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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.


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.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

The Key Largo Woodrat's Wild Ride


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Upon spotting a Key Largo woodrat, even an educated local from the Conch Republic might shrug, thinking of prolifically-reproducing mice and rats.  Woodrats, however, are a wholly different genus, facing the threat of extinction.  Yet mice and woodrats are connected, too, because The Mouse is trying to save the endangered woodrat.

The quiet conservation efforts of Walt Disney World scientists have made substantial and award-winning progress. Fueled primarily by corporate goodwill traced back to Walt Disney's vision, Mickey's friends are reintroducing his not-so-charismatic cousin to a U.S. Fish & Wildlife Service refuge in the Florida Keys. Last year, the effort bore fruit – or rather, woodrats – when a captive bred female woodrat, fondly named "Tweak," successfully gave birth to a pup after almost 60 days in the wild.

"Not only do the animals raised at Disney's Animal Kingdom have the skills to survive in the wild, they are breeding and producing offspring." says Dr. Anne Savage, Disney's Senior Conservation Biologist. "Tweak was the first captive born female to give birth in the wild.  It was an important event in the history of the Key Largo woodrat recovery program." 

Success, however, was not immediate.  Instead, as is often the case with great accomplishments, failure came first.  After months of captive breeding in a backstage holding facility, scientists plucked twelve rats from their enclosures and moved them to Crocodile Lake National Wildlife Refuge.  Obstacles abounded. 

Photo of a perched Key Largo Woodrat, by Clay DeGayner, available online at

In the dry coastal hammocks of Key Largo, the woodrat survives without any freshwater at all.  Water comes from its diet: from the wild coffee that spots the understory, or from the fruits of the distinctively-spotted trunks of the mastic tree.  The gumbo limbo tree, sometimes called the "tourist tree" by Floridians due to its peeling reddish bark, dominates the canopy.

Trash mounds, however, mar that natural beauty.  Along one dirt trail is the rusted metal frame and rotted upholstery of an old automobile.  Along another dirt road is the 20 foot tall debris mound of the old "Ready Room" and Nike missile site used during the Cuban Missile Crisis.  Dozens of mounds of concrete can be found in scattered locations, now overgrown by 30 years of vegetation.  The current state of the area makes it hard to imagine how the lands could ever have been planned to become Port Bougainville, a development project that would have included 15 hotels and over 2000 condos.  But the old adage applies: one person's trash is another person's treasure.  And for the Key Largo woodrats, trash is treasure.  Every fallen tree and every pile of concrete and coral is an opportunity.  Every clump of gathered twigs is a sign. 

"I know nothing about anything, and barely graduated kindergarten," laughs Ralph DeGayner, a gray-stubble wearing Michigan retiree and Florida snowbird, "but I do know something about woodrats."  He and his clean shaven brother Clay DeGayner each donate over 1000 hours annually as volunteers to the U.S. Fish and Wildlife Service.  They even think like woodrats.

"They look for a roof," says Ralph, pointing to a mound of trash he declared to be a "natural" nest. Natural, that is, when compared with one he built for the reintroduced species.  "They need a flat rock above their sheltered nest." 

"They need multiple access and escape routes too," adds Clay.  "And the giveaway is the stickpile."  The challenge for the woodrats is to find the sticks without getting eaten.

Clay DeGayner (left), and his brother Ralph DeGayner (right), have volunteered thousands of hours to benefit the Key Largo woodrat. Among their contributions is this simple tool for tracking the presence of feral cats by finding the predator's footprints in the sand.  Photo by Keith Rizzardi.

For regional land managers, the Key largo woodrat presents yet another variable in an already complex system.  As a species listed for protection under the Endangered Species Act, the woodrat creates significant regulatory headaches.  Land management decisions that might be simple elsewhere, like a trash removal plan, or a coastal spoil mound relocation, trigger a requirement to consult with federal scientists.  Through that "consultation" process, biologists try to determine whether the proposed action will jeopardize the continued existence of the entire species or adversely modify the woodrat’s critical habitat.  With wood rat populations estimated at 300 or so in 2007, and as low as 134 in 2010, the risk of species extinction is real.

Sadly, the tiny native woodrat captures none of the public attention given to other wildlife in the Everglades and Florida Keys.  The underfunded National Wildlife Refuge where it lives is closed to the public.  Worse yet, “restricted access” signs do not stop the predators.  Woodrats frequently become prey for the much-beloved feral cats in the area, necessitating difficult conversations with the wealthy neighbors who live in the nearby Ocean Reef Club.  In fact, federal wildlife managers continue to seek public input on plans to trap feral cats in the region.  But until such a plan is fully implemented, the bowls of water left outside by well-meaning (but ill-informed) people will save the lives of feral cats but serve as death sentences for the cats' unlucky prey. 

Then again, death – or more precisely, extinction – was exactly what “Python Pete” wanted when he sent an untraced e-mail to federal officials, declaring his plan to introduce exotic Burmese pythons to the Everglades.  According to locals, even though state and federal refuge lands were acquired through eminent domain more than 30 years ago, hard feelings still exist decades later, leading the devious Pete to adopt his plan for woodrat destruction.  Regardless of whether the story of Python Pete is legend or not, the invasive pythons (and local raccoons) present a real threat, and woodrats are routinely found in the stomachs of autopsied predators. 

Poor Ralph.  Named after his volunteering friend, Ralph the woodrat got eaten first.  In fact, the entire first group of reintroductions quickly suffered Ralph’s fate.  Twelve rats were released, and within two weeks, all twelve disappeared -- exactly as conservationists expected.  Darren Wostenberg, a contractor from Genesis Laboratory, was one of the prognosticators.  He wandered the woods for weeks, with a satellite device strapped to his back and an old-fashioned antenna in his hands.  Recording beeps amidst the static, he was present at the beginning when the rats were released, he tracked where they went, and he discovered where they met their ends.

"You don't put your best stock out the first time around," explained Wostenberg.  Savage agreed, chiming in.  "This is a scientific process,” she added.  “You learn what works, and what doesn't, and then put out the more virile animals.”

Photo of Darren Wostenberg searching for radio telemetry signals from a pile of rocks that sheltered "Remy" and other reintroduced Key Largo woodrats.  Photo by Keith Rizzardi.

Aided by the knowledge gained by the first group of woodrats, the Disney biologists brought out the A-team.  "A" as in Aggressive.  Theory and anecdotal evidence suggested that the more the woodrats bit and lunged in their cages, the more likely it seemed that the animal possessed the independence and dominance needed to survive in the the wild.  Still, conservation science ruled the selection process, and conservation geneticists from the U.S. Geological Service ultimately decided on which woodrats to reintroduce to their native habitat.

The journey for these woodrats begins in the backlots of Disney’s Animal Kingdom, where a simply constructed gated compound provides the breeding grounds and enclosures for the reintroduced animals.  In interconnected cages, complete with wheels and tubes like a pet hamster’s “Habitrail” system, these woodrats sleep, forage and exercise.  Nearby, Disney biologists grow native foods to feed the woodrats, simulating their natural diet and preparing them for their upcoming journey.

Creative low-tech thinking makes that journey less traumatic.  Rather than moving just the woodrat, Disney biologists move its home.  The nest boxes at Animal Kingdom are placed into a transport box, and loaded into a truck for the trip to Key Largo.  Upon arrival, the woodrat's transported nest fits into a larger nest structure, built from sticks, rocks and debris by volunteers (including the DeGayners) and surrounded by wire mesh.  After an acclimation period, the conservation biologists remove the gates, mesh and protective barriers, and the woodrats, fitted with radio telemetry collars, can explore their new, and much larger, environment. 

Aided by the work of such dedicated conservation scientists and volunteers, the future looks brighter for the Key Largo woodrat.  In 2010, two feisty females named Tweak and Patty found mates and successfully bred after being reintroduced.  Remy, a clever male named after the character in the Pixar film, Ratatouille, showed resilence.  He moved from nest to nest, and even escaped a cat, as indicated by an open wound on his back foot, a broken toe, and numerous lacerations discovered by field biologists who trapped him.  Remy found a girlfriend, too. 

Months later, Remy lost his collar.  No one knows what happened to him.  Perhaps he suffered Ralph’s fate, or perhaps not.  But either way, Remy the woodrat, and his friend Mickey Mouse, are giving an entire species new hopes and dreams.


Celebrating Earth Day, April 22, 2011

Photo of Anne Savage, Ph.D.,  Senior Conservation Biologist, Disney's Animal Programs, next to a protected nest structure awaiting its new resident.

For more information, read Anne Savage's blog entry about the Key Largo woodrat (with a great photo, too).  And also visit THE RAT RACE: Protecting the Key Largo Woodrat By Christina Alligood, PhD, Anne Savage, PhD, and Andre Daneault available online.  For reproduction rights, please contact

FWS announces endangered status for 7 Brazilian birds, and publishes recovery plan for St. Andrews beach mouse


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75 Fed.Reg. 81794 (Tuesday, December 28, 2010) / Rules and Regulations
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / FWS–R9–IA–2009–0028; 92210–1111–0000–B6 / RIN 1018–AV74
Endangered and Threatened Wildlife and Plants; Listing Seven Brazilian Bird Species as Endangered Throughout Their Range
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine endangered status for the following seven Brazilian bird species and subspecies (collectively referred to as ‘‘species’’ for purposes of this rule) 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 hummingbird (Phaethornis malaris margarettae), and southeastern rufous-vented ground-cuckoo (Neomorphus geoffroyi dulcis). DATES: This rule becomes effective January 27, 2011.

EXCERPT: We are addressing the seven Brazilian bird species identified above under a single rule for three reasons. First, all of these species are found in the Atlantic Forest Biome and Cerrado Biome; thus, it is reasonable to address them together within a regional conservation perspective. Biomes are large geographic areas such as forests and deserts which share similar climate and geography and consist of similar naturally occurring vegetation and fauna. Second, each of these seven species is subject to similar threats of comparable magnitude. The major threat to these species is the loss and degradation of habitat due to deforestation and other ongoing development practices affecting southeastern Brazil, as well as associated threats due to severely restricted distributions of these species and small, declining populations (such as potential loss of genetic viability). Third, combining species that face similar threats within the same general geographic area into one rule allows us to maximize our limited staff resources, thus increasing our ability to complete the listing process for warranted-butprecluded species.


75 Fed. Reg. 81637 (Tuesday, December 28, 2010) / Notices
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
FWS–R4–ES–2010–N247; 40120–1113–0000–C2
Endangered and Threatened Wildlife and Plants; Notice of Availability of the St. Andrew Beach Mouse Recovery Plan
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of document availability.
SUMMARY: We, the Fish and Wildlife Service, announce the availability of the recovery plan for the St. Andrew beach mouse (Peromyscus polionotus peninsularis). The recovery plan includes specific recovery objectives and criteria to be met in order to reclassify this species to threatened status and delist it under the Endangered Species Act of 1973, as amended (Act).

EXCERPT: Threats to the St. Andrew beach mouse include habitat loss/alteration from land development and associated human use, hurricanes and other tropical storm events, nonnative predators, and recreational activities associated with development and tourism that weaken and encroach on the dune ecosystem. Availability of suitable habitat may be a limiting factor during periods of population expansion or following catastrophic weather events. Due to the species’ limited range and fragmentation of its habitat, these threats combined continue to present a threat to the species’ existence.

11th Cir says appropriations act narrowly repealed ESA for Everglades project: "Congress wanted the bridge built now."


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MICCOSUKEE TRIBE OF INDIANS OF FLORIDA v. UNITED STATES ARMY CORPS OF ENGINEERS, Nos. 09-14194, 09-14539, --- F.3d ----, 2010 WL 3581910 (11th Cir. Sept. 15, 2010)(Before BLACK, WILSON and MARTIN, Circuit Judges).

SUMMARY: Indian tribe brought action against United States, alleging that planned replacement of section of roadway with bridge, in order to increase flow of water into Everglades National Park, violated National Environmental Policy Act (NEPA) and Federal Advisory Committee Act (FACA). The United States District Court for the Southern District of Florida, Ungaro, J., Doc. No. 08-21747-CV-UU, 650 F.Supp.2d 1235, granted United States' motion to dismiss. Tribe appealed. Tribe brought separate action against United States, alleging that planned replacement of roadway with bridge violated Endangered Species Act (ESA). The District Court, Seitz, J., 2009 WL 2872989, Doc. No. 08-22966-CV-PAS, granted United States' motion to dismiss. Tribe appealed. Appeals were consolidated.  The Court of Appeals, Wilson, Circuit Judge, held that the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 repealed NEPA, FACA, and ESA for purposes of tribe's suits, and thus deprived federal courts of subject matter jurisdiction over suits.

The Tamiami Trail, also known as U.S. Highway 41, was the first highway to cross the Everglades. Its name derives from the cities at its ends, Tampa and Miami. Construction began during the First World War and took more than a decade to complete. When workers were not battling the swamp, they were using dynamite to break through the rock beds on the Naples side.  The Trail remains a vital road and hurricane evacuation route.  Although the Trail remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.  Aerial photo of Tamiami Trail looking south, from The South Florida Watershed Journal.

KEITHINKING: The 11th Circuit opinion contains a valuable discussion of the legal concept of Congressional repeal, methodically reviewing the case law, and explaining that Supreme Court and Eleventh Circuit cases, and Sutherland Statutes and Statutory Construction, identify three categories of repeal: explicit repeals, general repealing clauses, and implied repeals.  This case involved a general repealing clause.  In other words, through an appropriations clause, Congress, for purposes of this particular project, repealed the Endangered Species Act.

EXCERPT: In this case, we hold that the notwithstanding clause of the Omnibus Act, analyzed within its surrounding statutory language, repeals the relevant environmental laws so as to deprive the federal courts of subject matter jurisdiction over the Tribe's suits. The district court's finding that there was an “explicit exemption” from the environmental laws, while yielding the correct result, blurred the lines between the categories of repeal established in the cases. We believe it is correct and clearer to identify as such the general repealing clause that is at work here…  On March 11, 2009, Congress passed the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 (Omnibus Act). The Omnibus Act included this passage:

CONSTRUCTION (INCLUDING RESCISSION OF FUNDS).  For construction, improvements, repair or replacement of physical facilities, including a portion of the expense for the modifications authorized by section 104 of the Everglades National Park Protection and Expansion Act of 1989, $233,158,000, to remain available until expended:

Provided, That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008....

123 Stat. at 708 (emphases added). In the following discussion, we refer to the phrase “notwithstanding any other provision of law” as the notwithstanding clause. We call the phrase “immediately and without further delay” the immediacy clause...  In the Omnibus Act, Congress orders the Corps to build the bridge “immediately and without further delay.” Like the notwithstanding clause, this immediacy clause also splits the verb phrase “shall ... construct.” Our cases require us to read such simple English simply. “In the absence of a statutory definition of a term, we look to the common usage of words for their meaning.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001) (quotation omitted)...

The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress's clear intent.

ESA news: two major lawsuits announced on pesticide regulation and military effects on right whales; while two states are becoming regulatory battlegrounds.


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Alaska wants less regulation based on the Endangered Species Act -- much less.  According to the, Alaska's Attorney General has budgeted $1 million next year to pay for a full-time attorney to focus on the Endangered Species Act, noting that regulations protecting polar bears, seals, greatly increase the cost of doing business in the state.

The Center for Biological Diversity, of course, disagrees.  CBD announced its plans to file a new lawsuit against EPA, alleging that 400 different pesticides are insufficiently regulated, harming 887 endangered species.   See LA Times and Center for Biological Diversity press release.  CBD's notice of intent to sue says EPA must engage in Endangered Species Act consultation with the wildlife agencies within the next 60 days -- an obvious impossibility given the scope of the case and numbers of variables.  Nevertheless, even though EPA already has an Endangered Species Protection Program for pesticides, it previously settled a similar lawsuit, and established new regulations, related to pesticide impacts on salmonid species in the Pacific Northwest.  See NOAA information page.  If this lawsuit is successful, it will inevitably increase the difficulty of pesticide approvals.  In fact, a recent NOAA biological opinion found that the registration of carbaryl and carbofuran was likely to jeopardize the continued existence of those salmonid species.  See also, prior ESA blawg, and pesticide threats case study.  

The pesticide lawsuit follows a successful, savvy and and well-used pattern: (1) strategic use of the ESA by environmental groups (2) to obtain a judicial mandate (3) changing or enjoining a previously unregulated or lesser-regulated activity (4) to benefit protected species, and, finally, (5) repeat as necessary.  The U.S. Navy has experienced the same pattern.  When the first lawsuits were filed by environmentalists seeking to stop military actions due to effects on protected species, it raised eyebrows and ire.  See prior ESA musing, and prior ESA caselaw summary.  Those lawsuits are now old news.  Earlier this week, environmentalists filed a lawsuit against the U.S. Navy over its decision to build an Undersea Warfare Training Range next to the South Georgia and North Florida waters serving as the only known calving ground (and critical habitat) for the critically endangered North Atlantic right whale.  See ENS Newswire.  The lawsuit was predictable, based on the small numbers for this species -- 350 animals -- and its status as endangered for over 35 years.

This photo of a North Atlantic right whale pod comes from the Jacksonville (JAX) Range Complex Environmental Impact Statement.  Recognizing that Naval warfare training activities are underway in and adjacent to the critical habitat area during the calving season, the EIS discusses the Navy's measures taken to protect right whales, including: on-board lookouts, using the slowest safe speed that is consistent with essential mission, training, and operations, maneuvering to keep at least 500 yards from any observed whale, funding aerial surveys during the calving season as part of the Early Warning System, and comprehensive training related to whale protection.

Given the right whale lawsuit, and other regional news, even some usually green-minded Floridians may sympathize with the frustrated sailors and Alaskans as the Endangered Species Act continues to increase Florida's regulatory burdens.  In addition to the new right whale lawsuit discussed above, recent ESA-related events in Florida include the pending petition on Florida panther critical habitat, ongoing litigation over the Cape Sable seaside sparrow, potential listing of the gopher tortoise, listing of the small tooth sawfish and critical habitat, a decision not to revise staghorn coral critical habitat, and revising manatee critical habitat.  Now, based on this week's news, environmental groups would like to add 84 more species to the list.  WildLaw in St. Petersburg petitioned the Interior Department and the U.S. Fish and Wildlife Service to list the Florida bonneted bat.  See and prior ESA blawg.  The Center for Biological Diversity is demanding a decision from NOAA, and threatening litigation, on the listing status of 83 species of coral.  See Washington Post.

And one final Florida-centric thought: with the recent cold snap stunning an astounding 5000 sea turtles, and the species continuing habitat decline, more litigation related to those species may be coming soon.  See OnEarth.

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


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

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

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

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

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

Sierra Club warns of climate change effects on Florida panther, calls for critical habitat designation


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The Sierra Club today is calling on the U.S. Fish and Wildlife Service to help the Florida panther survive global warming by protecting its habitat, the non-profit organization announced in the Press Room today.  "In many ways, the Florida panther is like the polar bear of the South. Because of its low-lying and exposed habitat, the panther is extremely vulnerable to global warming," said Sierra Club Representative Frank Jackalone. "In order to survive sea level rise and other impacts of climate change, panthers need to be able to migrate to new ground."  In other words, Sierra Club has joined the Center for Biological Diversity, who previously filed a petition to designate 4,860 square miles – roughly 3 million acres – to be protected as critical habitat in southern Florida.  


Florida panthers have appeared in other news reports this month.  Coincidentally,  earlier today, an anonymous caller reported seeing a dead Florida panther by the side of the Florida Turnpike near Yeehaw Junction -- more than 150 miles north of where most panthers live -- but when Florida Fish and Wildlife Conservation Commission staffers checked out the tip, they discovered a decapitated animal.  Although the big cat appeared to be hit by a car, FWC posted a reward for information leading to an arrest.  As noted on Big Cat Rescue, traffic presents a continuing threat to the species.

Still, despite today's unfortunate incident, long-term hope remains for the species.  The U.S. Army Corps announced the award of a $53-million construction contract Nov. 4 for the Picayune Strand Restoration Project as part of Everglades restoration in Collier County, Fla.  "This latest step by the Corps underscores our federal commitment and sets the future of the Picayune Strand in motion. Our endangered Florida panther and many other species will benefit," said Paul Souza, field supervisor of the U.S. Fish and Wildlife Service's South Florida Office. "Four decades ago, this area was slated to become a suburb of Naples. But today, because of leadership shown by our Everglades partnership, we're one step closer to achieving its restoration potential."

For more information about the potential effects of global warming and sea level rise on the Florida panther, visit an Earthjustice project, and Florida Wildlife Commission, On the Front Lines of Climate Change, and the Select Committee on Energy Independence

Photo above from U.S. Fish & Wildlife Service, available online from University of Florida

FWS proposed revised critical habitat for Quino Checkerspot Butterfly


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73 Fed. Reg. 77568  / Vol. 73, No. 245 / Friday, December 19, 2008 / 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 Quino
Checkerspot Butterfly (Euphydryas editha quino); Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our January 17, 2008, proposed revised designation of critical habitat for the Quino checkerspot butterfly under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA), a revision to proposed critical habitat Unit 2, and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revision of critical habitat (including the changes to proposed critical habitat Unit 2), the associated DEA, and the amended required determinations section. If you submitted comments previously, then you do not need to resubmit them because they are included in the public record for this rulemaking and we will fully consider them in preparation of our final determination. DATES: We will accept comments received on or before January 20, 2009.

The Quino checkerspot butterfly is found in association with topographically diverse open woody canopy landscapes that contain low to moderate levels of non-native vegetation compared to disturbed habitat. Vegetation types that support the Quino checkerspot are coastal sage scrub, open chaparral, juniper woodland, forblands, and native grassland. Soil and climatic conditions, as well as ecological and physical factors, affect the suitability of habitat within the species’ range. Urban and agricultural development, invasion of non-native species, habitat fragmentation and degradation, increased fire frequency, and other human-caused disturbances have resulted in substantial losses of habitat throughout the species’ historic range.  According to the Center for Biological Diversity, the plight of the Quino checkerspot butterfly has been described by a biologist as “four engines out and about ten seconds to impact.”  Caption information from FWS Recovery Plan and CBD.  Photo from California Department of Fish and Game.

FWS revises recovery plan for Florida panther


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73 Fed. Reg. 77052 / Vol. 73, No. 244 / Thursday, December 18, 2008 / DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Notice of Availability of the Florida Panther Recovery Plan

SUMMARY: We, the Fish and Wildlife Service, announce the availability of the third revision of the Florida Panther Recovery Plan. The plan includes specific recovery objectives and criteria to be met in order to reclassify the Florida panther (Puma concolor coryi) to threatened status and eventually delist this species under the Endangered Species Act of 1973, as amended (Act).  Available online from the U.S. Fish & Wildlife Service and its Vero Beach office, or try to link directly to the pdf document here.

Panthers are wide ranging, secretive, and occur at low densities. They require large contiguous areas to meet their social, reproductive, and energetic needs. Panther habitat selection is related to prey availability (i.e., habitats that make prey vulnerable to stalking and capturing are selected). Dense understory vegetation provides some of the most important feeding, resting, and denning cover for panthers... Limiting factors for the Florida panther are habitat availability, prey availability, and lack of human tolerance. Habitat loss, degradation, and fragmentation is the greatest threat to panther survival, while lack of human tolerance threatens panther recovery. Panther mortality due to collisions with vehicles threatens potential population expansion.  Caption information from Third Revised Recovery Plan, and photo from FWS Florida Panther National Wildlife Refuge

Interim Recovery Goal
Due to the challenging nature of attaining the recovery criteria, an interim recovery goal has been established to assist in determining progress towards the ultimate goals of reclassification and delisting.  This interim goal is to achieve and maintain a minimum of 80 individuals (adults and subadults) in each of two reintroduction areas within the historic range and to maintain, restore, and expand the south / south-central Florida subpopulation.  The interim goal will be met when:
1. The south / south-central Florida panther subpopulation has been maintained, restored, and expanded beyond 80 to 100 individuals (adults and subadults).
2. Two subpopulations with a minimum of 80 individuals each have been established and maintained within the historic range.
3. Sufficient habitat quality, quantity, and spatial configuration to support these three subpopulations is retained / protected or secured for the long-term.  There must be exchange of individuals and gene flow among these subpopulations. This exchange of individuals and gene flow can be either natural or through management.

Actions Needed
1. Maintain, restore, and expand the panther population and its habitat in south Florida.
2. Expand the breeding portion of the population in south Florida to areas north of the Caloosahatchee River.
3. Identify potential reintroduction areas within the historic range of the panther.
4. Reestablish viable panther populations outside of south and south-central Florida within the historic range.
5. Secure, maintain, and restore habitat in reintroduction areas.
6. Facilitate panther conservation and recovery through public awareness and education.

NOAA announces public hearings on proposed critical habitat for smalltooth sawfish


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73 Fed. Reg. 74681 / Vol. 73, No. 237 / Tuesday, December 9, 2008 / 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; Notice of two public hearings.

SUMMARY: We, NMFS, will hold two public hearings in Florida in January of 2009, to receive public comments on the proposal to designate critical habitat for the endangered U.S. distinct population segment (DPS) of smalltooth sawfish that published on Nov. 20, 2008. DATES: The hearings will be held from 7 to 9 p.m. on January 5, 2009, in Naples, FL and on January 14, 2009, in Cape Coral, FL.  See also ESA blawg (5/21/2008) and (11/21/2008)

NOAA designates coral critical habitat, excludes naval training area


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73 Fed. Reg. 72210 / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Department of Commerce National Oceanic and Atmospheric Administration; 50 CFR Parts 223 and 226; Endangered and Threatened Species; Critical Habitat for Threatened Elkhorn and Staghorn Corals; Final Rule

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a final rule designating critical habitat for elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals, which we listed as threatened under the Endangered Species Act of 1973, as amended (ESA), on May 9, 2006.  Four specific areas are designated: the Florida area, which comprises approximately 1,329 square miles (3,442 sq km) of marine habitat; the Puerto Rico area, which comprises approximately 1,383 square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas area, which comprises approximately 121 square miles (313 sq km) of marine habitat; and the St. Croix area, which comprises approximately 126 square miles (326 sq km) of marine habitat. We are excluding one military site, comprising approximately 5.5 square miles (14.3 sq km), because of national security impacts.  DATES: This rule becomes effective December 26, 2008.

KEITHINKING: see prior ESA blawg posting from July 2008 on the troubled future for coral, and Miami Herald article (Nov. 30, 2008) on the potential impacts of climate change for these threatened marine species.

Impacts to national security as a result of the coral critical habitat designation were expected to occur in a 5.5 sq mile (14.2 sq km) area in Dania, FL. Based on information provided to NOAA by the Navy, national security interests would be negatively impacted by the designation, because the potential additional consultations and project modifications to avoid adversely modifying the essential feature would interfere with military training and readiness. Dania, Florida is home to the South Florida Ocean Measurement Center (SFOMC) an active, continuously operating Navy range for over forty years, and the only ship, submarine, and mine-effectiveness test range with simultaneous air, surface, and subsurface tracking capability. Based on these considerations, NOAA excluded the particular area identified by the Navy from the critical habitat designation.  Photo of a Nova Southeastern University diver from the SFOMC applied research webpages.

NOAA announces critical habitat for smalltooth sawfish in Florida


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73 Fed. Reg. 70290 / Vol. 73, No. 225 / Thursday, November 20, 2008 (DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration; 50 CFR Part 226 [Docket No. 070717355–8030–01] RIN 0648–AV74 Endangered and Threatened Species; Critical Habitat for the Endangered Distinct Population Segment of Smalltooth Sawfish; Proposed rule; request for comments.)

The smalltooth sawfish is utilized as a food fish, the oil being used to make medicine, soap and in leather tanning. Adults are stuffed for decoration. It is reported to be aggressive towards sharks when kept in tanks.  Caption info from wikipedia.  Photo from LA Aquarium.

SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the U.S. DPS of smalltooth sawfish (Pristis pectinata), which was listed as endangered on April 1, 2003, under the Endangered Species Act (ESA). The proposed 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: Comments on this proposed rule must be received by January 20, 2009.

EXCERPT: In summary, there is limited information on adult sawfish distribution and habitat use. Adult sawfish are encountered in various habitat types (mangrove, reef, seagrass, and coral), in varying salinity regimes and temperatures, and at various water depths. Adults are believed to feed on a variety of fish species and crustaceans. No known breeding sites have been identified. Encounter data have identified river mouths as areas where many people observe both juvenile and adult sawfish. Seitz and Poulakis (2002) noted that many of the encounters occurred at or near river mouths in southwest Florida. Simpfendorfer and Wiley (2005b) reported a similar pattern of distribution along the entire west coast of Florida. Along the Everglades coastal region, Simpfendorfer and Wiley (2005) report a strong association of smalltooth sawfish with the Chatham, Lostmans, Rodgers, Broad, Harney, and Shark Rivers.

... Red mangroves and adjacent shallow euryhaline habitats are susceptible to impacts from human activities because they are located in areas where urbanization occurs. The Status Review (NMFS, 2000) states that habitat destruction is one of the key factors affecting the present range of the species. The continued urbanization of the southeastern U.S. has resulted in substantial habitat losses for the species. Coastal areas where these features are located are subject to various impacts from activities including, but not limited to, dredging and disposal activities, coastal maritime construction, land development, and installation of various submerged pipelines. The impact from these activities combined with natural factors (e.g., major storm events) can significantly affect the quality and quantity of the two features listed above and their ability to provide nursery area functions (i.e., refuge from predators and abundant food resources), to juvenile smalltooth sawfish to facilitate recruitment into the population. Dredging projects modify water depths to accommodate navigation needs, mangroves are removed to construct docks and various maritime structures, and water control structures are installed to modify water flows in various areas, which can alter salinity regimes downstream. Based on our past ESA section 7 consultation database records we know that coastal areas in southwest Florida will continue to experience impacts from coastal construction projects and that these features will continue to experience negative impacts in the future.

Two for one: taxonomic shift leads FWS to propose listing of two flatwoods salamander species


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73 Fed. Reg. 47258 (Wednesday, August 13, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; WS-R4-ES-2008-00822210-1111 FY07 MO-B2 RIN 1018-AU85; Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Reticulated Flatwoods Salamander; Proposed Designation of Critical Habitat for Frosted Flatwoods Salamander and Reticulated Flatwoods Salamander; Proposed rule; availability of draft economic analysis, and opening of comment period.)

The overall range covered by the reticulated and the frosted flatwoods salamanders is the same as is currently designated for the flatwoods salamander. However, the reticulated flatwoods salamander inhabits the western part of the range and the frosted flatwoods salamander inhabits the eastern part.  For more information on the flatwoods salamander, refer to the final listing rule published in the Federal Register on April 1, 1999 (64 FR 15691).  In general, most threats for this species (for example, habitat loss, habitat degradation, inadequacy of existing regulatory mechanisms) are of a historical nature in the majority of the range because breeding ponds supporting 85 percent of frosted flatwoods salamander populations occur on public lands where the habitat is relatively protected.  Photo of the frosted flatwoods salamander from

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to split the listing under the Endangered Species Act of 1973, as amended (Act), of the currently threatened flatwoods salamander (Ambystoma cingulatum) into two distinct species: frosted flatwoods salamander (Ambystoma cingulatum) and reticulated flatwoods salamander (Ambystoma bishopi) due to a change in taxonomy. The frosted flatwoods salamander will maintain the status of threatened. However, we propose to list the reticulated flatwoods salamander as endangered under the Act. We also propose to designate critical habitat for both the frosted flatwoods salamander and the reticulated flatwoods salamander under the Act. In total, approximately 30,628 acres (ac) (12,395 hectares (ha)) (23,132 ac (9,363 ha) for the frosted flatwoods salamander and 7,496 ac (3,035 ha) for the reticulated flatwoods salamander) fall within the boundaries of the proposed critical habitat designation, which is located in the panhandle of Florida, southwestern Georgia, and southeastern South Carolina. We also announce the availability of the draft economic analysis for our proposed designation of critical habitat for the frosted and reticulated flatwoods salamanders. The draft economic analysis estimates that, over the period 2009 to 2028, post-designation costs for frosted and reticulated flatwoods salamander conservation-related activities would range between $3.88 million and $6.40 million (at a 3 percent discount rate) and $2.49 million to $4.38 million (at a 7 percent discount rate). Potential impacts are expected to range from $261,000 to $430,000 at 3 percent or $235,000 to $413,000 at 7 percent annually. DATES: We will accept comments received or postmarked on  or before October 14, 2008. We must receive requests for public hearing by Sept. 29, 2008.

KEITHINKING: The listing amendment will have some effects on the Florida panhandle.  Portions of the critical habitat include areas in the State,  19 populations of the reticulated flatwoods salamander are known from Florida, and the species' historic range included the Florida panhandle.  In addition, "several relatively recent discoveries of previously unknown reticulated flatwoods salamander breeding sites in Santa Rosa County, Florida, have been made in conjunction with wetland surveys associated with development projects (Cooper 2008). No reticulated flatwoods salamanders have been observed at these degraded sites since completion of the projects (Cooper 2008)."

Where have all the scrub jays gone? Has incrementalism in Palm Beach County extirpated the species?


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The Seacrest Scrub Natural Area is a small slice of natural florida, surrounded by a quaint, aging community near the resurging areas of Boynton Beach and Delray Beach, Florida.  Although historically the perfect habitat for the threatened Florida scrub jay, the Palm Beach County recreational area has not been home to the species for years.  

Photo of the Seacrest Scrub Natural Area, from Palm Beach County government

For four weeks this summer, volunteers again searched in vain for the species.  See Palm Beach Post (July 8, 2008).  The tape recorded bird calls were returned only by the sounds of silence (and the occasional passing car.)  According to Audubon, the last time the bird was spotted in Palm Beach County was December 2006.  See Palm Beach Post (July 12, 2008).  The volunteers cite development as the cause, but the Endangered Species Act didn't help.

The Endangered Species Act: An Industry of its Own?


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According to the Pacific Legal Foundation, the Endangered Species Act is more powerful than the constitution.  See ESA blawg (April 30, 2008).  Conversely, according to the Center for Biological Diversity, the ESA is not working, because what took 3 billion years to evolve is vanishing in the blink of an eye.  Forgive my cynicism, but I can't help but notice that both of these not-for-profit organizations want your donations and activist support.  Lawsuits are simply part of their business model.

In 2001, Congress authorized the Army to expand Fort Irwin, leading to the relocation of about 770 tortoises, from newly acquired Fort Irwin land slated for training use to unoccupied public land.  However, the desert tortoise is listed as a threatened species under the Endangered Species Act. Moving the tortoises requires handlers to wear gloves to avoid spreading disease. The animals also tend to urinate while being handled, leading them to potentially become dehydrated, according to Desert Tortoise Council handling guidelines.  The Center for Biological Diversity claims that in the relocation, healthy tortoises were mixed with diseased populations and that the new habitat is inferior.  Caption information from the Desert Dispatch, and photo by David Miller from USGS.

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Army Corps enforcement on 404 permit triggers stay of endangered species litigation over Cypress Creek Town Center


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Sierra Club v. Van Antwerp, Civil Action No. 07-1756 (RCL), Memorandum Opinion (D.D.C., June 11, 2008)

PERMITTING HISTORY.  Cypress Creek Town Center (“CCTC”) is a regional shopping mall with supporting commercial establishments, including retail businesses, hotels, restaurants, cinemas, and multi-family residential housing. The development is located on approximately 507 acres of undeveloped land in Pasco County, Florida. In May 2005, Sierra Properties applied for a Clean Water Act (“CWA”) permit pursuant to CWA section 404 for the CCTC… on May 15, 2007, the Corps issued an Environmental Assessment finding that CCTC would not cause unacceptable environmental impacts and issued the requested section 404 permit allowing development of CCTC to proceed.

Photo of the construction site at Cypress Creek Town Center Mall , by Alexis Muellner from the Tampa Bay Business Journal.

CASE HISTORY.  On October 1, 2007, plaintiffs filed suit in this Court against federal defendants alleging improper issuance of the CWA section 404 permit and an improper concurrence letter issued by the United States Fish and Wildlife Service (“FWS”) stating that CCTC would not adversely impact four endangered species, the Wood Stork, the Florida Scrub Jay, the Eastern Indigo Snake, and the Manatee.  Plaintiffs’ complaint asks this court to find that the section 404 permit was issued in violation of the Endangered Species Act, the CWA, the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and their accompanying regulations.  On January 16, 2008, plaintiffs filed a motion for summary judgment. On February 5, 2008, before opposition briefs to this motion were due, federal defendants filed a notice with the Court indicating that the Corps had suspended Sierra Properties’ section 404 permit effective February 1, 2008. The Corps suspended the permit because the project had discharged turbid water into Cypress Creek…  On February 13, 2008, federal defendants filed their motion for voluntary remand and stay pending final Corps action on the remanded permit. According to the Corps, the intervening events that led to the permit’s suspension and new evidence gained from subsequent investigation and review of the permit decision may render some or all of plaintiffs’ claims moot.

RULING.  The Corps has a substantial and legitimate interest in reconsidering its permit decision on remand based on a more complete factual record… and the Corps may ultimately revoke the permit or modify its decisionmaking process in such a manner that would make these proceedings moot...  Plaintiffs also contend that any stay of judicial proceedings will cause extreme prejudice to environmental interests. Yet, the permit’s suspension in effect removes the potential harm created by Intervenors in the areas under the Corps’ jurisdiction…   The Corps’ voluntary reconsideration of the permit appears to be a development along the lines of the relief that plaintiffs seek…  The Court fails to see how extreme prejudice would accompany a stay pending the Corps’ reconsideration on remand.

 COMMENTARY: The litigation in the Tampa area is noteworthy because the 1.5 million square feet mall (also called a lifestyle center) will become one of the largest in the region.

In Lake Belt mining case, 11th Circuit rebukes lower court, reaffirms deference principles in Federal APA litigation


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Sierra Club v. Flowers, No. 07-13297 (May 9, 2008) available online

BACKGROUND: Sierra Club brought this action against the Army Corps of Engineers (“Corps”) after the Corps granted Rinker Materials and other mining concerns (“Miners”) Clean Water Act (“CWA”) permits. 33 U.S.C. § 1251 et seq. The Miners sought to extract high-quality limestone from the “Lake Belt” area—a stretch of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps.  The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging inter alia that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.  The District Court found that the Corps violated NEPA, and remanded the permits to the Corps.

RULING: On Appeal, the 11th Circuit was quite critical of the District Court, clearly establishing that the lower court should have been much rmore deferential to the agency, and ruling, in pertinent part, as follows:

On remand, the district court should address the issues with an eye toward the proper deferential APA standard and NEPA’s limited, procedural scope...  The same pervasive lack of deference infects the district court’s APA-CWA analysis. As with its NEPA analysis, the court failed to view the CWA claims
decisions through the deferential lens of the APA. The judgment on the CWA-APA claim also is vacated... The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. Indeed, the court made its predetermination of the ultimate issue explicit in its conclusion... (where the lower court stated that 'even if a more probing analysis reveals that there truly are no practicable and environmentally preferable alternatives to mining in this precious resource, the Court’s conclusion would be unchanged.'...  In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing...  The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts.

Photo of wood storks nesting in nearby Everglades National Park, from USGS

For additional commentary and resources...

Comments sought by FWS on Lake Woodruff National Wildlife Refuge Comprehensive Conservation Plan


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73 Fed. Reg. 21978 (Wednesday, April 23, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Lake Woodruff National Wildlife Refuge, Volusia and Lake Counties, FL; Notice of availability: Draft comprehensive conservation plan and environmental assessment; request for comments.)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce the availability of a draft comprehensive conservation plan and environmental assessment (Draft CCP/EA) for the Lake Woodruff National Wildlife Refuge for public review and comment. In this Draft CCP/EA, we describe alternatives, including our proposed action to manage this refuge for the 15 years following approval of the Final CCP.  Also available for review and comment are draft compatibility determinations.  To ensure consideration, we must receive your written comments by May 23, 2008.

COMMENTARY: Endangered and threatened species protected at the Refuge include the manatee, snail kite, wood stork, bald eagle, limpkin, indigo snake, gopher tortoise and American alligator.

18 southeastern species under review by FWS


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73 Federal Register 20702 (Wednesday, April 16, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; 5-Year Status Review of 18 Southeastern Species; Notice)

SUMMARY: The U.S. Fish and Wildlife Service (Service) is initiating 5-year status reviews of the Key Largo cotton mouse (Peromyscus gossypinus allapaticola), Audubon’s crested caracara (Polyborus plancus audubonii), Gulf sturgeon (Acipenser oxyrinchus desotoi), Stock Island tree snail (Orthalicus reses (not incl. nesodryas)), four-petal pawpaw (Asimina tetramera), Florida golden aster (Chrysopsis floridana), Apalachicola rosemary (Conradina glabra), Okeechobee gourd (Cucurbita okeechobeensis ssp. okeechobeensis), beautiful pawpaw (Deeringothamnus pulchellus), Garrett’s mint (Dicerandra christmanii), scrub mint (Dicerandra frutescens), Harper’s beauty (Harperocallis flava), white birds in a nest (Macbridea alba), Godfrey’s butterwort (Pinguicula ionantha), scrub plum (Prunus geniculata), Florida skullcap (Scutellaria floridana), gentian pinkroot (Spigelia gentianoides), and Florida ziziphus (Ziziphus celata), under section 4(c)(2) of the Endangered Species Act of 1973, as amended (Act). The purpose of reviews conducted under this section of the Act is to ensure that the classification of species as threatened or endangered on the List of Endangered and Threatened Wildlife and Plants (50 CFR 17.11 and 17.12) is accurate. A 5-year review is an assessment of the best scientific and commercial data available at the time of the review.

Photo of Audubon’s crested caracara from U.S. Fish & Wildlife Services South Florida Ecological Field Services Office

Charlotte County, FL Resident Submits Incidental Take Permit Application for Scrub Jays


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73 Fed. Reg. 19525 (Thursday, April 10, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Receipt of an Application for an Incidental Take Permit for Residential Construction in Charlotte County, FL)

SUMMARY: We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) and Habitat Conservation Plan (HCP). Peter Mosel (applicant) requests an ITP pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The applicant anticipates taking about 0.23 acre of Florida scrub-jay (Aphelocoma coerulescens) (scrub-jay) foraging and sheltering habitat incidental to lot preparation for the construction of a single-family residence and supporting infrastructure in Charlotte County, Florida (project). The applicant’s HCP describes the mitigation and minimization measures proposed to address the effects of the project on the scrub-jay. We must receive your written comments on the ITP application and HCP on or before May 12, 2008.

Photo of Scrub jay from FWS North Florida Field Office

Comprehensive conservation plan under review at Ding Darling National Wildlife Refuge


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73 Fed. Reg. 17992and 17993 (Wednesday, April 2, 2008)

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

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

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

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

11th Circuit rules against FEMA and FWS in historic case; development in key deer habitat remains enjoined


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Florida Key Deer and National Wildlife Federation v. Paulison, No. 05-16374 (11th Cir., April 1, 2008) available online.
In an opinion released today, the 11th Circuit upheld a U.S. District Court ruling, finding that the Federal Emergency Management Agency (“FEMA”) and the U.S. Fish and Wildlife Service (“FWS”) failed to comply with section 7 of the Endangered Species Act, with regard to FEMA’s administration of the National Flood Insurance Program (“NFIP”) in the Florida Keys.  The opinion reflects a milestone in this historic litigation – ongoing for over eighteen years – and in it, the 11th Circuit adopts some of the 9th Circuit’s most progressive interpretations of the Endangered Species Act.  Significantly, the opinion means that the injunction on flood insurance for the Florida Keys will remain intact, which in turn may reduce the likelihood of development within the habitat of the endangered Florida Key deer.  Among the court's rulings were (A) the consultation requirements in 7(a)(2) of the ESA apply to FEMA’s administration of the National Flood Insurance Program, (B) section 7(a)(2) of the ESA did requires FEMA to independently analyze the FWS’s proposed “reasonable and prudent alternatives”, (C) Section 7(a)(1) of the ESA requires agencies to develop meaningful species- and location-specific conservation programs; and (D) the district court’s injunction was appropriate.

Photo of Key Deer, at and from the National Key Deer Refuge on Big Pine Key, FL

  • News coverage by Florida Times-Union
  • Press release by NWF
  • "What's Killing the Key Deer," in National Wildlife Federation's magazine.
  • National Association of Homebuilders on their amicusparticipation in the proceedings.

Wood storks as ecological indicators


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Although an endangered species, wood storks can still be spotted with regularity by knowledgeable South Floridians.  A white feathered bird with black accents, a scaly unfeathered neck and head, and pinkish toes, the wood stork has an extensive range in the United States, but thrives in South Florida's wetlands, where the bird's tactile feeding methods -- also called grope feeding -- are more likely to succeed because of the concentration of prey.  See, e.g., U.S. Fish & Wildlife Service, Multi-Species Recovery Plan for South Florida (1998) at 4-399.  According to that U.S. FWS report, "the goal for wood stork recovery in South Florida is to support 2,500 nesting pairs in the Everglades and Big Cypress Basin systems and to support, as a South Florida ecosystem component, 35 percent (3,500 nesting pairs) of the southeast United States recovery and delisting nesting population of 10,000 pairs."  Although those overall recovery numbers have not yet been reached, conservation officials have made substantial progress.   According to the Florida Fish & Wildlife Conservation Commission, "a survey in 2002 showed that (South Florida) now contains between 6,600 and 7,700 nests in 41 colonies", numbers far better than the lows in the 1000-2000 range seen in the 1980s, but a far cry from historical estimates.  

An important question, as often asked with endangered species, is why should we care?  The answer, as often stated on these pages, is that each species is indicative of the quality of its environment, which in turn means the quality of life for humanity.  And the improving condition of the wood stork may be evidence that things are getting better in South Florida.

 Wood storks enjoying life in Georgia too, from GA Department of Natural Resources

Upon further review, court upholds FWS decision not to list the Florida black bear.


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Defenders of Wildlife v. Kempthorne, 2008 WL 590865 (D.D.C., Mar. 5, 2008)

BACKGROUND: In 1998, U.S. Fish & Wildlife Service found that the Florida black bear did not warrant ESA listing.  63 Fed. Reg. 67613 (Dec. 8, 1998).  However, a 2001 court decision remanded the finding to the FWS to clarify the analysis of whether existing regulatory mechanisms were adequate.  FWS issued a new decision in 2004.  69 Fed. Reg. 2100 (Jan. 14, 2004)

SUMMARY: Rejecting all the alternative procedural arguments of the Plaintiffs, the Court held that FWS  properly interpreted the 2001 remand, and properly limited its analysis to the regulatory mechanisms that were in place in 1998.  The court also held that FWS properly considered the best available data that was available in 1998, because FWS had not been ordered to begin an entirely new review of the need to list the Florida black bear.  On the merits, the court also held that FWS’s analysis was not arbitrary or capricious, and upheld the FWS conclusions that the amount of habitat loss in Florida did not necessitate threatened status for the species because public conservation lands provided the needed habitat for bears to thrive.  The Court specifically noted the preservation of and management measures in over 3.7 million acres of State and Federally managed lands in Florida, including: Apalachicola, Ocala, and Osceola National Forests; Big Cypress National Park; Okefenoke and other National Wildlife Refuges; Eglin Air Force; and other state lands owned by Florida. Finally, the Court upheld FWS’s reliance on existing management plans for State of Florida lands as not mere speculation.

Florida's license plates protect black bears, and the Florida FWCpromotes the tags, which fund wildlife preservation.

  • Florida Fish & Wildlife Commission webpageson the Florida black bear
  • Defenders of Wildlife webpageson the Florida black bear

Court defers to FWS biological opinion on sparrows despite Tribal concerns for snail kites


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Miccosukee v. USA, 528 F.Supp.2d 1317(S.D.Fla. Dec. 21, 2007)
        CLAIMS: Tribe alleged that 2006 Biological Opinion on the Army Corps’ “Interim Operating Plan” for the southern Everglades violated the Endangered Species Act.  Specifically, the Complaint alleges that in late 1997, the FWS began demanding the closure of certain water management structures along Tamiami Trail to stop the flow of water out of WCA-3A to benefit the endangered Cape Sable Seaside Sparrow located downstream, in Everglades National Park, to the south. Plaintiff alleges that the closing of these gates has resulted in harm to both Plaintiff and endangered species, specifically the Snail Kite and its critical habitat. Specifically, the Tribe alleged that the closing of the gates and the subsequent restriction of water flow may keep water levels behind the gates abnormally high. This increased water depth, as described above, could reduce the number of attainable apple snails, which are the Snail Kite's primary food source.
        RULING:  This Court must grant deference to FWS' determinations and discretionary decisions. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373 (2004)… FWS utilized the data available, made determinations about which data to rely upon, and successfully countered each of Plaintiff's allegations of non-compliance… data and studies relied upon by the FWS do not have be flawless, and FWS' decision to rely on particular data is subject to deference. See American Iron and Steel Institute v. E.P.A., 115 F.3d 979, 1005 (D.C.Cir.1997). Thus, as to Count I, FWS did not act arbitrarily and capriciously in rendering the 2006 BO because the decision was based on a consideration of the relevant factors and there was not a "clear error of judgment." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Plaintiffs may disagree with FWS' conclusions, but that does not render their findings arbitrary and capricious...  Conclusion. The Court is satisfied that FWS… rendered its 2006 BO based upon the relevant factors and exercised its statutorily and jurisprudentially protected discretion and made a correct judgment as to the immediate preservation of the Sparrow.

Snail kite photo from FWS


Panthers vs. ORVs, and coral critical habitat


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From the Sunday, Feb. 24, 2008 Palm Beach Post...Panther Safety at heart of fight over off-road vehicles.

"Off-road vehicles were prohibited in 2000 in much of the region north of Interstate 75, known as Alligator Alley. But preserve Superintendent Karen Gustin decided to reopen the Bear Island area to vehicle use a year ago after a heavy lobbying effort by off-roaders..." but environmentalists "allege that vehicle access to the sensitive area constitutes federal neglect of the National Park Service's obligation to protect the highly endangered panthers."

Florida Panther photo by Ralph Arwood available atBig Cypress National Preserve

COMMENTARY: The struggle between natural resource management and recreational use, especially in the context of off-road vehicle use, is a well trod path in environmental litigation. See Natural Trails and Waters Coalition page.   But while it is indisputable that ORV's cause some degree of habitat impact, see National Park Service article on human/panther interactions, another question needs to be considered: in the absence of the use of at least portions of that habitat, would the motivation exist to preserve the rest of the habitat?

* * * * *

In other South Florida news, NOAA has announced its plans to designate critical habitat for threatened Elkhorn and Staghorn corals. See NOAA press release.  The proposed rule and related fact sheets are also available online.

COMMENTARY: The listing and protection of coral may also have significant benefits for the fish that depend upon them.  However, as ENN reported today, the well-known Butterfly fish 'may face extinction' because it is an "obligate specialist" with a very strong dietary preference for one sort of food -- namely, Acropora hyacinthus.  Here, NOAA seeks to protect only the elkhorn coral (Acropora palmata), and staghorn coral (A. cervicornis).

Severed deer heads in the Florida Keys?


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Once again justifying the criminal provisions of the ESA (see also Jan. 18, 2008 ESAblawg "Harassing a manatee"), multiple Florida newspapers today reported unusual killings of the endangered Key deer.  According to the Bradenton Herald, citing the Key West Citizen, "a Big Pine Key resident found three severed Key deer heads on federal property," and in another incident, "a deer was found alive but with a 3-foot-long spear in its neck."  

Evidently, somebody in the Conch Republic watched "The Godfather" too many times.

Key deer hiding in red mangroves from U.S. FWS

The tiny Key deer number only 700-800, and frequently get killed by cars travelling the US-1 corridor.  Although well adapted to the Florida Keys' highly salty environment, the deer is especially populous in the Big Pine Key region, where it benefits from a freshwater filled quarry and has its own National Wildlife Refuge.

Other Worthy Resources:
  • U.S. Fish & WIldlife Service, Multi-Species Recovery Plan for South Florida, "Key Deer" at 4-3 to 4-23, available online.
  • Texas A&M University's Florida Key Deer Research Project, available online.

Critical habitat decision for the Cape Sable seaside sparrow excludes areas proposed in draft.


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Earlier this week, the U.S Fish & Wildlife Service issued its final rule designating revisions to the critical habitat of the Cape Sable seaside sparrow (CSSS), an endangered species with habitat entirely within Everglades National Park.  The most significant conclusion in the Final Rule was FWS's decision to invoke the Secretary’s discretion, under ESA section 4(b)(2), to exclude portions of the previously proposed critical habitat.  As FWS further explained in its Frequently Asked Questions publication:

Given the uncertainties in the historical conditions and vegetation changes that will be caused by Everglades restoration in this area, we do not believe designating fixed habitat lines was a sensible restoration and recovery strategy. Furthermore, the areas supporting sparrows west of Shark River Slough fall exclusively within the boundaries of Big Cypress National Preserve and Everglades National Park. As a result, these locations will continue to receive significant protections now and in the future even without the critical habitat designation. After a careful weighing of the benefits of designating versus excluding subpopulation A, we determined the benefits of exclusion were significantly greater. In addition, we do not believe the remaining areas of critical habitat are likely to significantly affect CERP.

CSSS photo by David LaPuma, available at FWS South Florida Ecological Services Office

Noteworthy Resources:

Atlanta vs. Apalachicola: southeastern water wars


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For years, Florida, Georgia, and Alabama have been engaged in a political and legal battle over water in the Apalachicola-Chattahoochee-Flint (ACF) River watershed, which, like many western watersheds, includes a series of dams and water control structures to govern the timing and quantities of flows.  See Army Corps of Engineers webpage.

Buford Dam photo from

In recent years, the Endangered Species Act has moved to the forefront in the dispute over how much water should flow, and when it should flow, from Georgia's Lake Lanier down to Florida's Apalachicola Bay.  Lake Lanier, controlled in part by releases through the Buford Dam, is an important part of the water supply system for Atlanta, whereas Apalachicola Bay is essential to the Florida Panhandle's fishing and oyster economy.  Along the way, populations of endangered mussels have complicated the U.S. Army Corps watershed management plans, and the mussels themselves have become a source of litigation.  Notably, these freshwater mussels serve as critical indicators of ecosystem health.  See, U.S. Geological Survey.

Photo of fat threeridge mussels from Discovery News (6/7/2006).

In 2006, Florida argued that the Corps retention of water in upstream reservoirs failed to satisfy the interim flow needs of the listed mussel species in the ACF during periods of low flow conditions.  Florida's motion for a temporary restraining order was denied by the U.S. District Court for the Northern District of Alabama because, at the time, the Court held that the evidence pointed to other causes for exposure of the mussels and harm to their habitat, such as severe drought.  As the Court held, it could not "hold the Corps responsible for the absence of rain... Using the reserves now... means less water  available in the future to combat the effects of this drought if it continues as anticipated."  State of Alabama v. U.S. Army Corps of Engineers (N.D. Ala., July 25, 2006), Case No. CV-90-BE-01331-E.  Earlier this year, in March 2007, the dispute was referred to the multi-district dispute resolution panel.  See In Re: Tri-States Water Rights Litigation, Transfer Order (Mar. 20, 2007)

This October, however, with water supplies low in Georgia, the water wars became even more intense, and Georgia leaders called for a waiver of the Endangered Species Act, claiming that watershed management efforts were choosing mussels over people.  Meanwhile, their counterpart Florida leaders rejected such claims, noting that the downstream needs of people in Apalachicola Bay are equally important, and arguing that Georgia's leaders are simply choosing Georgians over Floridians.  Click here to see the letter from Florida's Governor Crist to President Bush.  The dispute went to the White House Council on Environmental Quality, see Atlanta Journal Constitution Article (11/1/2007), and MSNBC article, but Florida's leaders remain unhappy with the temporary truce brokered by the White House.  See article (11/10/2007) in The Ledger.

In a question and answer page dedicated to the subject, the U.S. Fish & Wildlife Service addressed many of the key aspects of this dispute.  For a scholarly casestudy on the history of dispute resolution efforts in the basin, click here.


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



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)


"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."


"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