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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.

FWS designates critical habitat for golden sedge

03/05/2011

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76 Fed. Reg. 11086 (Tuesday, March 1, 2011) / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R4–ES–2010–0003; MO 92210–0–0009–B4 / RIN 1018–AW55
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea (Golden Sedge)
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Carex lutea (golden sedge) under the Endangered Species Act of 1973, as amended. In total, approximately 202 acres (82 hectares) in 8 units located in Onslow and Pender Counties, North Carolina fall within the  boundaries of the critical habitat designation. DATES: This final rule becomes effective on March 31, 2011.

Carex lutea generally occurs on fine sandy loam, loamy fine sands, and fine sands with a pH of 5.5 to 7.2, and with a mean of 6.7. These soils are moist to saturated to periodically inundated. Carex lutea occurs in the Pine Savanna (Very Wet Clay Variant) natural community type. Community structure is characterized by an open to sparse canopy dominated by pond pine (Pinus serotina), and usually with some longleaf pine (P. palustris) and pond cypress (Taxodium ascendens). Carex lutea is threatened by fire suppression; habitat alteration such as land conversion for residential, commercial, or industrial development; mining; drainage for silviculture and agriculture; highway expansion; and herbicide use along utility and highway rights-of-way.

FWS says listing warranted but precluded for Sonoran population of the desert tortoise, North American wolverine, and two milkvetch species

12/17/2010

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As FWS recently explained in three decisions that species listing was warranted but precluded, budgets are getting tight.  Listing petitions (like everything else) feel the effects.

EXCERPT: In FY 2010, $10,471,000 is the amount of money that Congress appropriated for the Listing Program (that is, the portion of the Listing Program funding not related to critical habitat designations for species that are already listed). Therefore, a proposed listing is precluded if pending proposals with higher priority will require expenditure of at least $10,471,000, and expeditious progress is the amount of work that can be achieved with $10,471,000. Since court orders requiring critical habitat work will not require use of all of the funds within the critical habitat subcap, we used $1,114,417 of our critical habitat subcap funds in order to work on as many of our required petition findings and listing determinations as possible. This brings the total amount of funds we had for listing actions in FY 2010 to $11,585,417. The $11,585,417 was used to fund work in the following categories: Compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related, administrative, and listing program management functions; and high priority listing actions for some of our candidate species. For FY 2011, on September 29, 2010, Congress passed a continuing resolution which provides funding at the FY 2010 enacted level.

***

75 Fed. Reg. 78094 (Tuesday, December 14, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R2–ES–2009–0032; MO 92210–0–008
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Sonoran Population of the Desert Tortoise as Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to list the Sonoran population of the desert tortoise (Gopherus agassizii) as endangered or threatened and to designate critical habitat under the Endangered Species Act of 1973, as amended (Act). After review of all available scientific and commercial information, we find that listing the Sonoran population of the desert tortoise is warranted. Currently, however, listing the Sonoran population of the desert tortoise is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add the Sonoran population of the desert tortoise to our candidate species list. We will develop a proposed rule to list the Sonoran population of the desert tortoise as our priorities allow. We will make any determination on critical habitat during development of the proposed listing rule. In any interim period we will address the status of the candidate taxon through our annual Candidate Notice of Review (CNOR). DATES: The finding announced in this document was made on December 14, 2010.

SonoranDesertTortoise2.jpg
KEITHINKING: Listing of the desert tortoise presents significant concerns for land use development projects in Arizona.  See, Arizona Game and Fish guidelines for handling the species when discovered in development projects.  Photo from AzGFD.

LINKS: See FWS, Tucson Citizen, the Western Watersheds Project, a natural history of the species webpage.

***

75 Fed. Reg. 78030 (Tuesday, December 14, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R6–ES–2008–0029; MO 92210–0–0008–B2
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the North American Wolverine as Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the North American wolverine (Gulo gulo luscus) as an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After review of all available scientific and commercial information, we find that the North American wolverine occurring in the contiguous United States is a distinct population segment (DPS) and that addition of this DPS to the Lists of Endangered and Threatened Wildlife and Plants is warranted. Currently, however, listing the contiguous U.S. DPS of the North American wolverine is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add the contiguous U.S. DPS of the wolverine to our candidate species list. We consider the current range of the species to include portions of the States of Washington, Idaho, Montana, Wyoming, Colorado, Utah, Oregon, and California. However, due to the dispersal abilities of individual wolverines, we expect that wolverines are likely to travel outside the currently occupied area. We will develop a proposed rule to list this DPS as our priorities allow (see section on Preclusion and Expeditious  Progress). We will make any determination on critical habitat during development of the proposed listing rule. In the interim, we will address the status of this DPS through our annual Candidate Notice of Review. DATES: This finding was made on December 14, 2010.

LINKS: See Outdoor News Daily and Minneapolis Star Tribune, Denver Post and a noteworthy commentary opposing species reintroduction in Colorado from the Huffington Post.

***

75 Fed. Reg. 78514 (Wednesday, December 15, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / FWS–R6–ES–2010–0080; MO 92210–0–0008–B2
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List Astragalus microcymbus and Astragalus schmolliae as Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service/USFWS), announce a 12-month finding on a petition to list Astragalus microcymbus (skiff milkvetch) and Astragalus schmolliae (Schmoll’s milkvetch) as endangered or threatened, and to designate critical habitat under the Endangered Species Act of 1973, as amended (Act). After a review of all the available scientific and commercial information, we find that listing A. microcymbus and A. schmolliae is warranted. However, currently listing of A. microcymbus and A.  schmolliae is  precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add A. microcymbus and A. schmolliae to our list of candidate species. We will make any determinations on critical habitat during development of the proposed listing rule. In any interim period, the status of the candidate taxon will be addressed through our annual Candidate Notice of Review. DATES: The finding announced in this document was made on December 15, 2010.

KEITHINKING: Federal action for Astragalus microcymbus and Astragalus schmolliae (then A. schmollae) began as a result of a 1975 Smithsonian Institution report suggesting these species be deemed endangered.  In 1993, the Biodiversity Legal Foundation petitioned to list the species, and in 2007, Forest Guardians (now WildEarth Guardians) made a similar request as part of a petition to list 475 plant species.  See ESA blawg critique of bulk petitions.

FWS extends public comment on Lane Mountain Milk-Vetch, finds listing of Wright's Mash thistle warranted but precluded

11/08/2010

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75 Fed. Reg. 67676 (Wednesday, November 3, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R8–ES–2009–0078; MO 92210–0–0009–B4 / RIN 1018–AW53
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for Astragalus jaegerianus (Lane Mountain Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our April 1, 2010, proposed revised designation of critical habitat for Astragalus jaegerianus (Lane Mountain milk-vetch) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability  of a draft economic analysis (DEA) of the proposed revised designation of critical habitat for Astragalus jaegerianus and an amended required determinations section of the proposal. We are reopening the comment period for an additional 30 days to allow all interested parties an opportunity to comment on the items listed above. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.

***
75 Fed. Reg. 67925 (Thursday, November 4, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R2–ES–2009–0060; MO 92210–0–0008
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Cirsium wrightii (Wright’s Marsh Thistle) as Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.

WrightsMarshThistle.jpg
The habitat of the Wright's marsh thistle in New Mexico includes wet, alkaline soils in spring seeps and marshy edges of streams and ponds; 1,130-2,600 m (3,450-8,500 ft).  However, desert springs and cienegas are susceptible to drying-up or being diverted. Populations in the city of Roswell, Chavez County, at Lake Valley, Sierra County, and at San Bernardino Cienega in Arizona appear to be extirpated. Introduction of insects as biological control for weedy thistles may pose a grave hazard for non-weedy thistle species.

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to list Cirsium wrightii (Wright’s marsh thistle) as endangered or threatened  and to designate critical habitat under the Endangered Species Act of 1973, as amended. After review of all available  scientific and commercial information, we find that listing C. wrightii as endangered or threatened throughout its range is warranted. Currently, however, listing of C. wrightii is precluded by higher priority actions to amend  the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add C. wrightii to our candidate species list. We will develop a proposed rule to list C. wrightii as our priorities allow. We will make any determination on critical habitat during development of the proposed rule. In the interim period, we will address the status of the candidate taxon through our annual Candidate Notice of Review. DATES: The finding announced in this document was made on November 4, 2010.


EXCERPT: Cirsium wrightii faces threats from present or threatened destruction, modification, and curtailment of its habitat, primarily from natural and human-caused modifications of its habitat due to ground and surface water depletion, drought, and invasion of Phragmites australis (Factor A), and from the inadequacy of existing regulatory mechanisms (Factor D). Cirsium wrightii occupies relatively small areas of seeps, springs, and wetland habitat in an arid region plagued by drought and   ongoing and future water withdrawals. The species’ highly specific requirements of saturated soils with surface or subsurface water flow make it particularly vulnerable to these threats to an extent that the species may become endangered within the foreseeable future, depending primarily on how much modification or drying of its limited amount of habitat may occur. We find that Cirsium wrightii is likely to become endangered throughout all or a significant portion of its range within the foreseeable future based on the threats described above.

FWS says listing of St. Croix agave warranted but precluded by other higher priority species needs

09/25/2010

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75 Fed. Reg. 57721 (Wednesday, September 22, 2010) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket number FWS-R4-ES-2010-0051 / MO 92210-0-0008-B2
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Agave eggersiana (no common name) as Endangered

SUMMARY: We, the Fish and Wildlife Service (Service), announce a 12–month finding on a petition to list the plant Agave eggersiana (see species profile) as endangered under the Endangered Species Act of 1973, as amended (Act). After review of all available scientific and commercial information, we find that listing A. eggersiana is warranted. Currently, however, listing A. eggersiana is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add A. eggersiana to our candidate species list. We will develop a proposed rule to list A. eggersiana as our priorities allow. We will make any determination on critical habitat during development of the proposed listing rule. In any interim period the status of the candidate taxon will be addressed through our annual Candidate Notice of Review (CNOR). DATES: The finding announced in this document was made on September 22, 2010.

AgaveEggersiana.jpg
Agave eggersiana is a flowering plant of the family Agavaceae (century plant family) endemic to the island of St. Croix in the U.S. Virgin Islands. A.eggersiana is distinguished from other members of the Agavaceae family by its fleshy, nearly straight leaves with small marginal prickles.  Its flowers are deep yellow, 5 to 6 centimeters (cm) (1.95 to 2.34 in) long. Avave eggersiana is not known to produce fruit, and requires at least 10 to 15 years to develop as a mature individual.  Avave eggersiana like other Agave species are monocarpic, meaning the plant dies after producing the spike or inflorescence.  Photo from St. George Village Botanical Garden.

HISTORY: On November 21, 1996, FWS received a petition from the U.S. Virgin Islands Department of Planning and Natural Resources (DPNR) requesting listing Agave eggersiana as endangered. In 2010, the Division of Fish and Wildlife of the DPNR conducted a local status review to determine the extent of the populations of Agave eggersiana in St. Croix. They reported five sites where the species was found

EXCERPT RE: FIVE FACTOR ANALYSIS: This status review identified threats to the species attributable to Factors A, B, D, and E. Of the currently known populations, only three populations are located in areas managed for conservation and public outreach (Ruth Island, Salt River Bay, and Buck Island National Monument). The remaining populations, containing about 97 percent of the currently known adult individuals, are located in areas either threatened by development pressure, or are currently affected by landscape practices and competition with exotic species, resulting in detrimental effects to reproduction and recruitment (see Factors A and E). Furthermore, the use of the Agave eggersiana as an ornamental   species is common on the island, and evidence suggests that wild specimens are being collected due to the commercial interest in this species (Factor B). Although the species is currently listed under local regulations, lack of enforcement of local law does not provide adequate protection to ameliorate threats to the species. (Factor D).

EXCERPT RE: PRIORITY: Although the species faces threats, as described above, we believe these threats to be of moderate to low magnitude; at least 450 adults and 260 bulbils are known to occur in 10 populations with half showing evidence of recruitment in the wild and 3 located in areas managed for conservation and public outreach. Under the 1983 Guidelines, a ‘‘species’’ facing imminent moderate to low magnitude threats is assigned an LPN of 7, 8, or 9 depending on its taxonomic status. Because A. eggersiana is a species, but not a monotypic genus, we assigned it an LPN of 8. While we conclude that listing the species is warranted, an immediate proposal to list this species is precluded by other higher priority listing actions.

FWS notices on midwestern species, including warranted but precluded finding on Sprague's Pipit

09/16/2010

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75 Fed. Reg. 56028 / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R6–ES–2009–0081 / MO 92210-0-0008
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Sprague’s Pipit as Endangered or Threatened Throughout Its Range
.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12–month finding on a petition to list the Sprague’s pipit (Anthus spragueii) as endangered or threatened and to designate critical habitat under the Endangered Species Act of 1973, as amended (ESA). After review of all available scientific and commercial information, we find that listing the Sprague’s pipit as endangered or threatened is warranted. However, listing the Sprague’s pipit is currently precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add the Sprague’s pipit to our candidate species list. We will develop a proposed rule to list Sprague’s pipit as our priorities allow. We will make any determination on critical habitat during development of the proposed listing rule. In the interim period, we will address the status of the candidate taxon through our annual Candidate Notice of Review (CNOR). DATES: The finding announced in this document was made on September 15, 2010.

SpraguesPipit.jpg
The Sprague’s pipit is a small passerine, first described by Audubon in 1844, and one of the few bird species endemic to the North American prairie.  Due to its cryptic coloring and secretive nature, the Sprague’s pipit has been described as "one of the least known birds in North America." Photo by Bob Gress available at FWS.

EXCERPT: Given the current and anticipated decline in suitable habitat on both the breeding and wintering grounds, the inadequacy of existing regulatory mechanisms to protect remaining habitat, and the long-term, ongoing population decline, we find that listing the Sprague’s pipit throughout its range (United States, Canada, and Mexico) is warranted. This status review identified threats to the Sprague’s pipit attributable to Factors A and D. The primary threat to the species is from habitat conversion and fragmentation (Factor A), especially due to native prairie conversion to other uses and fragmentation from energy (oil, gas, and wind) development...  

KEITHINKING: Although the listed was warranted, FWS here took the extra step to explain why further action was precluded at this time.  Adding hard data to the point previously made here at ESA blawg about the potential for the listing petition process to misdirect and otherwise consume limited resources, the warranted but precluded section of this announcement includes some economic data: "The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. The median cost for preparing and publishing a 90–day finding is $39, 276; for a 12–month finding, $100,690; for a proposed rule with critical habitat, $345,000; and for a final listing rule with critical habitat, the median cost is $305,000."  The notice, which comes at very close to the end of the fiscal year, listed the 62 completed listing actions to date, 16 funded but not yet complete actions subject to court order or settlement agreements, 69 different pending actions with statutory deadlines (many of which included multiple species, and some of them including hundreds of species), and pending high-priority listing actions on 55 species.

***

75 Fed. Reg. 55820 / Vol. 75, No. 177 / Tuesday, September 14, 2010 / Notices
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
FWS–R3–ES–2010–N129; 30120–1113–0000–C4
Endangered and Threatened Wildlife and Plants; 5-Year Status Reviews of Seven Midwest Species

SUMMARY: We, the U.S. Fish and Wildlife Service, are initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), of seven animal and plant species. We conduct these reviews to ensure that our classification of each species on the Lists of Endangered and Threatened Wildlife and Plants as threatened or endangered is accurate. A 5-year review assesses the best scientific and commercial data available at the time of the review. We are requesting the public to send us any information that  as become available since the most recent status reviews on each of these species. Based on review results, we will determine whether we should change the listing status of any of these species. DATES: To ensure consideration, please send your written information by November 15, 2010. However, we will continue to accept new information about any listed species at any time.

trifoliumStoloniferum.jpg
The seven species are: endangered Higgins eye (Lampsilis higginsii), endangered Iowa Pleistocene Snail (Discus macclintocki), endangered Hungerford’s crawling water beetle (Brychius hungerfordi), threatened Missouri bladderpod (Physaria filiformis), endangered Running buffalo clover (Trifolium stoloniferum), threatened Western prairie fringed orchid (Platanthera praeclara), and threatened Pitcher’s thistle (Cirsium pitcheri).  Running buffalo clover (pictured above from U.S. Forest Service) occurs in mesic habitats of partial to filtered sunlight, where there is a prolonged pattern of moderate periodic disturbance, such as mowing, trampling, or grazing.  According to the Recovery Plan, and depending on the outcome of this status review, delisting of the plant species may soon be appropriate, because since its listing in 1987, the known number of  populations has dramatically increased as survey efforts have expanded throughout the historic range, and some initially identified potential threats do not appear to be a risk to the species.

***

75 Fed. Reg. 55686 / Vol. 75, No. 177 / Tuesday, September 14, 2010 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R3–ES–2010–0068; 92220–1113–0000–B3 / RIN 1018–AX28
Endangered and Threatened Wildlife and Plants; Technical Corrections for Three Midwest Region Plant Species

SUMMARY: We, the U.S. Fish and Wildlife Service, announce the revised taxonomy of Lesquerella filiformis (Missouri bladderpod), Sedum integrifolium ssp. leedyi (Leedy’s roseroot), and Mimulus glabratus var. michiganensis (Michigan monkeyflower) under the Endangered Species Act of 1973, as amended (Act). We are revising the List of Endangered and Threatened Plants to reflect the current scientifically accepted taxonomy and nomenclature of these species. We revise the scientific names of these species as follows: Physaria filiformis (=Lesquerella f.), Rhodiola integrifolia ssp. leedyi (=Sedum integrifolium ssp. l.), and Mimulus michiganensis (=M. glabratus var. michiganensis), respectively. DATES: This rule is effective December 13, 2010, without further action, unless significant adverse comment is received by October 14, 2010. If significant adverse comment is received, we will publish a timely withdrawal of the rule in the Federal Register.

KEITHINKING: Interesting notice and comment process allows for rapid action provided there is not a strong public reaction.

Interpreting plant provisions of the ESA, 9th Circuit shows restraint, encourages FWS to adopt rules

08/31/2010

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Northern California River Watch v, Wilcox, No. 08-15780,(August 25, 2010)(Dorothy W. Nelson, William A. Fletcher, and Richard A. Paez, Circuit Judges).

SUMMARY:
   Robert Evans and Northern California River Watch (“River Watch”) appeal the district court’s grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively “Defendants”). River Watch contends that Defendants violated the Endangered Species Act (“ESA”), codified at 16 U.S.C. § 1531 et seq. Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction. See 16 U.S.C. § 1538(a)(2)(B).
   The district court granted Defendants’ motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were “areas under Federal jurisdiction.” On appeal, we consider the meaning of the term “areas under Federal jurisdiction” as used in ESA § 9. River Watch argues that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as “waters of the United States” by the Army Corps of Engineers. The United States, representing the interests of the Department of the Interior’s Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that we must apply the deference principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an “area under Federal jurisdiction.”
   Although we agree that the term “areas under Federal jurisdiction” is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (“FWS”), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that “areas under Federal jurisdiction” does not include the privately-owned land at issue here. We therefore agree with the district court’s ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants.

FACTUAL BACKGROUND:
   William and Frank Schellinger are brothers and business partners who seek to develop 21 acres of private property in Sebastopol, California. These 21 acres (“the Site”) are comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales.  After learning of the discovery of Sebastopol meadowfoam, California Department of Fish & Game (CDFG) Habitat Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site’s development Scott Schellinger, visited the Site in order to further investigate the presence of the plants. Wilcox, 547 F. Supp. 2d at 1073. Wilcox confirmed that the vegetation was the endangered plant species Sebastopol meadowfoam. (Photo below from USDA Natural Resources Conservation Service).  In examining the plants to determine whether they were rooted in the soil and thus naturally occurring, Wilcox lifted the plants, along with their substrates, out of the wetland. Because the CDFG employees suspected that the plants were not naturally occurring, Cooley later returned to the Site to gather evidence. Wilcox, 547 F. Supp. 2d at 1073. Upon his return visit, he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office, where he placed most of the plants in an evidence locker. Id. at 1073, 1079.

SebastMeadowfoam.jpg
Limnanthes vinculans, or Sebastopol meadowfoam, is an endangered species of meadowfoam found only in the Laguna de Santa Rosa in Sonoma County, California, USA and an area slightly to the south in the Americano Creek and Washoe Creek watersheds. Like the other meadowfoams, it is a small annual herb, with multiple stems growing up to 30 centimeters (12 inches) in height; white flowers occur singly at the ends of stems.  This species is only known from approximately 30 locations in the laguna de Santa Rosa and southern Cotati Valley of Sonoma County, in these areas it occurs in wet meadows and around vernal pools at elevations of under 300 meters. Photo credit: Mark W. Skinner @ USDA-NRCS PLANTS Database

EXCERPT RE: CHEVRON STEP ONE:
   The prohibitions at issue here are found at § 9(a)(2)(B), which states that it is unlawful to: remove and reduce to possession any endangered species of plants from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. Id. § 1538(a)(2)(B) (emphasis added). The meaning of “areas under Federal jurisdiction” is not immediately clear, nor is it explicitly defined in the ESA. “Jurisdiction, it has been observed, is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)
   Therefore, we conclude that the meaning of the statutory text “areas under Federal jurisdiction” is not plainly clear from the text of the ESA, nor does the ESA’s legislative  history elucidate Congress’ intent in using the term. We agree with the district court’s conclusion that “Congress did not explain what it meant by ‘areas under Federal jurisdiction,’ ” and we proceed to examine whether the FWS’s interpretations offered in the United States’ amicus brief satisfy the requirements set forth in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

EXCERPT RE: CHEVRON STEP TWO:
   The United States cites three rules, which were promulgated by the FWS using formal rule-making authority, as evidence of the FWS’s interpretation of the phrase “areas under Federal jurisdiction.” The three rules designate certain plant species as endangered or threatened. None of these rules, however, interprets “areas under Federal jurisdiction;” instead, the rules use the phrase in passing and somewhat interchangeably with the term “federal lands.” Thus, the three rules do not provide an agency interpretation to which we could defer under Chevron...
   The United States also urges us to give Chevron deference to an “interpretation” of “areas under Federal jurisdiction” found in the Habitat Conservation Planning And Incidental Take Permit Processing Handbook, an FWS guidance manual for conducting the  Incidental take permit program under ESA § 10. Habitat Conservation Planning And Incidental Take Permit Processing Handbook (1996).  The Handbook states that “the ESA does not prohibit the incidental take of federally listed plants on private lands unless the take or the action resulting in the take is a violation of state law (which in most cases eliminates the need for an incidental take permit for plants).” Id. at 3-17. Although issued after public notice and comment, see 61 Fed. Reg. 63,854 (Dec. 2, 1996); 59 Fed. Reg. 65,782 (Dec. 21, 1994), the Handbook is not deserving of Chevron deference. First, “interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” ...  Finally, the 300+ page Handbook does not discuss “areas under Federal jurisdiction” other than in one paragraph where it restates the statute. In sum, the focus of the Handbook is the § 10 incidental take permit program, and any interpretation one might glean from the Handbook is attenuated at best.
   we hold that contrary to the United States’ arguments, the FWS has not yet interpreted “areas under Federal jurisdiction.”

EXCERPT RE: JUDICIAL CONSTRUCTION OF SECTION 9(a)(2)(B):
   Without any agency interpretation of “areas under Federal jurisdiction” to which we must defer, we proceed to interpret the term. We agree with the district court that River Watch’s proposed construction of § 9(a)(2)(B) is not tenable. The potential for overbreadth posed by interpreting “areas under Federal jurisdiction” as including all “waters of the United States” is simply too large...
  ...We hold that River Watch has not established that the plain language of the ESA mandates that “waters of the United States” are “areas under Federal jurisdiction.” We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret “areas under Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its  regulations. Although our ruling will constitute “binding law,” we recognize that under Brand X Internet Servs., 545 U.S. 967, 986 (2005)., we are not the “authoritative interpreter” of “areas under Federal jurisdiction.” See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

KEITHINKING: Seems as though Chevron deference is becoming increasingly less deferential...  This case also involved a sinister subplot, as revealed in footnote 6, which states: "In the district court, the Schellingers alleged that the plants were illegally
transplanted to the Site in an effort to delay their development plans. Although this issue is disputed by the parties, it is irrelevant to our review."

In response to petition, FWS considering listing of Oklahoma grass pink orchid

08/25/2010

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75 Fed. Reg. 51969 / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R3-ES-2010-0034 / MO 92201-0-0008
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Oklahoma Grass Pink Orchid as Endangered or Threatened

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list Calopogon oklahomensis (Oklahoma grass pink orchid) as endangered or threatened under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing the plant species, C. oklahomensis, as endangered or threatened may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing C. oklahomensis as endangered or threatened is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12–month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

CalopogonOklahomensis.jpg
Calopogon oklahomensis has a forked corm (a modified underground stem), with the new corm at the base of the leaf and the inflorescence (a branching stem with flowers) rapidly growing distally at the time of anthesis (the period from flowering to fruiting). The flower buds are deeply grooved longitudinally, waxy and shiny, with elongated acuminate apices (narrowing to a point at the tip). The flowers are fragrant and open in succession.  Calopogon oklahomensis occupies moist, loamy prairies, savannas, and sandy woodlands from central Minnesota southward to Texas, including the States of Wisconsin, Iowa, Illinois, Indiana, Kansas, Missouri, Tennessee, Arkansas, Oklahoma, Mississippi, Louisiana, and Florida, with a few scattered populations further east in South Carolina, Georgia, and Alabama. C. oklahomensis appears to prefer moist to seasonally dry-mesic prairies, prairiehaymeadows, savannas and open woodlands, avoiding the wetter habitats preferred by other species of Calopogon. This species appears to thrive under a frequent burning regime or haymeadow management where most or all of the above ground vegetation is effectively removed once every 1 to 2 years, with  subsequent flowering within a year after the last burn or haymowing.  Plant photo taken at at Roth Prairie in
central Arkansas, available online from Tennessee Native Plant Society

Two plants, two stories: sole specimen of soon-to-be-listed San Francisco manzanita left the Golden Gate Bridge for the Presido, but once rare Tennessee Purple Coneflower now recovering and soon to be delisted

08/12/2010

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75 Fed. Reg. 48294 / Vol. 75, No. 153 / Tuesday, August 10, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R8-ES-2010-0049 / MO-92210-0-0008-B2
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Arctostaphylos franciscana as Endangered with Critical Habitat

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list Arctostaphylos franciscana (Franciscan manzanita or San Francisco manzanita) as endangered under the Endangered Species Act of 1973, as amended, (Act) and to designate critical habitat. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status  of the species to determine if listing the species is warranted. To ensure that the status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12–month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

SanFranciscoManzanita.jpeg
Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family (Ericaceae) that may reach 2 or 3 feet in height when mature. Arctostaphylos franciscana is endemic (native and restricted) to the San Francisco peninsula, California, and historically occurred in areas with serpentine soils and bedrock outcrops.  The species has been reduced to the single remaining wild plant because of loss of its original habitat at all other known locations, and that single plant was recently relocated to the Presidio.  Photo by Michael Chasse / National Park Service, available online at Bay Nature.

EXCERPT RE: RELOCATING A ONE-OF-A-KIND.  Prior to October, 2009, Arctostaphylos franciscana had not been seen in the wild since 1947.  It was originally known from three locations: the Masonic and Laurel Hill Cemeteries in San Francisco’s Richmond district, and Mount Davidson in the south-central part of San Francisco...  In October 2009, an ecologist identified a plant growing in a concrete bound median strip along Doyle Drive in the Presidio as Arctostaphylos franciscana. The plant’s location was directly in the footprint of a roadway improvement project designed to upgrade the seismic and structural integrity of the south access to the Golden Gate Bridge. The identification of the plant as A. franciscana has since been confirmed with 95 percent confidence based on morphological characteristics. Additional tests of ploidy level indicate that the plant is diploid, consistent with A. franciscana.  Preliminary results from molecular genetic data also increase the confidence that the plant belongs to A. franciscana, although genetic analysis shows evidence that the plant is a descendant of a distant hybridization event, a situation that is thought to be quite common in the genus. Based on the best available scientific information we consider the species to be A. franciscana.

Several agencies, including the Service, established an MOA and conservation plan for the species. The conservation partners concluded it was not feasible to leave the plant undisturbed at its original site, due to impacts on public safety and to cultural resources related to a potential curtailment or redesign of the roadway improvement project.  The conservation plan recommended that the plant be moved to a new site within the Presidio. The plan included measures to take cuttings from the plant, both from non-rooted stems and from layering stems (stems which have rooted at their leaf nodes), for vegetative propagation.  The plan also called for collection and eventual propagation of seeds (including seeds in the soil around the plant’s original location), and for genetic testing of resulting plants (since seeds fertilized in the wild would likely produce hybrids). Additionally, because the roots of most Arctostaphylos individuals establish a mutually beneficial association with species of mycorrhyzal fungus living in the soil, the conservation plan established means by which the soil for propagating cuttings and seeds should be inoculated with spores from such fungi. The plan also evaluated potential translocation sites, established procedures for preparation of the new site and for the translocation itself, and called for management and monitoring (both short- and long-term) of the translocated plant and all newly propagated plants, with the goal of eventually establishing self-sustaining populations of the species in the wild.  The translocation of the Arctostaphylos franciscana plant to an active native plant management area of the Presidio was accomplished, apparently successfully and according to plan, on January 23, 2010. Subsequent monitoring reports indicate the plant continues to do well at its new location

LINKS: "The Presidio's Miracle Manzanita" by Bay Nature

***

75 Fed. Reg. 48896 / Vol. 75, No. 155 / Thursday, August 12, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R4–ES–2010–0059; 92220–1113–0000–C6 / RIN 1018–AW26
Endangered and Threatened Wildlife and Plants; Removing the Tennessee Purple Coneflower From the Federal List of Endangered and Threatened Plants

SUMMARY: Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the plant Echinacea tennesseensis (Tennessee purple coneflower) from the Federal List of Endangered and Threatened Plants due to recovery. This action is based on a thorough review of the best available scientific and commercial data, which indicate that this species’ status has improved to the point that E. tennesseensis is not likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Our review of the status of this species shows that all of the threats to the species have been eliminated or significantly reduced, adequate regulatory mechanisms exist, and populations are  stable. We also announce the availability of the draft post-delisting monitoring plan. This proposed rule completes the 5-year status review for the species, initiated on September 21, 2007.  

TennPurpleConeflower.gif
A member of the sunflower family (Asteraceae), Echinacea tennesseensis is a perennial herb with a long and fusiform (i.e., thickened toward the middle and tapered towards either end), blackened root. In late summer, the species bears showy purple flower heads on one-to-many hairy branches.  The flowers of this plant  nearly always face east, and the plant prefers full sun and well–drained average soil.  Photo from Tennessee DOT

EXCERPT: The Service first approved the Tennessee Coneflower Recovery Plan on February 14, 1983 and revised it on November 14, 1989.  According to the recovery plan, Echinacea tennesseensis will be considered recovered when there are at least five secure wild populations, each with three self-sustaining colonies of at least a minimal size. A colony will be considered self-sustaining when there are two juvenile plants for every flowering one. Minimal size for each colony is 15 percent cover of flowers over 669 square meters. Downlisting (reclassification from endangered to threatened) will be considered when each of the five secure wild populations has two colonies.  There were an estimated total of 146,000 individual plants in 1989. Recovery efforts have secured habitat for 19 colonies that are self-sustaining and distributed among six geographically defined populations. All but 1 of the 19 introduced colonies have greater than 100 flowering stems, and the estimated total number of plants in these colonies ranged from 866 to 52,997.  These 19 secured, self-sustaining colonies accounted for an estimated 761,055 individual plants in 2005, or approximately 83 percent of the total species’ distribution; colonies that we do not consider secure accounted for 159,224 individual plants, or approximately 17 percent of the total species’ distribution.  

FWS may list Mexican wolf, undertakes status reviews on fox squirrel, snail and more

08/06/2010

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75 Fed. Reg. 46894 / Vol. 75, No. 149 / Wednesday, August 4, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R2-ES-2010-0045 / MO 92210-0-0008
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Mexican Gray Wolf as an Endangered Subspecies With Critical Habitat
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on two petitions to list the Mexican gray wolf (Canis lupus baileyi) (Mexican wolf) as an endangered subspecies and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). Although not listed as a subspecies, the Mexican wolf is currently listed as endangered within the broader listing of gray wolves. Based on our review, we find that the petitions present substantial scientific or commercial information indicating that the Mexican wolf subspecies may warrant listing such that reclassifying the Mexican wolf as a separate subspecies may be warranted. One of the petitions also requested listing of the Mexican wolf as an endangered Distinct Population Segment (DPS). While we have not addressed the DPS portion of the petition in this finding, we will further evaluate that information during the status review. Therefore, with the publication of this notice, we are initiating a review of the status of the Mexican wolf subspecies to determine if listing the Mexican wolf as a subspecies or DPS is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding the Mexican wolf. Based on the status review, we will issue a 12–month finding on the petitions, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.
DATES: To allow us adequate time to conduct this review, we request that we receive information on or before October 4, 2010. After this date, you must submit information directly to the New Mexico Ecological Services Field Office

MexWolfAzZoo.jpg
In August 2009, FWS received petitions from the Center for Biological Diversity, WildEarth Guardians, and The Rewilding Institute requesting that the Mexican wolf be listed as an endangered subspecies or DPS and critical habitat be designated under the Act.   FWS reviewed the petitions and other information, and noted that it showed general agreement that the Mexican wolf is distinguishable from other gray wolves based on morphological and genetic evidence. Currently, Mexican wolves exist in the wild only where they have been reintroduced, and that population has oscillated between 40 and 60 wolves since 2003.  Photo above from the Arizona Zoological Society is one of many wonderful pics available at  mexicanwolves.org and the Lobos of the Southwest webpage, sponsored by a collaboration of conservation-minded groups working to protect the species.

***

75 Fed. Reg. 47025 / Vol. 75, No. 149 / Wednesday, August 4, 2010 / Notices
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
FWS–R5–ES–2010–N148; 50120–1113–0000–D2
Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Reviews of Five Listed Species: Delmarva Peninsula Fox Squirrel, Northeastern Bulrush, Furbish Lousewort, Chittenango Ovate Amber Snail, and Virginia Round-Leaf Birch
SUMMARY: Under the Endangered Species Act of 1973 (ESA), we, the U.S. Fish and Wildlife Service (Service), announce our initiation of 5-year reviews of five listed species: Delmarva Peninsula fox squirrel, northeastern bulrush, Furbish lousewort, Chittenango ovate amber snail, and Virginia roundleaf birch. A 5-year review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information that has become available since the original listing of each of these species. Based on the results of these 5-year reviews, we will make the requisite findings under the ESA. DATES: To allow us adequate time to conduct these reviews, we must receive your information no later than October 4, 2010.

EXCERPT: Categories of requested information include (A) Species biology, including but not limited to, population trends, distribution, abundance, demographics, and genetics; (B) habitat conditions, including but not limited to, amount, distribution, and suitability; (C) conservation measures that have been implemented that benefit the species; (D) threat status and trends; and (E) other new information, data, or corrections, including but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the list, and improved analytical methods.

FWS may list seven species of Hawaiian bees, the Honduran Emerald Hummingbird, and three Colorado plants

06/23/2010

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75 Fed. Reg. 34077 / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R1-ES-2010–0012 / MO 92210-0-0008-B2
Endangered and Threatened Wildlife and Plants; 90-Day Finding on Five Petitions to List Seven Species of Hawaiian Yellow-faced Bees as Endangered
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day  finding on five petitions to list seven species of Hawaiian yellow-faced bees (Hylaeus anthracinus, H. assimulans, H. facilis, H. hilaris, H. kuakea, H. longiceps, and H. mana) as endangered and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). We find that the petitions present substantial scientific or commercial information indicating that listing these seven species of Hawaiian yellow-faced bees may be warranted. Therefore, with the publication of this notice we are initiating a status review of these species and will issue 12–month findings on our determination as to whether the petitioned actions are warranted. To ensure that the status reviews are comprehensive, we are soliciting scientific and commercial data and other information  regarding these species. We will make a determination on critical habitat for these species if, and when, we initiate a listing action. DATES: To allow us adequate time to conduct this review, we request that information you submit be received by us on or before August 16, 2010.

HawaiiHylaeusBee.jpg
Most adult Hawaiian Hylaeus species consume nectar for energy; however, Hylaeus hilaris has yet to be observed actually feeding from flowers. Hylaeus hilaris and the four species related to it (H. hostilis, H. inquilina, H. sphecodoides, and H. volatilis) are known as cleptoparasites or cuckoo bees. The mated female does not construct a nest or collect pollen, but instead enters the nest of another species and lays an egg in a partially provisioned cell. Upon emerging, the cleptoparasitic larva kills the host egg and consumes the provisions, pupates, and eventually emerges as an adult. As a result of this lifestyle shift, H. hilaris bees have lost the pollen-collecting hairs that other species possess on the front legs. Cleptoparasitism is actually quite common among bees: approximately 25 percent of known bee species have evolved to become cleptoparasites. Photo of Native Hylaeus Bee by  S Plentovich from Hawaii Offshore Islet Restoration Committee.

EXCERPT: According to the petitions, degradation and loss of coastal and lowland habitat used by Hylaeus bees on all of the main Hawaiian Islands is the primary threat to these seven species. Coastal and lowland habitats have been severely altered and degraded, partly because of past and present land management practices, including agriculture, grazing, and urban development; the deliberate and accidental introductions of nonnative animals and plants; and recreational activities. In addition, the petitions present information indicating that fire is a potential threat to the habitat of these seven species in some locations.

***

75 Fed. Reg. 35746 / Vol. 75, No. 120 / Wednesday, June 23, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / FWS-R9-ES-2009-0094 / MO92210-0-0010-B6
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Honduran Emerald Hummingbird as Endangered

HonduranEmeraldHummingbird.jpg
The Honduran emerald hummingbird prefers arid interior valleys of thorn forest and shrub. Most of the hummingbird’s occurrences have been noted at elevations below 410 meters.  Image from The Hummingbird Society.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list as endangered under the Endangered Species Act of 1973, as amended (Act), the Honduran emerald hummingbird (Amazilia luciae). We find that the petition presents substantial scientific or commercial information indicating that listing the Honduran emerald hummingbird may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the Honduran emerald hummingbird to determine if listing is warranted. To ensure that the status review is comprehensive, we are soliciting  information and data regarding this species. DATES: To allow us adequate time to conduct this review, we request that we receive information on or before August 23, 2010.

EXCERPT: The petition and supporting information identified factors affecting the Honduran emerald hummingbird including land clearing for cattle grazing and agriculture, road construction and expansion, residential development (Factor A) and loss of genetic variability due to a small and declining population (Factor E). On the basis of information provided in the petition and other information in our files, we have determined that the petition presents  substantial scientific or commercial  information that listing the Honduran emerald hummingbird under the Act may be warranted.

***

75 Fed. Reg. 35721 / Vol. 75, No. 120 / Wednesday, June 23, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R6-ES-2010-0015 / MO 92210-0-0008-B2 / RIN 1018-AV83
Endangered and Threatened Wildlife and Plants; Listing Ipomopsis polyantha (Pagosa Skyrocket) as Endangered Throughout Its Range,  and Listing Penstemon debilis (Parachute Beardtongue) and Phacelia  submutica (DeBeque Phacelia) as Threatened Throughout Their Range

IpomopsisPlant.jpg
Pollination by bees is the most common means of reproduction for Ipomopsis polyantha, and the primary pollinators are a honey bee (Apis mellifera), metallic green bee (Augochlorella spp.), bumble bee (Bombus spp.), and digger bee (Anthophora spp.).  Photo by Al Schneider of Southwest Colorado Wildflowers, available online from USDA.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list Ipomopsis polyantha (Pagosa skyrocket), a plant species from southwestern Colorado, as endangered throughout its range, and Penstemon debilis (Parachute beardtongue) and Phacelia submutica (DeBeque phacelia), two plant species from western Colorado, as threatened throughout their ranges under the Endangered Species Act of 1973, as amended (Act). This proposal, if made final, would extend the Act’s protections to these species throughout their ranges. The Service seeks data and comments from the public on this proposal. DATES: We will consider comments received or postmarked on or before August 23, 2010.

EXCERPT: Each of the three endemic plant species proposed for listing in this rule is highly restricted in its range and the threats occur throughout its range. Therefore, we assessed the status of each species throughout its entire range. In each case, the threats to the survival of these species occur throughout the species’ range and are not restricted to any particular significant portion of that range. Accordingly, our assessment and proposed determination applies to each species throughout its entire range.

FWS considering listing Ozark chinquapin due, in part, to chestnut blight; and rejects petition to delist Sacramento Mountains thistle

06/05/2010

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75 Fed. Reg. 30313 / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R4-ES-2009-0020 / MO 92210-0-0008-B2
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List Castanea pumila var. ozarkensis
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90–day finding on a petition to list Castanea pumila var. ozarkensis (Ozark chinquapin), a tree, as endangered or threatened under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing this species may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the species to determine if listing Castanea pumila var. ozarkensis is warranted. To ensure that the review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12 month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

ozarkchinkapin2.jpg
Castanea pumila var. ozarkensis was historically a medium-sized tree species that once grew to 20 meters (m) (65 feet (ft)), although usually much shorter, but now rarely reaches heights of more than 9m (30 ft). Trunks develop from stump sprouts as well as from seeds, but in recent years, new growth is generally from sprouts. The chestnut blight has disrupted the life cycle of Castanea pumila var. ozarkensis by reducing the sexual reproduction to isolated areas, forcing the species to survive mainly by asexual reproduction. The blight has threatened the reproductive status and may threaten the genetic diversity of extant populations. The photo above shows an Ozark chinquapin covered with flowers (from Robert Barnes, published at  volstate.edu).

***

75 Fed. Reg. 30757 / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS-R2-ES-2008-0114 / 92220-1113-0000; ABC Code: C5
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to Delist Cirsium vinaceum (Sacramento Mountains thistle)

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 12–month finding on a petition to remove Cirsium vinaceum (Sacramento Mountains thistle) from the Federal List of Threatened and Endangered Plants under the Endangered Species Act. After reviewing the best scientific and commercial information available, we find that delisting C. vinaceum is not warranted. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the species or its habitats at any time. This information will help us monitor and encourage the conservation of this species.

CirsiumVinaceum.jpg
Cirsium vinaceum is an obligate wetland species that requires saturated soils with surface or subsurface water flow. Cirsium vinaceum habitats occur in mixed conifer forests and open valleys.  Cirsium vinaceum is a short-lived perennial. It lives as a rosette (a circular arrangement of leaves close to the ground) for one or more years, and eventually a stem bolts upward producing flower and seed. Flowering, the vehicle for reproduction, occurs only once, from late June through August, when pinkpurple flower heads form at the tips of stems. Seeds are usually produced through cross-pollination, a form of sexual reproduction requiring genes from 2 or more separate Cirsium vinaceum individuals;  however, this species is capable of reproducing asexually, using genetic material from a single individual to produce a clone. Pollen is carried by a variety of animal vectors, including several species of native bees, flies, butterflies, and hummingbirds.

EXCERPT: We found natural loss of water, trampling by livestock, predation by livestock and insects, and the inadequacy of existing regulatory mechanisms to be significant threats to C. vinaceum. We found lack of ensured water availability, increased water diversion, and the spread of insect predators by exotic weeds may threaten C. vinaceum in the foreseeable future. We also considered the ways in which the effects of climate change are likely to exacerbate the impacts caused by the above factors in the foreseeable future. As a wetland obligate species, Cirsium vinaceum occurs exclusively at springs, seeps, and drainage areas that are often widely dispersed and collectively comprise the significant portions of .
vinaceum’s range. Recent declines in reproducing C. vinaceum numbers and population sites, combined with the lack of ensured water availability, harmful levels of herbivory and trampling from noncompliant grazing practices, predation by insects, and the inadequacy of existing regulatory mechanisms, lead us to conclude that C. vinaceum should retain its current listing status as a threatened species.

FWS lists slickspot peppergrass as threatened species

10/15/2009

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74 Fed. Reg. 52014 / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Listing Lepidium papilliferum (Slickspot Peppergrass) as a Threatened Species Throughout Its Range AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine that Lepidium papilliferum (slickspot peppergrass), a plant species from southwest Idaho, is a threatened species under the Endangered Species Act of 1973, as amended (Act). This final rule implements the Federal protections provided by the Act for this species. We have determined that critical habitat for L. papilliferum is  prudent but not determinable at this time.

Lpapilliferum.jpg
Slickspot peppergrass is a monocarpic species (it flowers once and then dies) and displays two different life history strategies.  The annual form reproduces by flowering and setting seed in its first year, and dies within one growing season. The biennial life form initiates growth in the first year as a vegetative rosette, but does not flower and produce seed until the second.  Like many short-lived plants growing in arid environments, above-ground numbers of Lepidium papilliferum individuals can fluctuate widely from one year to the next, depending on seasonal precipitation patterns.  Sites with thousands of aboveground plants one year may have none the next, and vice versa. Above-ground plants represent only a portion of the population; the seed bank (a reserve of dormant seeds, generally found in the soil) contributes the other portion, and in many years constitutes the majority of the population. Seed banks are adaptations for survival in a ‘‘risky environment,’’ because they buffer a species from stochastic (random) impacts, such as lack of soil moisture. Photo by J.Ferguson from the Idaho Natiove Plant Society

EXCERPT:  From a statistical standpoint, the extreme variability in annual abundance or density estimates greatly reduces the ability to reliably detect a long-term trend in the population without many years of standardized data. ..  However, as we can reasonably anticipate the continuation or increase of all of the significant threats to L. papilliferum into the foreseeable future, even after accounting for ongoing and planned conservation efforts, and based on the observed significant negative correlation between the primary threats of wildfire and invasive nonnative plants, particularly B. tectorum, and the abundance of L. papilliferum, we can reasonably infer that the negative consequences of these threats on the species will continue, and, under current conditions, population declines will likely be observed within the foreseeable future to the point at which L. papilliferum will become an endangered species.

KEITHINKING: Here come the lawyers.  The very detailed analysis demonstrates that FWS knows what is coming: more litigation with ATVs and livestock interests.  The species has already been in and out of court.  See ESA blawg.  See also, story by Idaho’s KTVB and information page from The Idaho Governor’s Office of Species Conservation, and blogging by Demarcated Landscapes, the Westerner and Ralph Maughan

 
 

Hawaiian vine listed as endangered, and FWS reviewing new information on slickspot peppergrass

03/17/2009

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74 Fed. Reg. 11319 (Tuesday, March 17, 2009) / DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Listing Phyllostegia hispida (No Common Name) as Endangered Throughout Its Range / ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine endangered status under the Endangered Species Act of 1973, as amended (Act), for Phyllostegia hispida (no common name), a plant species from the island of Molokai in the Hawaiian Islands. This final rule implements the Federal protections provided by the Act for this species. We have also determined that critical habitat for P. hispida is prudent but not determinable at this time.

phyllostegiaHispidia.jpg
Phyllostegia hispida is known only from the island of Molokai, Hawaii, where 24 wild and 214 outplanted individuals currently exist.  A nonaromatic member of the mint family (Lamiaceae), P. hispida is a loosely spreading, many-branched vine that often forms large, tangled masses. Leaves are thin and flaccid with hispid hairs.  The plant Phyllostegia hispida has only a few recorded occurrences and until recently was thought to be extinct in the wild. Alterations of the plant’s native habitat by feral pigs and nonnative plants have been the primary threats to P. hispida.  See also AP story, photo and story from The Nature Conservancy.

***

74 Fed. Reg. 11342 / Vol. 74, No. 50 / Tuesday, March 17, 2009DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Listing the Plant Lepidium papilliferum (Slickspot Peppergrass) as Endangered / ACTION: Proposed rule; reopening of comment period and notice of document availability.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of new information relevant to our consideration of the status of Lepidium papilliferum (slickspot peppergrass), proposed for listing as endangered, under the Endangered Species Act of 1973, as amended (Act). We, therefore, announce the reopening of the comment period on the proposed listing and invite interested members of the public to submit comments on this new information as it applies to the status and proposed listing of L. papilliferum. Information previously submitted for this proposed listing need not be resubmitted, as all information already received regarding this proposed listing will be incorporated into the public record and fully considered in our evaluation.

NOTEWORTHY EXCERPT: We ask for comments concerning the new information contained in the analyses of Lepidium papilliferum population trends on the Orchard Training Area in southwest Idaho (Sullivan and Nations 2009), on the rangewide Habitat Integrity and Population (HIP) monitoring (Unnasch 2008), a recent analysis of L. papilliferum data collected on the Inside Desert (Owyhee Plateau) from 2000 to 2002 (Wells and Popovich 2009), and GIS analysis of Lepidium papilliferum (Stoner 2009)...  We have also specifically requested peer review of this new information and its relevance to the status of L. papilliferum from experts familiar with the species or its habitat;

SEE ALSO: ESA blawg postings about prior case history, clarification of court decision, andprior proposed rule in Federal Register

FWS proposes revised critical habitat for Cirsium loncholepis, a California thistle

08/06/2008

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73 Fed. Reg. 45806 (Wednesday, August 6, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Cirsium loncholepis (La Graciosa Thistle); Proposed rule).

CirsiumLoncholepis.jpeg
Cirsium loncholepis is a thistle capable of both self-fertilization (pollination events on the same individual) and cross-fertilization (pollination events between two individuals).  Its California habitat includes mats of low-growing, herbaceous, wetland plants, in soils with a sandy component, and in geographic areas with features that allow dispersal and connectivity between populations, such as allowing uninterrupted water flows or uninterrupted winds across these areas.  Photo from the CalPhotos Photo Database.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise the currently designated critical habitat for Cirsium loncholepis (La Graciosa thistle) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 38,447 acres (ac) (15,559 hectares (ha)) fall within the boundaries of this proposed revised critical habitat designation. The proposed revision is to critical habitat located in San Luis Obispo and Santa Barbara Counties, California. DATES: We will accept comments from all interested parties until October 6, 2008.

EXCERPT: The main differences (in the proposed rule revisions ) include the following: (1) The 2004 critical habitat rule consisted of two units comprising a total of 41,090 acres (16,629 ha). This proposed revision includes six units comprising a total of 38,447 ac (15,559 ha). Units 4, 5, and 6 are considered to be unoccupied currently and at the time of listing. In the 2004 final designation, Unit 2 Can˜ ada de las Flores (Unit 3 in the current revised proposed designation) was considered to be occupied at the time of listing and occupied in the final designation of critical habitat in 2004. For this revised proposed designation, we are considering it to currently be unoccupied All six units are within the historical range of the species. The decrease in acreage is due primarily to the removal of large areas of agriculture fields under private ownership that do not contain the appropriate spatial arrangement, quantity, or quality of the features essential to the conservation of the species. (2) We revised the PCEs. The 2004 critical habitat rule listed three PCEs that we determined were important to maintaining populations of Cirsium loncholepis where they occur (soils, plant communities, low cover of nonnative species, and physical processes that support natural dune dynamics). In our proposed revision of critical habitat, we list five PCEs in an effort to emphasize areas that are important for the long-distance dispersal of this species and for its metapopulation dynamics. (3) We included three areas in this proposal that were not included in the final designation. These areas include San Antonio Creek, San Antonio Terrace Dunes, and Santa Ynez River.

FWS refuses to delist the Peirson's milk-vetch, and ORV litigation looms once again

07/17/2008

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73 Fed. Reg. 41007 (Thursday, July 17, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To Delist Astragalus magdalenae var. peirsonii (Peirson’s milk-vetch); Notice of 12-month petition finding.)

Peirsonii.jpg
Astragalus magdalenae var. peirsonii (Peirson’s milk-vetch) is an erect to spreading, herbaceous, short-lived perennial in the Fabaceae (Pea family). Plants may reach 8 to 27 inches (in) (20 to 70 centimeters (cm)) in height and develop taproots that penetrate to the deeper, moister sand.  Photo from Bureau of Land Management.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to remove Astragalus magdalenae var. peirsonii (Peirson’s milk-vetch) from the Federal List of Threatened and Endangered Plants under the Endangered Species Act. After reviewing the best scientific and commercial information available, we find that the petitioned action is not warranted. We ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the species. This information will help us monitor and encourage the conservation of this species.

18 southeastern species under review by FWS

04/16/2008

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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.

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

FWS proposes critical habitat for California plant species

04/16/2008

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73 Federal Register 20600 (Wednesday, April 16, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum); 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 the proposed designation of critical habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum) under the Endangered Species Act of 1973, as amended (Act). We are also notifying the public that we have received new information concerning portions of three proposed critical habitat units (see ‘‘New Information Received’’ section) that may result in the final designation of critical habitat differing from the  proposed rule published on August 7, 2007 (72 FR 44232). We also announce the availability of the draft economic analysis (DEA) of the proposed critical habitat designation and announce 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 rule, the associated DEA, the new information we have received, and the amended required determinations section. Comments previously submitted on this rulemaking do not need to be resubmitted…  DATES: We will accept public comments received or postmarked on or before May 16, 2008.

TaraxacumCalifornicum.jpg
Photo of flowering California taraxacum from U.S. Forest Service

OTHER RESOURCES:

Regulation of lands under Clean Water Act did not trigger special Endangered Species Act protections for listed plant

03/10/2008

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Northern California River Watch v. Wilcox, 2008 U.S. Dist. LEXIS 17441, No. C 06-06685 CRB (N.D.Cal. Mar. 6, 2008)

BACKGROUND: This case involved the Sebastopol meadowfoam, a plant.   With respect to plants, the Endangered Species Act, Section 9 makes it is unlawful to “remove and reduce to possession any such species from areas under Federal jurisdiction... in knowing violation of any law or regulation of any State”  In addition, the California Endangered Species Act prohibits taking of endangered plant species; however, "an employee or agent of the department may, in the enforcement of this chapter, . . . confiscate plants or parts thereof when unlawfully taken, transported, possessed, sold, or otherwise . . . ." Cal. Fish & Game Code § 1910.

sebastmeadowfoam.jpg
Photo from USFWS

SUMMARY: In this case, California land managers and law enforcement officers discovered the meadowfoam on a 21-acre site in Sebastopol, CA, and relocated the plants because they believed it had been placed there.  To begin with, as a legal matter, Judge Charles Breyer rejected the Plaintiffs expansive reading of the ESA:

"the ESA provides greater protections for fish and wildlife than for plants. Yet, under plaintiffs' interpretation of "areas under Federal jurisdiction," plants found on private property that is regulated by the federal government under a federal law, such as the Clean Water Act, are entitled to more protections than fish and wildlife found on the same property... To accept plaintiffs' interpretation would mean that the removal of endangered plants on private property that is regulated by the federal government under some statute is nearly absolutely prohibited, but that exceptions (incidental takes) can be made for fish and wildlife on the same property.  Such an interpretation is inconsistent with the ESA's greater protections for fish and wildlife.”

In addition, the Judge rejected the Plaintiffs claims of wrongdoing by the California wildlife personnel, finding no evidence of a knowing violation of state law.

Plants only partly protected by ESA

02/19/2008

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Pursuant to the ESA, §9, “take” of animal species is prohibited.  Take has further been defined to include harm and harassment of animals.  Plants, however, receive significantly less protection pursuant to the ESA.

As FWS Virginia field office explained in a fact sheet: "It is not prohibited by the ESA to destroy, damage or move protected plants UNLESS such activities involve an endangered species on Federal land or if the action occurs in violation of State laws. If a person wishes to develop private land, with no Federal jurisdiction involved, in accordance with State law, then the potential destruction, damage, or movement of endangered or threatened plants does not violate the ESA."

This interpretation of the ESA has also been upheld by the federal courts.  See, California Native Plant Society v. Norton, 2004 WL 1118537 (S.D. Cal. Feb 3, 2004)(upholding §404 permit and biological opinion allowing transplanting of protected willowy monardella and rejecting argument that ESA prohibited take of plants).

monardella.jpg
Photo of willowy monardella from City of San Diego

Importantly, despite the inapplicability of the take prohibition to plant species, the ESA does offer some important protection against excessive plant collecting, because it restricts the import and export of listed plant species, an issue that arises, for example, with orchidcollectors.  

OTHER RESOURCES:
  • For more information about the applicability of the ESA to plants, see Kevin Regan, "Protecting Florida's Rare Plants from Extinction," Florida Bar Journal (July 1, 2003), available online.
  • Article clarifying misperceptions about ESA and CITES (Convention on International Trade in Endangered Species) available online, as published in Endangered Species Bulletin (Sept. 1, 2005)

FWS proposes listing of Hawaiian plant, Phyllostegia hispida, and requests public comments.

02/19/2008

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73 Fed. Reg. 9078 (Feb. 19, 2008)(Endangered and Threatened Wildlife and Plants; Listing Phyllostegia hispida (No Common Name) as Endangered Throughout Its Range)

Click here for a fact sheet from the State of Hawaii

Click here for photos of Phyllostegia

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list Phyllostegia hispida (no common name), a plant species from the island of Molokai in the Hawaiian Islands, as endangered under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act’s protections to this species. We have determined that critical habitat for Phyllostegia hispida is prudent but not determinable at this time.  We will accept comments received or postmarked on or before April 21, 2008. We must receive requests for public hearings, in writing, by April 4, 2008.

COMMENTARY: As the analysis in the Federal Register demonstrates, this species has repeatedly been thought extirpated in the wild, but new populations are occasionally found.  Currently, 33 plants are thought to exist in the wild, and there is only one plant known to exist in the wild that is reproductively mature.

FOLLOWING UP:
  • "One tiny, tiny, tiny step for endangered species," from Plenty Magazine online.

FWS revises critical habitat for Peirson’s milk vetch

02/14/2008

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73 Fed. Reg. 8748-8785 (FWS revises critical habitat for Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Astragalus magdalenae var. peirsonii (Peirson’s Milk-Vetch); Final Rule)

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating final revised critical habitat for Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 12,105 acres (ac) (4,899 hectares (ha)) fall within the boundaries of the revised critical habitat designation for A. m. var. peirsonii. The revised critical habitat is located in Imperial County, California. We are excluding Unit 2 from this revised designation based on the disproportionate economic and social impacts associated with the designation of this unit relative to the other units designated as critical habitat. This final revised designation constitutes a reduction of 9,758 ac (3,949 ha) from our 21,863 ac (8,848 ha) previous final designation of critical habitat for A. m. var. peirsonii published in 2004.  This rule becomes effective on March 17, 2008.  Click below for more on the economic analysis and decision to exclude portions of the habitat from the critical habitat designation.

Peirsonii.jpg
Photo from Bureau of Land Management

OTHER RESOURCES:
  • This final rule is available on the Internet at http://www.regulations.gov
  • FWS economic analysis re: impacts of critical habitat designation for Peirson’s milk-vetch
  • Center for Biological Diversity information page

FWS designates critical habitat for Berberis nevinii

02/13/2008

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73 Fed. Reg. 8412-8440 (Feb. 13, 2008)(Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Berberis nevinii (Nevin’s barberry))

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for Berberis nevinii (Nevin’s barberry) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 6 acres (ac) (3 hectares (ha)) in Riverside County, California, fall within the boundaries of the final critical habitat designation. This rule becomes effective on March 14, 2008.

Berberis_nevinii_small1.jpgBerberis_nevinii_small2.jpg
Photos from wikipedia

OTHER RESOURCES
  • The final rule, final economic analysis, and map of critical habitat will be available on the Internet at http://www.regulations.gov and http://www.fws.gov/carlsbad/
  • Center for Plant Conservationinformation page
  • Additional photos available at Los Angeles and San Gabriel Rivers Watershed Council

Monterey Spineflower Critical Habitat Designation

01/17/2008

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73 Fed. Reg. 1525-1554 (Jan. 9, 2008).  Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Monterey Spineflower (Chorizanthe pungens var. pungens).  
    BACKGROUND: On May 29, 2002, we [FWS] designated critical habitat for Chorizanthe pungens var. pungens on approximately 18,829 acres (ac) (7,620 hectares (ha)) of land in Santa Cruz and Monterey counties, California (67 FR 37498). In March 2005, the Homebuilders Association of Northern California, et al., filed suit against the Service (CV–013630LKK– JFM) challenging final critical habitat rules for several species, including Chorizanthe pungens var. pungens. In March 2006, a settlement was reached that requires the Service to re-evaluate five final critical habitat designations.
MontereySpineflower.jpg
Image from University of California, Santa Cruz
    CONCLUSION: The new rule is published as 50 C.F.R. §17.96(a), with notable subparagraphs as follows.  (1) Critical habitat units are depicted for Santa Cruz and Monterey Counties, California, in the included maps.  (2) The primary constituent element of critical habitat for Chorizanthe pungens var. pungens is a vegetation structure arranged in a mosaic with openings between the dominant elements (e.g., scrub, shrub, oak trees, or clumps of herbaceous vegetation) that changes in spatial position as a result of physical processes such as windblown sands and fire and that allows sunlight to reach the surface of specified sandy soils.  (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, airports, and roads) and the land on which such structures are located, existing within the legal boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created on base maps using aerial imagery from the National Agricultural Imagery Program (aerial imagery captured June 2005).  
    NOTABLE ANALYSIS: “We requested written comments from the public on the proposed revised designation of critical habitat for Chorizanthe pungens var. pungens in the revised proposed rule published on December 14, 2006 (71 FR 75189) and again in a subsequent notice of availability of the draft economic analysis published in the Federal Register on October 16, 2007 (72 FR 58618). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the revised proposed rule.”  The rule was also subjected to peer review.

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Keith Who?

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

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

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

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

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

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

16 U.S.C. §1531(a)

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

16 U.S.C. §1531(b)

Reasons for the ESA

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

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

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

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

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

Reasons for ESA Reform

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

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

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

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

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

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

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

Notable quotables

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

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

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

Noah's orders

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

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

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