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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.

Law review on ESA: Reform or Refutation?

07/14/2008

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Another law review summary from Liz Batres...  Brian E. Gray, The Endangered Species Act: Reform or Refutation?, 13 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 1 (2007).
   This article discusses the historical context in which the ESA was enacted, current criticisms, and the 2005 house bill that aimed to overhaul the Act.  Noting that Congress passed the ESA with overwhelming approval, the author questions whether the law’s participants “and the public understood either the Act or the forces that it would set into motion.”  Id. at 2.  For example, the Act extended the reach of the federal regulatory power beyond federal lands to private and state areas.  Taking a case from each of the last four decades, the article then explains the controversy over the Act.

The ESA and the Bureau of Reclamation: water vs. wildlife?

04/04/2008

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Reed D. Benson, Dams, Duties, and Discretion: Bureau of Reclamation Water Project Operations and the Endangered Species Act, 33 Colum. J. Envtl. L. 1 (2008).
    Citing recent Supreme Court's decision in National Association of Home Builders (NAHB) v. Defenders of Wildlife, which limited the application of ESA's §7 to discretionary federal agency actions, this article examines the applicability of §7 to U.S. Bureau of Reclamation (USBR) projects.  The author opines that continued "applicability of §7 to Reclamation projects is an issue of huge importance for several reasons," including "survival and recovery of many species in the West."  (As readers of this ESAblawg know, the application of ESA §7 to Reclamation in the California Bay-Delta has repeatedly generated cases and discussion.)
    Section §7(a)(2) of the ESA requires each federal agency "to ensure that any action authorized, funded, or carried out" by it, is not likely to jeopardize a listed species or designated critical habitat.  Although the Section does not contain a limitation, the ESA implementing rules provide that § 7 applies "to all actions in which there is discretionary federal involvement or control."  In NAHB, the Court upheld this limitation.
    Looking forward, the author outlines numerous reasons why USBR projects should be considered discretionary and thus, subject to §7.  Significantly, the article warns that excluding Reclamation projects "from §7 consultation and no-jeopardy requirement . . . could mean extinction in the wild for the Rio Grande silvery minnow and serious trouble for other species whose survival depends on adequate water from a USBR project."  The author concludes that if government is not "'free to preserve the fish,'" then "that would represent a loss of existing protection for species affected by USBR projects, an unwarranted extension of the Court's recent decision in NAHB, and a rollback of a statute whereby Congress made saving species from extinction the highest of national priorities."

Submission by Contributing Author Yelizaveta Batres.

Polar Bear Predictions in the Villanova Environmental Law Journal

03/25/2008

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Laura Navarro, Comment. What About the Polar Bears? The Future of the Polar Bears as Predicted by a Survey of Success Under the Endangered Species Act, 19 Vill. Envtl. L.J. 169 (2008).

In this law review comment, the author discusses the proposed listing of the polar bears as “threatened” under the ESA, and the effect of climate change on the species.  The first half of the article explains the Act and reviews prior delistings of species under the Act.  The second half analyzes the relationship between polar bears and the receding sea ice, the 1994 conservation plan, and the latest protection plan. The author concludes that “the inherent uncertainly of global climate change” renders impossible any predictions on “the exact success of a polar bear recovery plan.”  Nevertheless, a recovery plan should address climate change, human development in the bear habitat, and gain acceptance in the international community.

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Polar bear with cub, photo by Scott Schliebe from U.S. FWS
 
Special thanks to Yelizaveta (Liz) Batres, from West Palm Beach, Florida, for this submission.  
Liz will soon become a regular contributor to www.ESAblawg.com

Climate Change and ESA in new law review article

03/22/2008

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

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

OTHER RESOURCES

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

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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Disclaimer

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

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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