Subscribe!

 Full Posts

Bloglines Subscribe in Bloglines
Newsgator Subscribe in NewsGator Online
MyYahoo
Google Add to Google
netvibes Add to Netvibes

Copyleft

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.

Creative Commons License

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.

gatorlogo2.gif

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.

uvaswords.jpg

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.

Eighth Circuit upholds Corps operations along Missouri River

02/21/2008

Category  
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 


In re: Operation of the Missouri River System Litigation,, No. 07-1149 (8th Cir. Feb. 8, 2008)(affirming lower court, upholding U.S. Army Corps operations along  Missouri River.)

BACKGROUND: In numerous federal courts, South Dakota, Nebraska, and Missouri sued each other over the U.S. Army Corps operations along the Missouri River, eventually leading to referral of the issue to the Judicial Panel on Multi-District Litigation.  At issue in this case was the fact that the Army Corps revised its "Master Manual" governing operations along the river to reflected the requirements of a U.S. Fish & Wildlife Service biological opinion issued pursuant to the Endangered Species Act in 2003.  Specifically, a "reasonable and prudent alternative" in the 2003 BiOp recommended that the Corps operations should include a "spring rise" for thirty days every three years, because the elevated waters would act as a spawning cue for the endangered pallid sturgeon, scour sandbars to allow endangered least terns and threatened piping plovers to nest more safely, and provide an influx of nutrients from the floodplain for all three species.  In March 2006, the Corps issued a "Record of Decision" revising its 2004 Master Manual to include a bimodal spring rise
plan.  Missouri, which has consistently opposed a spring rise because of its potential adverse effect on downstream flood control, commenced this action to enjoin implementation of the spring rise plan. Appealing the decision of U.S. District Court Judge Paul Magnuson, Missouri argued that the Army Corps 2006 Master Manual revision was a major federal action significantly affecting the human environment, and therefore the Corps violated the National Environmental Policy Act by failing to prepare an EIS or an SEIS. 42 U.S.C. § 4332(2)(C).

pallidsturgeon.jpg
Photo of endangered pallid sturgeon by Ken Bouc, Nebraska Game and Parks Commission, available online from U.S. FWS

OPINION AND ANALYSIS:  "The Corps spent over fourteen years preparing the 2004 FEIS which included a comprehensive environmental analysis of various spring rise plans...  Missouri argues that an SEIS was required because the Modified Conservation Plan adopted in the 2004 Master Manual did not include a spring rise and therefore the 2006 revision adopting a spring rise is a substantial change from the agency’s prior action. This contention is contrary to established law. A substantial change that requires an SEIS under 40 C.F.R.§ 1502.9(c)(1)(I) is one that is not “qualitatively within the spectrum of alternatives that were discussed” in a prior FEIS. Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292 (1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997), quoting Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, #29b (March 23, 1981).

More importantly, the Corps has not ignored the issue whether a bimodal spring rise plan will have significantly different environmental impacts. In an analysis “tiered” to the FEIS, the EA comprehensively compared the impacts of the bimodal spring rise in the 2006 Master Manual revision with the spring rise options studied in the FEIS and concluded that the bimodal spring rise plan is within the range of impacts previously studied and is not a substantial change from the historical range of release levels on the river. This was the proper inquiry under 40 C.F.R. § 1502.9(c)(1)(I). As there is no tenable claim of “significant new circumstances or information relevant to environmental concerns” within the meaning of 40 C.F.R. § 1502.9(c)(1)(ii), we agree with the district court that the Corps was not arbitrary or capricious in deciding not to prepare an SEIS."

For the complete opinion from the 8th Circuit, click here and search the February 2008 opinions.

OTHER RESOURCES:

Search

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

TFBcertifiedLogoSmaller.gif

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.

View Keith Rizzardi's profile on LinkedIn View my profile on Avvo

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)

TJ.jpg

"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."

TRphoto.jpg

"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