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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.

11th Cir says appropriations act narrowly repealed ESA for Everglades project: "Congress wanted the bridge built now."

09/25/2010

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

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of Appeals, Wilson, Circuit Judge, held that the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 repealed NEPA, FACA, and ESA for purposes of tribe's suits, and thus deprived federal courts of subject matter jurisdiction over suits.

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

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

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

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

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

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

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

11th Circuit largely deferential to FWS biological opinion in Everglades, but rejects habitat-based approach to incidental take statements

05/05/2009

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Miccosukee Tribe of Indians v. USA, No. 08-10799 (11th Cir. May 5, 2009)

REGIONAL CONTEXT: In 1948, the U.S. Army Corps of Engineers undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams…. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits the Cape Sable Seaside Sparrow against the Everglades Snail Kite, a hawk.  Kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates. Both birds are protected by the 1973 Endangered Species Act, 16 U.S.C. §1531 et seq. The Act outlaws the “take” of any endangered species.

STATUTORY BACKGROUND: The Endangered Species Act, Section 7(a)(2) requires every federal agency to ensure that its actions will not jeopardize the continued existence of any endangered species. 16 U.S.C. §1536(a)(2). To coordinate their efforts to comply with section 7(a)(2), the agencies involved, here the Army Corps of Engineers and the Fish & Wildlife Service, consult with each other…  If the proposed action would not jeopardize the species but still might result in incidental harm to it, the Service attaches to the biological opinion an incidental take statement establishing the terms and conditions under which the incidental take may occur. 50 C.F.R. § 402.14(i).

KEY FACTUAL BACKGROUND: In the early 1980s Congress authorized a restructuring of the Corps’ water management system in order to restore wildlife in the Everglades. Someone decided that the best way to figure out how to correct the unplanned environmental consequences was to undertake a series of trial-and-error tests… In 1995, under “Test 7,” the Corps began releasing large amounts of water through the S-12 gates…  In 1998, the Corps created an “Interim Structural and Operational Plan” that altered Test 7 by closing the gates during sparrow breeding season…  Between 1999 and 2002, the Corps and the Service consulted and developed the “Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow” (Interim Plan). During the same period, a regional drought cut the number of kites statewide in half, from 3,400 to 1,700 birds…  In 2002, the Corps then implemented the Interim Plan, which changed the S-12 water release schedule… Water began to back up north of the gates—in the kites’ critical habitat and on Miccosukee tribal land. Birds cannot sue, but a tribe can and this one did.  In November 2005 the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging its 2002 approval of the Interim Plan.  In November 2006 the Service issued another biological opinion… but it still found that the kite would not be jeopardized by allowing the Interim Plan to continue until 2010 or 2011 for the good of the sparrow.

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The Cape Sable seaside sparrow (picture above by  Lori Oberhofer from Everglades National Park) lives primarily in and around Everglades National Park. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels, needing favorable breeding conditions without long periods of interruption.  The Everglade Snail Kite (picture below from South Florida Water Management District), a type of hawk, lives in the marshes of Florida and Cuba.  Kites feed primarily on apple snails, which require periods of inundation to reproduce, but the birds nest in woody vegetation that dies off if that inundation lasts too long or if the water level goes too high. It is, in that respect, a Goldilocks kind of bird.  
SnailKiteAndSnailSFWMD.jpg

KEY RULINGS:  The Miccosukee Tribe launches a three-front assault on the 2006 biological opinion and the incidental take statement. The Tribe’s first contention is that the 2006 biological opinion is ‘not in accordance with law’ because it fails to follow proper procedures… The Tribe’s second contention is that the 2006 biological opinion is arbitrary and capricious because it arrives at conclusions that are counter to the scientific data in the record or are so implausible that they go beyond an acceptable difference of expert opinion... The tribe’s third contention is that the incidental take statement is deficient because it improperly quantifies incidental take in terms of habitat markers and fails to provide a meaningful trigger for re-consultation.

     HOLDING RE: IMPROPER PROCEDURES: The Tribe argues that the Service ignored a number of studies and scientists’ statements that show “alarming” and dramatic declines in the kite population. But the Tribe’s arguments do not hold water… While the 2006 biological opinion’s predictions do differ from those of some scientists who have studied the kite, the basic data is not in dispute and was taken into account by the Service when it drafted the opinion. That is all the Endangered Species Act requires the Service to do with the “best scientific and commercial data available.” 16 U.S.C. §1536(a)(2); Marsh, 490 U.S. at 377–78, 109 S. Ct. at 1861.
     The Tribe also contends that the legislative history of the Endangered Species Act demonstrates that Congress generally wished to “give the benefit of the doubt to the species.” H.R. Rep. No. 96-697, at 12 (1979) (Conf. Rep.), as reprinted in 1979 U.S.C.C.A.N. 2572, 2576. The Tribe argues that those nine words from the Joint Explanatory Statement of the Conference Committee, quoted in the House Conference Report, demand a presumption in favor of the species if the evidence is balanced between likely jeopardy and no jeopardy.  To begin with, we are reluctant to read into the words that Congress has enacted as law, words that it did not enact as law. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006)… Putting that reluctance aside for the time being, the context of the benefit of the doubt language in the conference report suggests only that agencies, including the Service, cannot hide behind uncertain scientific data to shirk their duties under the Act…
     Because the Tribe has not demonstrated that the Service failed to consider any major scientific work or any material fact when it rendered the 2006 biological opinion, we reject its procedural attack on the 2006 biological opinion.

     HOLDING RE: BIOP CONCLUSIONS:  The 2006 biological opinion concedes that the Interim Plan will continue to harm the kite habitat by flooding it…  The biological opinion acknowledges that the Interim Plan may also cause water levels to decline rapidly in kite habitat during the spring, threatening its nests.  However, the opinion concludes that “Degradation of designated critical habitat within WCA-3A is expected to continue under he Interim Plan but this is reversible with improved hydrologic conditions. No permanent loss of critical habitat is expected.”  …Evidently the Service is under the impression that flooding twenty percent of the kites’ critical habitat to a depth that kills the woody vegetation the bird likes to perch on, that drives off the apple snails it likes to eat, and that reduces its nesting success is not “adverse modification” of critical habitat within the meaning of the Act. The Service asserts that “no permanent loss of critical habitat is expected.” (emphasis added) But the Service does not cite, and we are unable to find, any decision holding that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification.” …  Whether short-term impacts on critical habitat amount to “adverse modification” depends to a large extent on the life cycle of the species. Some species may be eradicated if their habitats are negatively affected even for a relatively short time. Restoration of a habitat cannot resurrect the dead.
     Nevertheless… we limit our conclusion, of course, to the facts of this case. Those facts involve a long-term program for restoring the Everglades’ natural flow in a way that would cause temporary flooding of twenty percent of the critical habitat of a long-lived species of kite with a high adult survival rate and a wide range. The flooding is being done in an effort to avoid the extinction of an endangered sparrow in the area. The aim is to eventually restore the natural flow of the Everglades, a restoration which hopefully will benefit both endangered birds. In light of these facts, the Service’s determination in its 2006 biological opinion that the action will not jeopardize the kite or adversely modify its habitat within the meaning of the Endangered Species Act is not arbitrary and capricious.

     HOLDING RE: INCIDENTAL TAKE STATEMENT: The Tribe’s last contention is that the Fish & Wildlife Service’s incidental take statement is defective because it fails to specify, in numbers of birds, how much “take” is permissible. An incidental take statement may lawfully authorize harm to an endangered species as long as the statement sets a ‘trigger’ for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species. 50 C.F.R. § 402.14(i)(4)…  The Service’s “Final ESA Section 7 Consultation Handbook,” however, does provide guidance about how impact on the species may be measured… and it allows the Service to use, without specific justification, habitat impact measurements (also called “habitat markers”) to express take instead of using actual head counts of members of the species.  Legislative history recently led the Ninth Circuit to invalidate an incidental take statement. See Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1037 (9th Cir. 2007) (“Congress has clearly declared a preference for expressing take in numerical form, and an Incidental Take Statement that utilizes a surrogate easureinstead of a numerical cap on take must explain why it was impracticable to express a numerical measure of take.”)… We apply instead the rule that specific population data is required unless it is impractical. See Allen, 476 F.3d at 1037–38. The rule makes sense. The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.
     We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced.

KEITHINKING: Other noteworthy aspects of the decision include the distinguishing of Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)(suggesting that Congress intended “to give the benefit of the doubt to the species.”) by noting that Conner “does not suggest that there is any presumption in favor of the species if, as in this case, there is abundant data,” and the distinguishing of Rock Creek Alliance v. United States Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1008 (D. Mont. 2005) (“tie in the evidence should go to the species.”) as “based in part on significant scientific blunders by the Service.”  The 11th Circuit also showed judicial restraint, accepting the biological opinion’s conclusions regarding whether the agency actions might jeopardize snail kite populations.  However, the 11th Circuit was not deferential to an ESA policy handbook, and after a discussion of Chevron, Christensen, Mead, and Skidmore, refused to grant the Service's interpretation of the ESA (as expressed in its policy manual) Chevron deference, reaching a different conclusion based on the statute.  Specifically, the Court held, based on Chevron step one, that Congress had clearly spoken, giving different instructions as to the requirements of an incidental take statement.

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

05/09/2008

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

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

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

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

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

For additional commentary and resources...

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

04/01/2008

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

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

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

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Keith Who?

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

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Disclaimer

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

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

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

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

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

16 U.S.C. §1531(a)

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

16 U.S.C. §1531(b)

Reasons for the ESA

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

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

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

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

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

Reasons for ESA Reform

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

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

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

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

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

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

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

Notable quotables

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

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

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

Noah's orders

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

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

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