing large amounts of water through the S-12 gates…  In 1998, the Corps created an “Interim Structural and Operational Plan” that altered Test 7 by closing the gates during sparrow breeding season…  Between 1999 and 2002, the Corps and the Service consulted and developed the “Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow” (Interim Plan). During the same period, a regional drought cut the number of kites statewide in half, from 3,400 to 1,700 birds…  In 2002, the Corps then implemented the Interim Plan, which changed the S-12 water release schedule… Water began to back up north of the gates—in the kites’ critical habitat and on Miccosukee tribal land. Birds cannot sue, but a tribe can and this one did.  In November 2005 the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging its 2002 approval of the Interim Plan.  In November 2006 the Service issued another biological opinion… but it still found that the kite would not be jeopardized by allowing the Interim Plan to continue until 2010 or 2011 for the good of the sparrow.

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The Cape Sable seaside sparrow (picture above by  Lori Oberhofer from Everglades National Park) lives primarily in and around Everglades National Park. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels, needing favorable breeding conditions without long periods of interruption.  The Everglade Snail Kite (picture below from South Florida Water Management District), a type of hawk, lives in the marshes of Florida and Cuba.  Kites feed primarily on apple snails, which require periods of inundation to reproduce, but the birds nest in woody vegetation that dies off if that inundation lasts too long or if the water level goes too high. It is, in that respect, a Goldilocks kind of bird.  
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KEY RULINGS:  The Miccosukee Tribe launches a three-front assault on the 2006 biological opinion and the incidental take statement. The Tribe’s first contention is that the 2006 biological opinion is ‘not in accordance with law’ because it fails to follow proper procedures… The Tribe’s second contention is that the 2006 biological opinion is arbitrary and capricious because it arrives at conclusions that are counter to the scientific data in the record or are so implausible that they go beyond an acceptable difference of expert opinion... The tribe’s third contention is that the incidental take statement is deficient because it improperly quantifies incidental take in terms of habitat markers and fails to provide a meaningful trigger for re-consultation.

     HOLDING RE: IMPROPER PROCEDURES: The Tribe argues that the Service ignored a number of studies and scientists’ statements that show “alarming” and dramatic declines in the kite population. But the Tribe’s arguments do not hold water… While the 2006 biological opinion’s predictions do differ from those of some scientists who have studied the kite, the basic data is not in dispute and was taken into account by the Service when it drafted the opinion. That is all the Endangered Species Act requires the Service to do with the “best scientific and commercial data available.” 16 U.S.C. §1536(a)(2); Marsh, 490 U.S. at 377–78, 109 S. Ct. at 1861.
     The Tribe also contends that the legislative history of the Endangered Species Act demonstrates that Congress generally wished to “give the benefit of the doubt to the species.” H.R. Rep. No. 96-697, at 12 (1979) (Conf. Rep.), as reprinted in 1979 U.S.C.C.A.N. 2572, 2576. The Tribe argues that those nine words from the Joint Explanatory Statement of the Conference Committee, quoted in the House Conference Report, demand a presumption in favor of the species if the evidence is balanced between likely jeopardy and no jeopardy.  To begin with, we are reluctant to read into the words that Congress has enacted as law, words that it did not enact as law. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006)… Putting that reluctance aside for the time being, the context of the benefit of the doubt language in the conference report suggests only that agencies, including the Service, cannot hide behind uncertain scientific data to shirk their duties under the Act…
     Because the Tribe has not demonstrated that the Service failed to consider any major scientific work or any material fact when it rendered the 2006 biological opinion, we reject its procedural attack on the 2006 biological opinion.

     HOLDING RE: BIOP CONCLUSIONS:  The 2006 biological opinion concedes that the Interim Plan will continue to harm the kite habitat by flooding it…  The biological opinion acknowledges that the Interim Plan may also cause water levels to decline rapidly in kite habitat during the spring, threatening its nests.  However, the opinion concludes that “Degradation of designated critical habitat within WCA-3A is expected to continue under he Interim Plan but this is reversible with improved hydrologic conditions. No permanent loss of critical habitat is expected.”  …Evidently the Service is under the impression that flooding twenty percent of the kites’ critical habitat to a depth that kills the woody vegetation the bird likes to perch on, that drives off the apple snails it likes to eat, and that reduces its nesting success is not “adverse modification” of critical habitat within the meaning of the Act. The Service asserts that “no permanent loss of critical habitat is expected.” (emphasis added) But the Service does not cite, and we are unable to find, any decision holding that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification.” …  Whether short-term impacts on critical habitat amount to “adverse modification” depends to a large extent on the life cycle of the species. Some species may be eradicated if their habitats are negatively affected even for a relatively short time. Restoration of a habitat cannot resurrect the dead.
     Nevertheless… we limit our conclusion, of course, to the facts of this case. Those facts involve a long-term program for restoring the Everglades’ natural flow in a way that would cause temporary flooding of twenty percent of the critical habitat of a long-lived species of kite with a high adult survival rate and a wide range. The flooding is being done in an effort to avoid the extinction of an endangered sparrow in the area. The aim is to eventually restore the natural flow of the Everglades, a restoration which hopefully will benefit both endangered birds. In light of these facts, the Service’s determination in its 2006 biological opinion that the action will not jeopardize the kite or adversely modify its habitat within the meaning of the Endangered Species Act is not arbitrary and capricious.

     HOLDING RE: INCIDENTAL TAKE STATEMENT: The Tribe’s last contention is that the Fish & Wildlife Service’s incidental take statement is defective because it fails to specify, in numbers of birds, how much “take” is permissible. An incidental take statement may lawfully authorize harm to an endangered species as long as the statement sets a ‘trigger’ for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species. 50 C.F.R. § 402.14(i)(4)…  The Service’s “Final ESA Section 7 Consultation Handbook,” however, does provide guidance about how impact on the species may be measured… and it allows the Service to use, without specific justification, habitat impact measurements (also called “habitat markers”) to express take instead of using actual head counts of members of the species.  Legislative history recently led the Ninth Circuit to invalidate an incidental take statement. See Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1037 (9th Cir. 2007) (“Congress has clearly declared a preference for expressing take in numerical form, and an Incidental Take Statement that utilizes a surrogate easureinstead of a numerical cap on take must explain why it was impracticable to express a numerical measure of take.”)… We apply instead the rule that specific population data is required unless it is impractical. See Allen, 476 F.3d at 1037–38. The rule makes sense. The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.
     We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced.

KEITHINKING: Other noteworthy aspects of the decision include the distinguishing of Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)(suggesting that Congress intended “to give the benefit of the doubt to the species.”) by noting that Conner “does not suggest that there is any presumption in favor of the species if, as in this case, there is abundant data,” and the distinguishing of Rock Creek Alliance v. United States Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1008 (D. Mont. 2005) (“tie in the evidence should go to the species.”) as “based in part on significant scientific blunders by the Service.”  The 11th Circuit also showed judicial restraint, accepting the biological opinion’s conclusions regarding whether the agency actions might jeopardize snail kite populations.  However, the 11th Circuit was not deferential to an ESA policy handbook, and after a discussion of Chevron, Christensen, Mead, and Skidmore, refused to grant the Service's interpretation of the ESA (as expressed in its policy manual) Chevron deference, reaching a different conclusion based on the statute.  Specifically, the Court held, based on Chevron step one, that Congress had clearly spoken, giving different instructions as to the requirements of an incidental take statement.

ESA in the news: Obama reverses Bush, Wyoming and Alaska hope to reverse Obama, and other stories of fishermen, falcons, turtles, salmon and butterflies

05/01/2009

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President Obama is undoing the Bush administration’s anti-environmental legacy, says the New York Times.  Rejecting Bush’s arguments about “streamlining” the process, he repealed the changes to the ESA consultation process.  MSNBC weighed in too, noting that the agencies have not yet acted on an equally controversial polar bear rule.  Meanwhile, a Newsweek report anticipates many more decisions to list species as endangered or threatened.    Incredibly, since 2001, 94 percent of all new listings have been compelled by lawsuits or action initiated by the non-profit Center for Biological Diversity.

One of the species often at issue in litigation is the sage grouse, yet the overall sage grouse population is on the rise in Wyoming as part of the bird's cyclical trends, and the bird -- an indicator species of regional ecological health -- is benefiting from the state's sage grouse conservation plan, and voluntary conservation measures on private lands.  However, the Casper Star-Tribune reports that the U.S. Bureau of Land Management is not following the state plan, and continues to issue controversial oil and gas leases.  Wyoming residents remain nervous about the U.S. Fish & Wildlife Service’s ongoing evaluation of whether to list the sage grouse pursuant to the Endangered Species Act.  

Like their Wyoming counterparts, Alaskans are concerned about the potential impacts of ESA listing decisions on their local economy, and the State is suing the federal government over the decisions to list the polar bear as a threatened species, and the Cook Inlet beluga whale as endangered.  In fact, state lawmakers agreed to spend $1.25 million on litigation over the two listings, reports the New York Times green blog.  The reintroduction of an experimental population of wood bison has state residents equally nervous.  Still, the ESA coordinator for the Alaska Department of Fish & Game insists that his state really is conservation-minded.  “There’s this impression that the state doesn’t care about conservation, and I can assure you that we do.”

PolarBearSwimming.jpg
Photo of a polar bear swimming in open waters by Geoff York, World Wildlife Fund, published at WashingtonPost.com in anarticle entitled "Scientists Report Further Shrinking of Arctic Ice"

But on the MatterNetwork, ecojournalist Edward Humes has little patience for the Alaska's and Wyoming's arguments.  He argues that the ESA should be used to aggressively change human behavior and to confront the challenges of climate change, forcing us to shift to renewable energy in order to save species like the polar bear.  The current system, he says, is simply too expensive, and invisibly subsidized.  "It is now incumbent on the government to help put a gradual shift in motion by providing incentives and rewards for the clean and green, and penalties for the dirty and wasteful. We have the laws to begin this process."   Grist.org offers an equally insightful article on wolves, polar bears, and the realities of local and global politics and the ESA.  And a heartfelt editorial published in the Los Angeles Times, accomplished birdwatcher Ms. Olivia Gentile also praises the ESA, suggesting that everyone would feel a lure and love towards conservation if they just took a few moments to watch an urban peregrine falcon.  Until we banned DDT, humans nearly destroyed these and other bird species, and we need laws like the ESA to help us help them.  
 
While lofty ideas and debate abound, there were numerous stories about the ESA in practice too.  InsideBayArea.com reports that the San Francisco Recreation & Parks Department is debating what to do with Sharp Park, one of the premier affordable golf courses in Northern California, but also home to the San Francisco garter snake and California red-legged frog, both endangered species.  While compliance with the ESA might prove expensive in California, the failure to comply with the law could mean jail for a North Carolinian citizen who was indicted by a federal grand jury on charges of illegally importing, and attempting to import endangered and prohibited wildlife into the United States, and the Georgia based Daily Citizen reported that the ten endangered Asian Arowana fish in this case have a fair market value of about $25,000.   And Oregon voters will have to decide on their own whether to fund a habitat conservation plan for Fender’s blue butterfly (picture below from OregonState.edu) a creature once thought to be extinct, reports the Corvallis Gazette Times.  Under the terms of the HCP and proposed Incidental Take Permit, the county could do construction and maintenance activities that might damage any of the covered species on county-owned land, and in exchange, the county will minimize, mitigate and or replace any habitat loss by purchasing conservation easements from willing landowners in “blue zones” -- areas identified as actual or potential habitat for the Fender’s blue.

FendersBlueButterfly.jpg

The practical realities and economics of the ESA have been particularly intense this week for fishermen.  Maine officials have decided to call off this year's Atlantic salmon fishing season, after pressure from the federal government, reports MaineBiz.biz   The Salt Lake Tribune reported that rare, threatened greenback cutthroat trout were discovered in a small creek of the LaSal mountains, leading Utah wildlife officials to issue emergency regulations.  Sea turtles in the Gulf of Mexico need emergency protection too, says NOAA, as reported in the Mississippi Press.  This past week, the agency announced new fishery regulations, banning commercial longline fishing boats from the eastern half of the Gulf after concluding that the longline fishery was responsible for the deaths of nearly 1,000 turtles within a year and a half.  The emergency rule is likely to be followed by a broad-reaching summertime fishery closure.  See also Environment News Service.  And in Skagit County, Washington, the Bellingham Herald reports that salmon fishers like the Swinomish Tribe haven’t been able to fish like they used to, mostly because of the collapse of so many Puget Sound salmon populations.  Regional water management structures, including a local dike district’s new tide gates, prevented juvenile salmon from reaching their rearing habitat.  Addressing issues raised in recent litigation between the Swinomish Tribe sued and a local Dike District, Skagit County Dike District No. 22, the two groups became partners in a plan to restore 200 acres of estuary habitat in the Skagit delta, and submitted their plan to the federal judge.

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

04/28/2009

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

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

ESA in the News: lobbying, legislation and NOAA biological opinion with jeopardy finding on pesticides

04/23/2009

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An interesting article from the New York Times today about the potential use, or in some minds, abuse, of the Endangered Species Act as a tool to change federal climate change policy (or lack thereof).  On the one hand, the article notes that EPA issued a finding last week that "greenhouse gases threaten public health and welfare," see Greenwire story, and environmental advocates argue that EPA's conclusion should lead the Interior Department to repeal a Bush Administration rule that "explicitly exempted greenhouse gases from Endangered Species Act regulation."  On the other hand, the Interior Department may not agree, because "David Hayes, Obama's nominee to be Salazar's second-in-command, told senators during his confirmation hearing that the endangered species law was ill-suited for addressing climate change."  As another Interior spokesperson said: "We have zero legislative authority to regulate carbon emissions. That's just not what we do."

Meanwhile, a few blocks down on Constitution Avenue, species protection has re-emerged as a priority topic among legislators.  MongaBay notes that "The US House of Representatives passed today, the 39th Earth Day, two bills that would aid some of the world’s most embattled wildlife: the Great Cats and Rare Canids Act (H.R. 411) and the Crane Conservation Act (H.R. 388)."  And Gannett reports that the pet lobby has reacted, predictably, with fits over the "Nonnative Wildlife Invasion Prevention Act," because species deemed invasive by federal wildlife biologists would be barred from entering the country.  For some perspectives on why this bill -- or at a minimum, some form of pet industry regulation -- has become necessary, visit my "Exotic Consequences" article for PawTalk about how the invasion of pythons threatens endangered and other species in the Everglades.  Simply put, pet stores, and pet owners, simply cannot be trusted NOT to release their unwanted pythons, iguanas, and even piranhas into the environment.  Sure, it's not all pet stores, nor all pet owners.  But the irresponsibility of some is creating huge problems for everyone, so government intervention, and regulation, has become unavoidable.

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The invasion of exotic species in Florida has become such a problem that it is spawning new trapping enterprises by folks like the author of the Wildlife Removal Blog.

In other ESA news, a recent NOAA biological opinion looks like it could bring yet another layer of controversy to the region.  According to the Kitsap Sun, citing NOAA, "continued use of the pesticide carbaryl and two related chemicals could jeopardize the survival of salmon and steelhead populations throughout the Northwest."  As the biological opinion explains, the scope of this conclusion is significant:

"After reviewing the current status of California Coastal Chinook salmon, Central Valley springrun Chinook salmon, LCR Chinook salmon, Puget Sound Chinook salmon, Sacramento River winter-run Chinook salmon, Snake River fall-run Chinook salmon, Snake River spring/summerrun Chinook salmon, UCR spring-run Chinook salmon, Upper Willamette River Chinook salmon, Central California Coast coho salmon, LCR coho salmon, Southern Oregon and Northern Coastal California coho salmon, California Central Valley steelhead, Central California Coast steelhead, LCR steelhead, MCR steelhead, Puget Sound steelhead, Snake River Basin steelhead, South Central California coast steelhead, Southern California steelhead, UCR steelhead, and Upper Willamette River steelhead, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is NMFS’ Opinion that the registration of carbaryl and carbofuran is likely to jeopardize the continued existence of these endangered or threatened species."

Despite the jeopardy conclusion, NOAA does propose a Reasonable and Prudent Alternative that would allow continued use of the pesticides, with multiple limitations on the use of carbaryl, carbofuran, and methomyl: (1) Do not apply pesticide products within specified buffers of salmonid habitats; (2) Do not apply when wind speeds are greater than or equal to 10 mph; (3) do not apply pesticide products when soil moisture is at field capacity; (4) Report all incidents of fish mortality that occur within four days of application; and (5) EPA shall develop and implement a
NMFS-approved effectiveness monitoring plan for off-channel habitats with annual reports.

NOAA announces listing of three distinct population segments of Puget Sound rockfish

04/23/2009

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74 Fed. Reg. 18516 / Vol. 74, No. 77 / Thursday, April 23, 2009
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Parts 223 and 224 / Endangered and Threatened Wildlife and Plants: Proposed Endangered, Threatened, and Not Warranted Status for Distinct Population Segments of Rockfish in Puget Sound / ACTION: Proposed rule; 12–month petition finding; request for comments.

SUMMARY: We, the NMFS, have completed Endangered Species Act (ESA) status reviews for five species of rockfish (Sebastes spp.) occurring in Puget Sound, Washington, in response to a petition submitted by Mr. Sam Wright of Olympia, Washington, to list these species in Puget Sound as threatened or endangered species. (See prior ESA blawg posting.)   We reviewed best available scientific and commercial information on the status of these five stocks and considered whether they are in danger of extinction throughout all or a significant portion of their ranges, or are likely to become endangered within the foreseeable future throughout all or a significant portion of their ranges. For bocaccio (S. paucispinis), we have determined that the members of this species in the Georgia Basin are a distinct population segment (DPS) and are endangered throughout all of their range. We propose to list this bocaccio DPS as endangered. We have determined that yelloweye rockfish (S. ruberrimus) and canary rockfish (S. pinniger) in the Georgia Basin are DPSs and are likely to become endangered within the foreseeable future throughout all of their range. We propose to list the Georgia Basin DPSs of yelloweye and canary rockfish as threatened. We determined that populations of greenstriped rockfish (S. elongatus) and redstripe rockfish (S. proriger) occurring in Puget Sound Proper are DPSs but are not in danger of extinction throughout all or a significant portion of their ranges or likely to become so in the foreseeable future. We find that listing the greenstriped rockfish Puget Sound Proper DPS and the redstripe rockfish Puget Sound Proper DPS is not warranted at this time. Any protective regulations determined to be necessary and advisable for the conservation of threatened yelloweye and canary rockfish under ESA section 4(d) would be proposed in a subsequent Federal Register notice. We solicit information to inform these listing determinations and the development of proposed protective regulations and designation of critical habitat in the event these species are listed.
DATES: Comments on this proposal must be received by June 22, 2009. A public hearing will be held promptly if any person so requests by June 8, 2009. Notice of the location and time of any such hearing will be published in the Federal Register not less than 15 days before the hearing is held.

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Photo of the three life history stages of the yelloweye rockfish, from Rockfishproject.us.  Unlike most fishes, rockfishes have internal fertilization. They are viviparous (energy stored in the yolk, and give birth to live young).  As rockfish mature, they move from their shallower sites of recruitment to deeper portions of the reef.

SEE ALSO, NOAA press release,

ESA in the news: Happy Earth Day (?)

04/21/2009

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Media reports continue to warn of the steady march of climate change, with its alteration of habitat, and the threat of species extirpation or extinction.  RedOrbit noted the new book by University of California biologist Anthony Barnosky, "Heatstroke: Nature in an Age of Global Warming," wondering whether wilderness can remain natural.   ENN.com discussed climate change and the isolation of Rocky Mountain butterflies, David Suzuki commented that "Caring for caribou is a matter of urgency," and LiveScience.com writes about IPCC warnings of Earth's precarious future,  

Then again, don't tell the wolves that their habitat is contracting.  According to the Oregon-based News-Review, the Oregon Department of Fish and Wildlife confirmed that Oregon has wolves, "but we’re still waiting to see if they persist and if we will ever have a high number of wolves in the state.”  But elsewhere, like Montana, wolves still get shot, notes the Clark Fork Chronicle.

Speaking of shooting wolves, the same "people-first" logic that some western voices have applied to wolves was recently resurrected in a new direction this week.  Don't bother with the details of the Endangered Species Act when where are rattlesnakes involved, said George Frasher in the Beauregard Daily News.  "In the conflict between man and rattlesnakes, the eventual loser is the snake. That is the law of nature, which supercedes any law that can be enacted in any legislature."  But others disagree.  A Duluth editorial said Don’t weaken fish and wildlife’s ‘bill of rights’, and Bart King argued in the Atlanta Journal Constitution that we can’t afford to abuse Earth, or laws like the ESA, otherwise "the idea of celebrating Earth Day will seem like a cruel joke."

Despite Earth Day, the Bush administration's efforts last minute regulations altering the ESA consultation process remain on the books, Joe Scott reminded readers in the Seattle Times, "Salazar has until May 9 to undo one of Bush's 11th-hour and more regressive policies — one that would gut America's signature environmental law and the strongest tool we have to protect and restore our majestic plant and wildlife heritage."  Jake Richardson echoed the sentiments at PlanetSave.com, but relax, says Van Ness Feldman.  The Obama Administration is actively reviewing the ESA rule and on Monday, March 23, a California federal district court judge overseeing court challenges to the section 7 consultation rule "granted a 60-day stay in that proceeding at the request of the federal agencies. In their stay request, the federal agencies represented that the Obama Administration is examining and reconsidering the rule as directed by a March 3, 2009 presidential memorandum. Further, the federal agencies noted that, as a result of Section 429 of the recently enacted omnibus appropriations bill (Pub. L. No. 111-8), the section 7 consultation rule may be withdrawn without following notice and comment rulemaking under the Administrative Procedure Act, if such action is taken no later than May 10, 2009."  A Washington Post story and an AP story available in the Albany Times Union offered similar insights.  

As for the latest wave of lawsuits, the AP reports that WildEarth Guardians sued the U.S. Fish and Wildlife Service because it "failed to act on a petition seeking protection for two rare plants, a jackrabbit and a salamander found in the Southwest."  The Center for Biological Diversity filed suit, notes a San Diego paper, to force the U.S. Fish and Wildlife Service to provide that protection for the Hermes copper butterfly by declaring it a threatened or endangered species.  And the Jackson Hole News and Flathead Beacon report that more wolf litigation is expected.  Meanwhile, the Sacramento Delta litigation seems like it will never end.  Congressmen want more water for California farmers, says the Mercury News, and indybay.org notes that local Delta farmers are trying to stop the Bay Delta Conservation Plan, calling it "a thinly disguised process to build a peripheral canal and increase water exports out of the California Delta."

Oh, yeah, Happy Earth Day.

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Earth Day 2009 poster, designed by  Jan Martin Will, from the Earth Day Network.

FWS reduces critical habitat for Peninsular bighorn sheep DPS

04/14/2009

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74 Fed. Reg. 17288 / Vol. 74, No. 70 / Tuesday, April 14, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Peninsular Bighorn Sheep and Determination of a Distinct Population Segment of Desert Bighorn Sheep (Ovis canadensis nelsoni)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the Peninsular bighorn sheep, a distinct population segment (DPS) of desert bighorn sheep (Ovis canadensis nelsoni) occupying the Peninsular Ranges of Southern California, under the Endangered Species Act of 1973, as amended (Act). In total, approximately 376,938 acres (ac) (152,542 hectares (ha)) fall within the boundaries of the critical habitat designation. This revised designation of critical habitat for Peninsular bighorn sheep reduces the 2001 designation by approximately 467,959 ac (189,377 ha). The revised critical habitat is located in Riverside, San Diego, and Imperial Counties, California.

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Peninsular bighorn sheep inhabit dry, rocky, low-elevation desert slopes, canyons, and washes from the San Jacinto and Santa Rosa mountains near Palm Springs, California south into Baja California, Mexico.  The species is exposed to dangers including habitat reduction, automobile collisions, ingestion of poisonous ornamental plants, high predator densities, and parasites and disease. Photo and caption info from the Bighorn Institute.

EXCERPT: The areas identified in this final revised rule constitute a revision of the areas we proposed to designate as critical habitat for Peninsular bighorn sheep on October 10, 2007 (72 FR 57740). In light of substantial public comments and a revision of our criteria used to identify critical habitat, we reevaluated and included in this final rule three general areas that were not included in the 2007 proposed rule. These additions were announced in the NOA published in the Federal Register on August 26, 2008, (73 FR 50498), and include the following: Areas along the eastern edge of the Santa Rosa Mountains in Units 2A and 2B; parts of the San Ysidro, Pinyon, and Vallecito Mountains in Unit 2B; and a portion of the Jacumba Mountains in Unit 3 (approximately 36,240 ac (14,666 ha)). The reduction in total area from the 2007 proposed critical habitat designation is primarily the result of habitat exclusions under section 4(b)(2) of the Act.

KEITHINKING: The announcement includes a lengthy section with public comments and responses, but in the end, a substantial reduction in critical habitat results -- over a 50% reduction -- largely due to the exclusion of tribal lands, and lands with HCPs or other approved management plans.  According to the Silicon Valley Mercury News, the Center for Biological Diversity intends to challenge the agency action.  The Federal Register announcement is also noteworthy for its explanation of FWS' views on critical habitat, and the agency opinion that Habitat Conservation Planning is a more effective tool for protection of endangered and threatened species:
We believe that in many instances the regulatory benefit of critical habitat is minimal when compared to the conservation benefit that can be achieved through implementing Habitat Conservation Plans (HCPs) under section 10 of the Act or other habitat management plans. The conservation achieved through such plans is typically greater than what we achieve through multiple site-by-site, project-by-project, section 7(a)(2) consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7(a)(2) consultations only commit Federal agencies to preventing adverse modification of critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed action. Thus, implementation of an HCP or management plan that incorporates enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation.

NOAA seeks comments on critical habitat designation for Cook Inlet Beluga Whales

04/14/2009

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DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration / 50 CFR Part 226 / Endangered and Threatened Species: Advance Notice of Proposed Rulemaking to Designate Critical Habitat for Cook Inlet Beluga Whales

SUMMARY: We, the National Marine Fisheries Service (NMFS), will be designating critical habitat for the endangered Cook Inlet beluga whale (Delphinapterus leucas) under the Endangered Species Act (ESA). The designation will involve areas within Cook Inlet, Alaska. This advance notice of proposed rulemaking (ANPR) identifies issues for consideration and evaluation and solicits comments.  

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The beluga whale is a northern hemisphere species, ranging primarily over the Arctic Ocean and some adjoining seas, where it inhabits fjords, estuaries, and shallow water in Arctic and subarctic oceans.  Belugas generally occur in shallow, coastal waters, and while some populations make long seasonal migrations, Cook Inlet belugas reside in Cook Inlet year round.  There is obvious and repeated use of certain habitats by Cook Inlet beluga whales. Intensive aerial abundance surveys, and satellite tagging studies, document  high use of Knik Arm, Turnagain Arm, Chickaloon Bay and the Susitna River delta areas of the upper Inlet.  Photo from NOAA.

LINKS: For recent species status information, consult NOAA's 2008 Status Review and Extinction Risk Assessment of Cook Inlet Belugas and the 2008 supplement.

FWS rejects petition to list Longfin smelt population in Sacramento Delta

04/09/2009

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74 Fed. Reg. 16169 / Vol. 74, No. 67 / Thursday, April 9, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus thaleichthys) as Endangered / 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 San Francisco Bay-Delta population of the longfin smelt (Spirinchus thaleichthys) as endangered with critical habitat under the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we find that the San Francisco Bay-Delta population of the longfin smelt does not meet our definition of a distinct population segment (DPS), as identified in our DPS policy (61 FR 4721, February 7, 1996). As a result, listing the species as a DPS is not warranted. However, we are initiating a status assessment of the longfin smelt, and we solicit information on the status of the species range wide.

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The longfin smelt is a euryhaline (tolerant of variable salinities) pelagic (lives in open water) fish that inhabits various depths of the water column depending on the individual’s life stage.  The historical and current range of the longfin smelt is from Alaska southward to the San Francisco Bay-Delta in California.  According to the California Department of Fish and Game, the species is affected by regional water management, and an overall effect of high freshwater outflow through the Delta appears to be an increase in the amount and quality of nursery habitat, increased feeding opportunities, and reduced mortality for the longfin smelt.

KEITHINKING: After a very preliminary review of the petition to list the longfin smelt, FWS found that listing may be warranted.  See May 2008 ESAblawg.  Here, upon further review, FWS concluded that listing was not warranted, and more information was needed for the species, rangewide.  In considering whether the longfin smelt populations in the Delta were a distinct population segment, FWS analyzed two major factors.  
     First, the DPS analysis considers whether the population is discrete, focusing on geographic isolation.  (For example, Central Park squirrels are a discrete population.)  FWS found that the longfin smelt populations in the Delta were not discrete because it is likely that they be able to swim elsewhere in the Pacific.  In reaching this conclusion, FWS rejected the conflicted published opinion of University of California professor Peter B. Moyle, and FWS also acknowledged that “The distance that longfin smelt could swim or be transported from the San Francisco Bay-Delta is unknown.”
     Second, the DPS analysis considers whether the population is significant, often focusing on genetics and morphology.  (Central Park squirrels are not genetically or morphologically significant -- yet?)  FWS concluded that “There is also no indication that longfin smelt differ morphologically between the San Francisco Bay-Delta population and other populations…  Additional study should provide more information on the distribution of genetic variation within the species and determine if longfin smelt from  different locations are intermixing.”  However, FWS also recognized that “Because of its distinctive characteristics, the San Francisco Bay-Delta population of longfin smelt was once described as a species separate from more northern populations. (Moyle 2002, p. 235).”
     In contrast, under state law, the California Department of Fish & Game recommended that Longfin smelt be classified as “threatened” and that additional protections were needed.   As noted in prior ESAblawg postings, the Delta smelt is a huge source of ESA related conflicts with regional water managers, and the listing of the longfin smelt would further complicate problems for the Central Valley Project and State Water Project in the Sacramento region.
     Yup.  We're thinking the same thing.  More litigation coming soon.

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FWS undertakes 5-year review on 13 Southeastern plants, including the Key tree cactus

04/09/2009

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74 Fed. Reg. 16230 / Vol. 74, No. 67 / Thursday, April 9, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; 5-Year Status Reviews of 13 Southeastern Plant Species

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are initiating 5-year status reviews of 13 species under the Endangered Species Act of 1973, as amended (Act). We conduct these reviews to ensure that the classification of species as threatened or endangered on the Lists of Endangered and Threatened Wildlife and Plants is accurate. A 5-year review is an assessment of the best scientific and commercial data available at the time of the review. DATES: To allow us adequate time to conduct these reviews, we must receive your comments or information on or before June 8, 2009.

KeyTreeCactus1.gif
The Key Tree-cactus Pilosocereus robinii produces large white flowers and a purplish-red fruit. It is a member of the rare and declining tropical hammock communities on Upper and Lower Matecumbe, and Long and Big Pine keys. Populations formerly found on Key West and Windley and Boca Chica keys are believed to be extirpated. As early as 1917, this cactus was on the edge of being extinct as a result of habitat destruction. The Key tree-cactus was listed as endangered because of severe population declines caused by destruction of its habitat for commercial and residential development.  Info from FWS and photo from Center for Plant Conservation  

FWS revises draft recovery plan for Rio Grande silvery minnow

04/09/2009

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74 Fed. Reg. 16232 / Vol. 74, No. 67 / Thursday, April 9, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; Recovery Plan for the Rio Grande Silvery Minnow (Hybognathus amarus)/ Notice of document availability: draft amendment and supplement to the 2007 Draft revised recovery plan for Rio Grande Silvery Minnow.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of an amendment and supplement to our draft revised Recovery Plan (Recovery Plan) for the Rio Grande silvery minnow (Hybognathus amarus) under the Endangered Species Act of 1973, as amended (Act). The species currently inhabits the Rio Grande in New Mexico and has been introduced to the Big Bend area of Texas. This amendment and supplement consist of revised draft recovery criteria and a population viability assessment (PVA, or draft Appendix H), respectively. We invite public review and comment on these documents. After review we will incorporate the documents into the Final Recovery Plan (the PVA as Appendix H).

RioGrandeSilveryMinnowRoberson.jpg
One of America’s most critically endangered species, the Rio Grande silvery minnow (Hybognathus amarus), began to face a brighter future on December 17, 2008, with the release of more than 430,000 hatchery-raised fish into former habitat in the Big Bend region of west Texas.  The U.S. Fish and Wildlife Service plans to release additional fish there over the next four years to establish an experimental, self-sustaining wild population in the lower Rio Grande.  Photo (by Aimee Roberson) and caption info from FWS.

Distinct population segments of gray wolves removed from ESA protection in Western Great Lakes and Northern Rockies

04/05/2009

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74 Fed. Reg. 15070 / Vol. 74, No. 62 / Thursday, April 2, 2009 / Department of the Interior Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment; and To Revise the List of Endangered and Threatened Wildlife; Final Rules

SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS) identify the Western Great Lakes (WGL) Distinct Population Segment (DPS) of the gray wolf (Canis lupus). The geographic extent of this DPS includes all of Minnesota, Wisconsin, and Michigan; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the  northwestern portion of Ohio. We also revise the List of Endangered and Threatened Wildlife established under the Endangered Species Act of 1973, as amended (Act) by removing gray wolves within the WGL DPS. We are taking these actions because available data indicate that this DPS no longer meets the definitions of threatened or endangered under the Act. The threats have been reduced or eliminated, as evidenced by a population that is stable or increasing in Minnesota, Wisconsin, and Michigan, and greatly exceeds the numerical recovery criteria established in its recovery plan. Completed State wolf management plans will provide adequate protection and management of the WGL DPS after this revision of the listing. This final rule removes this DPS from the lists of Threatened and Endangered Wildlife, removes the currently designated critical habitat for the gray wolf in Minnesota and Michigan, and removes the current special regulations for gray wolves in Minnesota. On April 16, 2007, three parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service’s February 8, 2007 (72 FR 6052), identification and delisting of the WGL DPS. On September 29, 2008, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs (Humane Society of the United States v. Kempthorne, No. 1:07–CV–00677  (D.D.C.). In that ruling the court vacated and remanded the Service’s application of the February 8, 2007 (72 FR 6052), final delisting rule for the WGL DPS of the gray wolf. On remand, the Service was directed to provide an explanation as to how simultaneously identifying and delisting a DPS is consistent with the Act’s text, structure, policy objectives, legislative history, and any relevant judicial interpretations. This final rule addresses the September 29, 2008, court ruling.

***

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Photo of Yellowstone wolf pack from Wyoming Game and Fish Department available from the University of Wyoming.   Overall, the wolf population estimate for 2008 is slightly higher than that for 2007, indicating a declining rate of increase as suitable habitat becomes increasingly saturated with resident wolf packs.  However, in Wyoming, and most notably Yellowstone National Park, wolf populations have not increased, with 171 wolves in 2004, a decline thereafter, and a rebound to 171 wolves in 2008.  FWS indiciated that the decline could be because (1) Highly suitable habitat in YNP was saturated with wolf packs; (2) conflict among packs appeared to limit
population density; (3) fewer elk occur in YNP than when reintroduction took place; and (4) a suspected 2005 outbreak of a canine disease.

***

74 Fed. Reg. 15123 / Vol. 74, No. 62 /Thursday, April 2, 2009 / DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife

SUMMARY: Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), identify a distinct population segment (DPS) of the gray wolf (Canis lupus) in the Northern Rocky Mountains (NRM) of the United States and revise the List of Endangered and Threatened Wildlife by removing gray wolves within NRM DPS boundaries, except in Wyoming. The NRM gray wolf DPS encompasses the eastern one-third of Washington and Oregon, a small part of north-central Utah, and all of Montana, Idaho, and Wyoming. Our current estimate for 2008 indicates the NRM DPS contains approximately 1,639 wolves (491 in Montana; 846 in Idaho; 302 in Wyoming) in 95 breeding pairs (34 in Montana; 39 in Idaho; 22 in Wyoming). These numbers are about 5 times higher than the minimum population recovery goal and 3 times higher than the minimum breeding pair recovery goal. The end of 2008 will mark the ninth consecutive year the population has exceeded our numeric and distributional recovery goals. The States of Montana and Idaho have adopted State laws, management plans, and regulations that meet the requirements of the Act and will conserve a recovered wolf population into the foreseeable future. In our proposed rule (72 FR 6106, February 8, 2007), we noted that removing the Act’s protections in Wyoming was dependant upon the State’s wolf law (W.S. 11–6– 302 et seq. and 23–1–101, et seq. in House Bill 0213) and wolf management plan adequately conserving Wyoming’s portion of a recovered NRM wolf population. In light of the July 18, 2008, U.S. District Court order, we reexamined Wyoming law, its management plans and implementing regulations, and now determine they are not adequate regulatory mechanisms for the purposes of the Act. We determine that the best scientific and commercial data available demonstrates that (1) the NRM DPS is not threatened or endangered throughout ‘‘all’’ of its range (i.e., not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms. Thus, this final rule removes the Act’s protections throughout the NRM DPS except for Wyoming. Wolves in Wyoming will continue to be regulated as a nonessential, experimental population per 50 CFR 17.84(i) and (n).

***

KEITHINKING: the management of wolf populations remains one of the most controversial aspects of Endangered Species Act implementation.   These announcements continue the historic trend.  According to the Times of the Internet, The Humane Society of the United States says it will challenge the federal decision to remove the gray wolf from its prior ESA protections.  Defenders of Wildlife called the decision "tragic."  But Conservation Magazine, citing an article in Molecular Ecology, notes that Great Lakes wolves bred and mixed genes with coyotes and other wolves, so science may support the designation of Great Lakes wolf populations as a distinct population segment.  See also, prior ESA blawg.  Notably, some local media sources have characterized the decision as simply shifting wolf management responsibilities to state entities.  See Duluth News Tribune.  Montana, Idaho and Washington wolf populations are up, for example, but Yellowstone populations are down.  See The Kitsap Sun.  As a result, Wyoming was not among the empowered states, and the gray wolf stayed listed there.  Guess what?  Wyoming is filing suit.   Notably, FWS previously found the 2003 Wyoming legislation and plan inadequate to conserve Wyoming’s share of a recovered NRM gray wolf population.  Wyoming sued FWS over the issue, and lost in the District and Circuit Courts.  360 F. Supp 2nd 1214 (D. Wyo. 2005); 442 F. 3rd 1262 (10th Cir. 2006).  In 2008, Wyoming declined to sign the Genetics Memorandum of Understanding, and in 2009, FWS found that Wyoming’s regulatory  framework did not meet the requirements of the Act, and the state does not have an FWS-approved wolf management plan.

Safe Harbor Agreement with expanded habitat for Palos Verdes blue butterfly could ease burden on U.S. Navy

04/05/2009

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74 Fed. Reg. 15516 / Vol. 74, No. 64 / Monday, April 6, 2009 / DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / Proposed Safe Harbor Agreement for the Deane Dana Friendship Community Regional Park in Los Angeles County, CA / Notice of Availability

SUMMARY: The County of Los Angeles, Department of Parks and Recreation (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an Enhancement of Survival permit pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended. The Service is considering the issuance of a 30-year permit to the Applicant that would authorize take of the federally endangered Palos Verdes blue butterfly (Glaucopsyche lygdamus palosverdesensis; ‘‘PVB’’) through a Safe Harbor Agreement (SHA). The purpose of this SHA is for the Applicant to restore a minimum of 8 acres of habitat for the PVB through the implementation of a habitat restoration plan at Deane Dana Friendship Community Regional Park (Friendship Park), a known historic location for this species. Friendship Park is owned by the County of Los Angeles. The Applicant seeks to provide for the long-term recovery of PVB in the wild through the restoration of suitable habitat that can accommodate passive or active reintroduction of the site from the U.S. Navy Defense Fuel Support Point, San Pedro (DFSP) or other extant locations that may be present within the historic range of the species. The Service has made a preliminary determination that the proposed SHA and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this preliminary determination is contained in an Environmental Action Statement. We request comments from the public on the permit application and the Environmental Action Statement, both of which are available for review. The permit application includes the proposed SHA. The SHA describes the proposed project and the measures that the Applicant would undertake to avoid and minimize take of the covered species.

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According to the U.S. Fish & Wildlife Service's 5-year Review of the status of the Palos Verdes blue butterfly (PVB) (completed in 2008), the only area currently known to be consistently occupied by the PVB includes the Defense Fuel Support, San Pedro, and the former Palos Verdes Navy housing area.  See also, SDSU.   FWS says this Safe Harbor Agreement provides for the restoration, enhancement, and management of coastal sage scrub habitat containing hostplants suitable for the PVB within Friendship Park. Photo from Wikipedia

FWS announces 5-year reviews on 42 species in California and Nevada

03/29/2009

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74 Fed. Reg. 12878 / Vol. 74, No. 56 / Wednesday, March 25, 2009 / DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Reviews of 58 Species in California, Nevada, Arizona, and Utah; Availability of Completed 5-Year Reviews in California and Nevada

SUMMARY: We, the U.S. Fish and Wildlife Service, initiate 5-year reviews for 58 species under the Endangered Species Act of 1973, as amended (Act). We request any new information on these species that may have a bearing on their classification as endangered or threatened (see Table 1 below). Based on the results of these 5-year reviews, we will make a finding on whether these species are properly classified under the Act. We also indicate in this notice 42 5-year reviews we completed for species in California and Nevada in mid to late Fiscal Year (FY) 2008. Reviews we completed for 16 species in early FY 2008 were indicated in our previous initiation notice published in the Federal Register on March 5, 2008. See prior ESA blawg.

FWS finds yellow-billed loon listing warranted, rangewide, but precluded by higher priorities

03/29/2009

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74 Fed. Reg. 12932 / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Department of the Interior / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Yellow-Billed Loon as Threatened or Endangered; Proposed Rules

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list  the yellow-billed loon (Gavia adamsii) as threatened or endangered, with critical habitat, under the Endangered Species Act of 1973, as amended (Act). The petitioners provided two listing options for consideration by the Service: (1) Listing the yellow-billed loon throughout its range, or (2) listing the United States population of the yellowbilled loon as a Distinct Population Segment (DPS). After a review of the best available scientific and commercial information, we have determined that listing the yellow-billed loon rangewide under the Act is warranted but precluded by other higher priority listing actions.

YellowBilledLoonUSGS.jpg
The yellow-billed loon (Order Gaviiformes, Family Gaviidae) is one of the largest of the five loon species and similar in appearance to the common loon (Gavia immer).  It is a migratory bird, and forages underwater for fish and aquatic invertebrates..  Solitary pairs breed on lakes in the arctic tundra of the United States, Russia, and Canada from June to September. During the remainder of the year the species winters in more southern coastal waters of the Pacific Ocean and the Norway and North Seas.  Photo from USGS, caption info from the Federal Register announcement.

BACKGROUND: On April 5, 2004, we received a petition from the Center for Biological Diversity...  On December 19, 2007, the Center for Biological Diversity (CBD) filed a complaint alleging that the Service had failed to make a timely 12-month finding on the petition, as required under section 4 of the ESA. Consistent with a settlement agreement reached between the Service and CBD, the Court ordered the Service to submit this 12- month finding for publication to the Federal Register by February 15, 2009. Because the Service later received substantial new information to be evaluated and considered in the 12- month finding, we subsequently sought and were granted a one month extension with a new deadline of March 16, 2009. This notice constitutes a 12-month finding for the petition to list the yellow-billed loon as threatened or endangered.

KEITHINKING: For better or for worse, CBD and other environmental groups remain the essential driving force in the listing of species by FWS (and to a lesser NOAA).  Recognizing that trend, ESA blawg is now making CBD's twitter posts readily available in the left hand column of this blawg, immediately following the Google Gadget with ESA In The News.

Dollars, sense, and the Endangered Species Act

03/24/2009

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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.

FWS reconsidering proposed rule on Columbia River DPS of coastal cutthroat trout

03/24/2009

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74 Fed. Reg. 12297 (Vol. 74, No. 55 /Tuesday, March 24, 2009) DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Determination of Significant Portion of the Range of Marine and Estuarine Areas of the Southwestern Washington/Columbia River Distinct Population Segment of Coastal Cutthroat Trout (Oncorhynchus clarki clarki)
ACTION: Proposed rule; reopening of comment period.
SUMMARY: On July 5, 2002, we, the U.S. Fish and Wildlife Service (Service), published a withdrawal of the proposed rule to list the Southwestern Washington/Columbia River distinct population segment (DPS) of the coastal cutthroat trout (Oncorhynchus clarki clarki) as threatened under the Endangered Species Act of 1973, as amended (Act). As a result of litigation, we are now reconsidering our withdrawal of the proposed rule with specific regard to the question of whether the marine and estuarine areas may constitute a significant portion of the range of the Southwestern Washington/Columbia River DPS of coastal cutthroat trout, and if so, whether that portion is threatened or endangered. We hereby notify the public, other concerned governmental agencies, the scientific community, industry, and any other interested party of our request for information, data, or comments on the marine and estuarine areas of the Southwestern Washington/ Columbia River DPS of coastal cutthroat trout, with particular regard to whether these areas constitute a significant portion of the range of the DPS under the Act, and if so, whether the subspecies is threatened or endangered in those areas. DATES: We will accept information received on or before April 23, 2009.  
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KEITHINKING: see related ESA blawg on 9th Circuit decision, and FWS internal powerpoint and independent analysis on the prior DPS decision.

With red knots on the candidate list, Third Circuit declares emergency listing dispute moot

03/18/2009

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American Bird Conservancy v. Kempthorne, No. 07-4609 (March 11, 2009)

BACKGROUND: In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (“FWS”) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.  FWS formally responded to the petition when, on September 12, 2006, it published its Candidate Notice of Review in the Federal Register. See Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 71 Fed. Reg. 53,756(Sept. 12, 2006) (to be codified at 50 C.F.R. pt. 17). The CNOR concluded that the threats, in particular the modification of habitat through harvesting of horseshoe crabs to such an extent that it puts the viability of the knot at substantial risk, are of a high magnitude, but are nonimminent because of reductions and restrictions on harvesting horseshoe crabs. Id. at 53,759. Accordingly, the FWS designated the listing of the red knot as warranted but precluded pursuant to 16 U.S.C. § 1533(b)(3)(B)(iii), and assigned the species a priority level of 6 on a scale of 1 to 12 (1 being the highest priority). Id.  Appellants persisted with their challenge to the denial of emergency rulemaking, an agency decision upheld by the District Court in New Jersey.  See ESA blawg.

EXCERPT: The mootness doctrine derives from Article III of the Constitution, which limits the “judicial Power” of the United States to the adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2; see Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007). “The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).

The only issue remaining in the complaint ... was the propriety of the FWS’s determination that an emergency listing of the red knot was not warranted. In the subsequent publication of the CNOR, however, the FWS concluded, after careful study and consideration of all possible factors, that listing of the red knot was, in fact, warranted but precluded by other listing priorities. Because appellants never sought to amend their complaint to contest in any way that conclusion, there is no issue for us to decide and no “meaningful relief” to award.  Appellants would have us reach back from the CNOR and declare the FWS’s denial of emergency rulemaking violative of the ESA based on the FWS’s consideration of what appellants allege to be improper factors. We will not do so. Instructive in this regard is Fund for Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005), in which the D.C. Circuit observed that “this sequence of events is analogous to the merger of a preliminary injunction into a permanent injunction, upon which ‘an appeal from the grant of the preliminary injunction becomes moot.’” 428 F.3d at 1064 (quoting Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999)) (second alteration in original); see also Save Our Springs Alliance v. Norton, 361 F. Supp. 2d 643, 648 (W.D. Tex. 2005).

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Red knot and horseshoe crab photo by William Dalton (c) (all rights reserved) from flickr.  Mr. Dalton also publishes a webpage at www.daltonphotos.com  The red knot (Calidris canutus rufa) is a medium-sized shorebird that undertakes an annual 30,000-kilometer migration from its wintering grounds in Patagonia and Tierra del Fuego to its breeding grounds in the high Arctic. Red knots begin their northern migration in February, and stop over in the Delaware Bay between late April and early June, coinciding with the spawning season of horseshoe crabs. There, the birds feed on horseshoe crab eggs in order to refuel for the final leg of their journey to the Arctic.  Surveys of the Delaware Bay region during recent spring migration seasons indicate a substantial decline in the red knot population. It is believed that the reduction in numbers is in large part attributable to the overharvesting of horseshoe crabs for commercial purposes. Because of the corresponding drop in the quantity of horseshoe crab eggs, red knots have failed to attain the critical weight necessary to fly to their breeding grounds and survive an initial few days of Arctic snow cover.  See prior musing in ESA blawg and information from New Jersey Division of Fish & Wildlife and Citizens United to Protect the Maurice River

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

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER