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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.

Wolves, Altantic Sturgeon & more from @ESAlawyer (Jan-Feb 2012)

02/11/2012

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Get your Endangered Species Act announcements sooner on Twitter @ ESAlawyer

COURT CASES & LAWYERLY LINKS

Maine: court says suit re: salmon take continues vs. dam operators bit.ly/yfUPsm

DDC court rejects special National Fire Plan Sec. 7 consultation regulations: no proof of need, current process works bit.ly/wWGZi2

Scholars: Craig, disaster, ecosystem resilience & inadequate remedy 2011 BYU L.Rev 1863; Lloyd, Citizen Suits & Defense ST038 ALI-ABA 627

2012 WL 278712: LandWatch, NPC in Ore sues FWS for approving Eugene to Veneta water supply pipeline; harm to listed plants, butterflies

ALJ says Farmton Local Plan, Volusia County, improves black bear protection consistent with law, prevents listing. 2012 WL 256233 (Fla.DOAH)

Earthjustice sues NMFS over approval of Navy sonar training in Pacific waters. b.globe.com/zb8Ppv

New lawsuit sprouting on loss of marbled murrelet habitat due to Oregon old growth logging bit.ly/zl9y3s

Court ok w/Alaskan fishing limits for Stellers sea lion bit.ly/xVtDJK PacNW chinook salmon limits coming soon bit.ly/wf9UG3

Recovery: Can ESA Go Beyond Mere Salvage? 42 Envtl. L. Rep. News & Analysis 10017; Salmon: Dam Preservation Under the ESA, 41 Envtl. L. 1363

FISH & WILDLIFE SERVICE

FWS: SuppDraft EIS for Tehachapi Upland MultiSpecies HCP 1.usa.gov/zZ4f9c The plan for condors at Tejon Ranch, CA 1.usa.gov/wdo5cB

FWS may list San Bernardino flying squirrel b/c feral cats & climate change (lost conifer & black-oak forest habitat) 1.usa.gov/zffnSS

FWS: Polar bear interim rule reissued, NEPA ongoing. No ESA take violation if complying with CITES & MMPA. 1.usa.gov/ApSydq

FWS says listing Hawaiian 'i'iwi may be warranted due to habitat loss, nonnative animals, avian disease, climate change 1.usa.gov/yaGAH9

NOAA FISHERIES/ NMFS

More Atlantic sturgeon: NOAA says Gulf of Maine DPS threatened, New York Bight & Chesapeake Bay DPSs endangered 1.usa.gov/zf9P0N

NOAA says habitat, dams, dredging, H2o quality endanger Carolina, So. Atlantic distinct population segments of sturgeon 1.usa.gov/wJFEqB

NMFS: 5-yr sei whale review underway. 1.usa.gov/xOTMr9 Consultation on incidental take for geophys survey, too. 1.usa.gov/x5k4Jo

NOAA revises leatherback sea turtle critical habitat in Pacific. 41914 sq.mi, 262 ft deep. Focus on jellyfish prey. 1.usa.gov/AqSdHW

MUSINGS & NEWS

On animal cruelty: new egg farming n.pr/xrYjtT leg hold trapping bit.ly/zH8M2W movie molds wolf image bit.ly/y7lkBQ

Choice of safety or species? Cal. Dept. Fish & Game sues U.S. Army Corps over post-Katrina tree ban on levees bit.ly/zSKqkn

Why the ESA? So we protect wildlife & learn stuff like this: fluid dynamics of shark skin denticles add thrust. bit.ly/xdNzJc

Big thought: will we find new life forms in subglacial lakes not touched in 25 million years? bit.ly/wiwq1S

Listing Mazama pocket gopher may affect urban density in WA bit.ly/wf6Hh1 Mixed review of prairie dog management bit.ly/x0mXhx

Cape Hatteras ORV rule protects seabirds bit.ly/wTGEOU La. state law limits enforcing shrimp net turtle device bit.ly/zs6D0C

FEMA wildfire clean up still protecting Houston toad bit.ly/x2oWH2 Listed CA frogs vs trout stocking for anglers bit.ly/zf46Ns

6500 acres, 100 Miss. gopher frogs, 1 crusading landowner. NoLa & AP: bit.ly/we1zVS & bit.ly/w4AFeK & bit.ly/zyVtXY

ESA in Delaware: UDel plant database (lotsa rare flora) bit.ly/zN1L7H & endangered listing for Atlantic sturgeon bit.ly/wUBi30

ESA in Okla: leaders fear impact on energy industry & say voluntary efforts should avoid listing Lesser Prairie Chicken bit.ly/A3kJ9B

Need an American Red Cross for wildlife: Mil-Wis Journal on whooping cranes & threat of TX drought on recovery effort. bit.ly/wDqpqT

Can't win in Canada: ESA requires best available info, but scientist says dorsal fin satellite tags may harm orcas. bit.ly/yWgcjD

Another ESA conflict: trail closures upset dog-owning AZ hikers; land managers say dogs scare listed bighorn sheep mydesert.co/wUJ9xS

Sierra Sun summary on grizzly bear litigation bit.ly/zCTHpA Seattle Times on leatherback critical habitat bit.ly/ycja18

POLITICS

Santorum says ESA prevents timber harvest huff.to/ykLUnP and climate change a hoax bit.ly/zEhUQX

House Nat.Res. proposes oil drilling in 3% ANWR. bit.ly/xZaoD1 Polar bear debate coming. huff.to/A8vygd & dfnd.us/xABgOg

Markey (D-Mass) dislikes significant portion of range policy, says too high a threshold for endangered species. wapo.st/wPbbwm

Revealing op-ed on lobbying to ignore science. bit.ly/Aohe4w U.S. Senator says ESA reform not (yet?) in works. bit.ly/wjwa6x

WOLVES

Chicago Op-Ed bit.ly/xAMLWF

Wisc. Op-Ed bit.ly/yHBXy2

MN rancher opinion: hunt flawed bit.ly/xxwUxj

Wolf: NM suit to stop hunt bit.ly/whAkZ5

WY wants to start hunt n.pr/wBQWNu

Mich says delist=victory bit.ly/zb0LYG

January's #ESAlawyer content re: Endangered Species Act

01/21/2012

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TWEETS FROM #ESAlawyer (Jan. 2012)

Case law:

20 Jan. Complex Casitas case involves ESA, public trust & Cal. H2o law. bit.ly/wZ32i9 Fish don't really need water, do they?

U.S. Fish & Wildlife Service

21 Jan. FWS lists 3 pythons, 1 anaconda as invasive species. http://1.usa.gov/xURGdK Maybe they'll stop eating the endangered Key Largo woodrats now?

21 Jan. "Endangered everything" not an option, so FWS offers National Fish, Wildlife, and Plants Climate Adaptation Strategy 1.usa.gov/zZXsVB

20 Jan. FWS reopens comment on 1.9 acres of critical habitat for endangered Chupadera Springsnail in Socorro County, New Mexico 1.usa.gov/zimkOI

19 Jan. it's official! FWS announces establishment of Everglades Headwaters National Wildlife Refuge and Conservation Area. 1.usa.gov/y2jhty

19 Jan. FWS: Recovery Plan for Hawaiian Waterbirds 1.usa.gov/wv1xr9

17 Jan. Lesson in predation: exotic pythons eat endangered wood rats. Will new "injurious species" announcement help? bit.ly/yi7kpO

17 Jan. Citing peer review opinion divide, FWS seeks comment re: proposed Mississippi gopher frog critical habitat 77 FR 2254 1.usa.gov/w7QhuY

15 Jan. Due to taxonomy changes, FWS seeks comment re: Pac.Coast population of western snowy plover crit.habitat 77 FR 2243 1.usa.gov/wsCTGV

13 Jan. Shiloh IV Wind Project proposes Habitat Conservation Plan for Cal. tiger salamander: 77 FR 1498 1.usa.gov/AtyERv & 1.usa.gov/wh0JwB

13 Jan. FWS may list humbolt marten (a West coast weasel) due to timber&fire, disease, habitat mngt & at-risk small populations 1.usa.gov/wCYR77

12 Jan. San Diego County Water Authority signs multiple species conservation plan to ease ESA permitting for 63 covered species bit.ly/xbi5LS

NOAA Fisheries

13 Jan. Species vs. National Security: NOAA on taking marine mammals incidental to U.S. Navy sonar operations 77 FR 842 see
1.usa.gov/wORyVO

12 Jan. NOAA: are beluga whale populations crashing? bit.ly/yE2wMl Is Right Whale Ship Strike Reduction Rule working? 1.usa.gov/AyucPF

12 Jan. NOAA announces recovery plan for Cal. Steelhead DPS 1.usa.gov/wLa8Qh Final plan online soon, draft plan at 1.usa.gov/ywtUAu

11 Jan. NOAA says no to delisting So.Ore./No.Cal. Evolutionarily Signif. Unit of coho salmon b/s insufficiently specific data 1.usa.gov/xoBeBP

Musings & More

19 Jan. Extirpation, maybe even mass extinction; fungus killed up to 6.7M bats, reports USA Today usat.ly/xQXO54

15 Jan. Not just a joke: Will NOAA join FWS? bit.ly/AoLVtz Capitol hill unsure. bit.ly/wrdfBZ NRDC opposed. bit.ly/A9ucpi

14 Jan. Relentlessly unsatisfied critics give Obama C- on animal welfare. huff.to/y16df7 Maybe they'd prefer Ron Paul? bit.ly/wmoJ0R

14 Jan. Western states petition for ESA reform bit.ly/xneo8a could succeed with this House of Representatives bit.ly/ABu5Bv

14 Jan. International aspects of ESA: monkey meat nyti.ms/wGbYft and elephant ivory bit.ly/AfWFkY

14 Jan. Hi readers. My career & ESAblawg.com remain in transition. Tweet renamed: @ESAlawyer Visit Earthblawg.com at St.Thomas Univ.

Republican Presidential Candidates on species conservation and the Endangered Species Act...

01/21/2012

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Recent tweets from #ESAlawyer:

Gingrich: Environmental stewardship is everyone’s responsibility... Despite flaws...ESA is essential conservation tool bit.ly/yLAdSY

Huntsman: Conservation is conservative. I am not ashamed to be a conservationist. bit.ly/Avxl0c

Paul: I can't find endangered species written in the Constitution and I don't think that's a federal function. bit.ly/wmoJ0R

Perry: need federal-state partnership with landowners & more bit.ly/wIgLxj don't prioritize birds over people bit.ly/w4nDEt

Romney: Cost benefit analysis, lead time for corporate compliance, marketplace orientation mi.tt/yFnCTu

Santorum: ESA is poorly crafted legislation. http://bit.ly/xNYK37

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Keith Who?

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

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Disclaimer

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

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Twitterings

16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

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

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

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

16 U.S.C. §1531(a)

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

16 U.S.C. §1531(b)

Reasons for the ESA

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

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

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

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

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

Reasons for ESA Reform

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

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

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

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

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

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

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

Notable quotables

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

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

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

Noah's orders

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

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

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