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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.

On appeal, 10th Circuit upholds FWS decisions related to reintroduction of Northern Aplomado Falcon in New Mexico

07/10/2010

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Forest Guardians v. U.S. Fish & Wildlife Service, Case No. 08-2226, --- F.3d ----, 2010 WL 2674990 (10th Cir., July 7, 2010)(Gorsuch, McKay and Holmes, Circuit Judges).

SUMMARY: On Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:06-CV-00231-WJ-KBM). Forest Guardians appeals the denial of its petition for review of the U.S. Fish and Wildlife Service's (“FWS”) decision to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons (“Falcons”) into southern New Mexico. Forest Guardians contends that the FWS violated section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1539(j), when it allegedly promulgated a final rule to release captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from an existing Falcon population. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the district court's denial of the petition for review.

EXCERPTS RE: BACKGROUND  Forest Guardians contends that the Falcon, an endangered species, should be permitted to repopulate the United States naturally, while enjoying full protection of its yet-to-be-designated critical habitat under the ESA. On the other hand, the FWS and The Peregrine Fund, which intervened in this action, advocate the release of captive-bred Falcons into southern New Mexico, while decreasing the Falcon's protection under the ESA. Our task is not to decide which strategy is more scientifically sound; rather, we must review the 10(j) rule under the Administrative Procedure Act (“APA”) to determine if the rule was promulgated in accordance with the ESA and NEPA…

In September 2002, Forest Guardians petitioned the FWS to designate critical habitat for the Falcon, pursuant to 16 U.S.C. § 1533(b)(3)(D), after a pair of Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks in 2002. Forest Guardians contended that the FWS should designate a critical habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was no longer extirpated from the United States. In subsequent years, other wild Falcons were increasingly sighted in that area. Nevertheless, the FWS did not respond to the petition.

In 2005, the FWS proposed a rule under section 10(j) of the ESA that would reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to establish a viable resident population of Falcons. (See Final Rule here.) )Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. 6819, 6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the Secretary to authorize the release of an experimental population of an endangered species “out-side the current range of such species if the Secretary determines that such release will further the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). Ordinarily, such a population “shall be treated as a threatened species,” rather than as an endangered species. Id. § 1539(j)(2)(C). If “an experimental population is determined ... to be not essential to the continued existence of a species,” the Secretary may not designate critical habitat for that population. Id. § 1539(j)(2)(C)(ii) (emphasis added). The FWS intended the proposed 10(j) rule to fulfill one of the goals identified in the Falcon's Recovery Plan, viz., to reestablish the Falcon in the United States.

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The Northern Aplomado Falcon, “perhaps one of our most colorful birds of prey,” see Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. 6686, 6686 (Feb. 25, 1986), is a medium-sized subspecies of the aplomado falcon historically located in the “savannas, coastal prairies, and higher-elevation grasslands” stretching across the southwestern United States through Mexico and into Guatemala and Nicaragua. In 1986, the Secretary of the Interior (listed the Falcon as endangered because it had been extirpated from its historic range in Arizona, New Mexico, and Texas for approximately thirty years and was known to nest only in Mexico. In listing the Falcon as endangered, the Secretary did not designate a critical habitat. Instead, FWS determined that the reintroduction of captive-bred Falcons as a nonessential experimental population would help to restore the Falcon and  achieve recovery goals.  Photo of Aplomado Falcon in Texas by Tim Cooper from Laguna Atascosa National Wildlife Refuge.
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EXCERPT RE: RULING.  In this case, the FWS closely followed the definitions upheld in Wyoming Farm Bureau Federation, 199 F.3d at 1231-32 (citing 16 U.S.C. § 1539(j); H.R.Rep. No. 97-567, at 8 (1982).  Accordingly, we conclude that the FWS's definition of what constitutes a population for purposes of the 10(j) rule is not in conflict with the plain language of the ESA and is a reasonable interpretation of that language. Forest Guardians acknowledges the precedential effect of Wyoming Farm Bureau Federation. However, Forest Guardians reasons that Wyoming Farm Bureau Federation does not offer definitive answers to the issues that it advances here -- whether there is substantial evidence in the record to support the FWS's conclusions that: (1) one breeding pair and the individual Falcons seen in New Mexico themselves do not constitute a population; (2) the dispersing Falcons in New Mexico were too distant from the Mexican population to form part of that population; and (3) the international border was a barrier that prevented a finding that there was such a population.  After carefully reviewing the record, we conclude that substantial evidence supports the FWS's first two conclusions. And we therefore need not reach the FWS's third conclusion. In particular, we note that the record contains several biologists' surveys that monitored the status of the Falcon in New Mexico and Mexico.

KEITHINKING:  As the 10th Circuit explained in this decision, and its prior ruling in Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231-33 (10th Cir.2000), "Congress amended the ESA in 1982 to broaden the FWS's discretion to reintroduce endangered and threatened species into their historic ranges. In particular, Congress added section 10(j) to authorize the FWS to designate certain reintroduced populations of endangered and threatened species as experimental populations.”  In practice, Section 10(j) provides a degree of flexibility for the FWS when it implements the Endangered Species Act to ease reintroduction efforts.  But that is precisely the reason that Section 10(j) repeatedly becomes the subject of litigation. By definition, people care about the the species we bother to reintroduce.  (The ecosystems care, too.)  As a result, strong opinions inevitably clash, often involving well-meaning but idealistic environmental groups who demand a rigid interpretation of the Endangered Species Act (or the administrative record), while simultaneously trying to convince the Courts to ignore the flexibility that Congress provided in that same statute.  See, e.g., ESA blawg on wolf reintroduction.  P.S.  The concurring opinion contains an interesting discussion related to use of the administrative record in NEPA disputes.
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10th Circuit finds ESA challenge to BLM project moot because of reintroduction of Aplomado falcons in New Mexico

06/11/2009

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

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

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

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

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

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

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

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

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

10th Circuit grants an ESA victory to Forest Service in Preble's mouse consultation case

01/04/2008

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Center for Native Ecosystems v. Cables (10th Cir., Dec. 17, 2007)(Forest Service's analysis in an "update" to an ESA consultation adequately considered "conservation", and as part of the administrative record, satisfied requirements of the ESA). Click here for opinion.

    BACKGROUND:  
    Pursuant to the ESA, the U.S. Forest Service completed a biological assessment in 1998 (the 1998 BA) analyzing the effects on the Preble’s mouse of the proposed revisions to a grazing allotment management plan.  FWS concurred with the 1998 BA’s conclusion that the allotment management plan revisions, “as described, renot likely to adversely affect Preble’s ouse”  However, FWS later designated critical habitat for the mouse.  In 2003 the Forest Service prepared a new biological assessment concluding that that “ere is no evidence of detrimental effects of livestock grazing" to the mouse.  In addition, in a 2004 update to the 1998 and 2003 BA, the Forest Service bserved that previously established mitigation measures were “leading to a stable or improving trend in riparian areas. These areas provide the mainstay of Preble’s habitat and are most important to conservation of the species.”

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Preble's mouse, from public domain clip art.

    EXCERPTS OF RULING:
    "We agree with CNE’s view of what the Forest Service was required to do: Section 1536(a)(2) requires federal agencies, when considering the effect of their actions on a species’ critical habitat, to consider the effect of those actions on the species’ recovery.  Contrary to CNE’s contention, however, we read the record as showing that the Forest Service did what was required. As the Forest Service points out on appeal, after the critical habitat for the Preble’s mouse was designated in June 2003, it did in fact consider recovery when it considered the effect of grazing on the conservation of the Preble’s mouse."
    In addition, the 10th Circuit found that the Forest Service did not err, even though it did not reinitiate ESA §7 consultation after the designation of critical habitat, because the Forest Service reasonably concluded that there were no additional effects for the species.  As the 10th Circuit explained, "FWS accepted the validity of the Forest Service’s methodology in January 2005 when it concurred in the 'not likely to adversely effect' finding for the Preble’s mouse’s critical habitat. The FWS’s concurrence at that time was expressly based on the Forest Service’s finding that there was 'appropriate utilization meeting the 1985 Forest Plan standards' ... The Forest Service’s 2004 conclusion that the effects of grazing were the same as those considered in 1998 was not arbitrary or capricious, and hence its determination that it need not reinitiate consultation on the effects of grazing on the Preble’s mouse did not violate the ESA."
   The Court also rejected plaintiffs Clean Water Act claims.

    COMMENTARY:
    The degree of deference given to Federal agencies by the 10th Circuit (especially when compared to many 9th Circuit cases!) remains noteworthy.  Here, the 10th Circuit declined to rewrite the federal agency's scientific analyses, and moreover, demonstrated willingness to dig deep into the administrative record to find evidence supporting the agency.  

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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