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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.

In Right whale case, D.C. Circuit finds the District Court wrong, and Coast Guard ESA dispute coming soon

07/20/2008

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Defenders of Wildlife v. Gutierrez, No. 07-5278 (July 18, 2008)

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Photo of dead Right whale, towed by U.S. Coast Guard, from Coast Guard News.com Right whales are mostly black in color, generally grow up to 45–55 feet in length, and can weigh up to 70 tons. Proposed Endangered Status for North Atlantic Right Whales, 71 Fed. Reg. 77,704, 77,705 (Dec. 27, 2006) (“Proposed Endangered Status”). Right whales are so named because, historically, they were considered the “right” (correct) whale to hunt due to their close proximity to coastlines, their relatively slow speed, the prized oils they contain, and the large volume of blubber that gives them a tendency to float when dead. Relatively recent population estimates show around 300 remaining right whales. Proposed Endangered Status, 71 Fed. Reg. at 77,705. Ship strikes are “the greatest source of known deaths” of right whales. Proposed Rule, 71 Fed. Reg. at 36,300.

SUMMARY (from Court opinion): This case concerns the North Atlantic right whale (Eubalaena glacialis) (“right whale”) and the role of National Marine Fisheries Service (“NMFS”) and the Coast Guard in the federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. We affirm the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reverse its summary judgment order relating to the Coast Guard’s actions.

D.C. Circuit defers to FWS on hybrid westslope cutthroat trout analysis, clarifies supplementation of administrative record

07/09/2008

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American Wildlands v. Kempthorne, No. 07-5179 (D.C. Cir. July 8, 2008)

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Westslope cutthroat trout (WCT) have a number of morphological characteristics that scientists use to identify the fish, such as a distinctive spotting pattern, coloring, and a typical number of vertebrae, scales, and bony projections called “gill rakers.” However, “morphology” is an imperfect science.  WCT genetic data allows biologists to detect “introgression” — the “entry or introduction of a gene from one gene complex into another” — in fish that otherwise conform morphologically to the subspecies. In this case, Plaintiffs challenged the decision by the U.S. Fish & Wildlife Service not to list the species, and questioned the agency’s reliance on morphology, because FWS had recognized that “a natural population of WCT with less than 20 percent of its genes derived from (foreign subspecies) is, most likely, morphologically indistinguishable from nonintrogressed populations of WCT with no hybrid ancestry.”  However, the Service also concluded that low levels of introgression can occur as a result of the natural evolutionary process and that such fish may “remain very valuable to the overall conservation and survival of that species.” Ultimately, the Service acknowledged that the problem of hybridization “remains the greatest threat to WCT,” but in the absence of genetic information, continued to rely upon morphology, and decided that the severity of the threat did not require listing of the species at the time. See Reconsidered Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 68 Fed. Reg. 46,989 (Aug. 7, 2003).  Photo from Washington Department of Fish and Wildlife.  

   SUMMARY (from opening of court's opinion): The westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family — a phenomenon called hybridization — has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act.

    On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case. Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record.

Humane Society v. Kempthorne (D.C.Cir.): another judicial decision applying mootness and vacatur in ESA context.

06/03/2008

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Humane Society v. Kempthorne and Safari Club, Nos. 06-5396 & 06-5397 (D.C. Cir., June 3, 2008).  In this case, environmentalists sought to preserve a district court victory on the regulation of the gray wolf even though the wolf was delisted during the ongoing appellate litigation.  The D.C. Circuit Court vacated the lower court's opinion, relying in part upon an analysis of the equities and the conclusion that "the orderly operation of the appellate system is not being frustrated."

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Photo of the grey wolf by Kate Cassidy from Wisconsin DNR.

BACKGROUND: Interior Secretary Kempthorne and Safari Club initially appealed a district court judgment enjoining the FWS “from authorizing the lethal take of any more gray wolves for depredation control purposes” by the Wisconsin Department of Natural Resources (Wisconsin DNR).  See Humane Soc’y of the United States v. Kempthorne, CV06-1279, slip op. at 34 (Aug. 9, 2006); id. Order (Sept. 6, 2006). The Humane Society of the United States (Humane Society) and other environmental organizations had sought the injunction because, in their view, the gray wolf, as an endangered species, could not be the object of a lethal depredation control program under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. The district court agreed.

RULING: However, while the appeal was pending, Interior removed the gray wolf population located in the Western Great Lakes Region (which includes Wisconsin) from the endangered species list.The parties agree that the delisting moots the appeal. The federal appellants and the Safari Club have moved to vacate the district court judgment and the Humane Society opposes vacatur...  We grant the appellants’ motion and vacate the district court judgment.

American Bird Conservancy v. FCC: D.C. Circuit orders reconsideration of cell phone tower rules to address bird collisions

02/21/2008

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American Bird Conservancy v. FCC, No. 06-1165 (Feb. 19, 2008)

SUMMARY: "The American Bird Conservancy and Forest  Conservation Council petition for review of an order by the Commission denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In Re Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance (“Order”), 21 F.C.C.R. 4462 (2006). Their petition claimed that Commission rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701 et seq. We vacate the Order because the Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications."

EXCERPTS OF OPINION: "Concerned about the effect of 'tower kill' on migratory birds in the Gulf Coast region of the United States, Petitioners, on August 26, 2002, formally requested that the Commission, among other things, (i) prepare an environmental impact statement (“EIS”) under NEPA analyzing the effects of all past, present, and reasonably foreseeable tower registrations on migratory birds in the Gulf Coast region; (ii) initiate formal consultation with the United States Fish and Wildlife Service (“FWS”) pursuant to the ESA regarding the Gulf Coast towers’ impact on various bird species; and (iii) take steps in  accordance with the MBTA to reduce bird mortality at Gulf Coast tower sites...  In April 2005, seeking to compel the Commission to act on the Gulf Coast petition, Petitioners filed a petition for a writ of mandamus in this court. Five days after oral argument, the Commission issued the Order denying in part, dismissing in part, and deferring in part the Gulf Coast petition. 21 F.C.C.R. 4,462. In dismissing the Gulf Coast petition, the Commission stated that it would address aspects of the migratory bird issue as part of a separate docket examining the issue on a nationwide basis..."

"Accordingly, except as regards deferral of the MBTA issue, we vacate the Order and remand the case to the Commission to comply with NEPA and ESA. The results of the (ongoing rulemaking) may inform the Commission’s decision on remand, but the nationwide proceeding neither incorporates nor supplants the Gulf Coast petition. The Commission has amassed a wealth of information during the past five years, including reports from other federal agencies such as the FWS, a report from its own consultant in 2004, as well as a second round of comments from interested persons. Guided by this opinion, the Commission should be able to proceed with dispatch on remand to resolve the Gulf Coast petition, whether separately or as part of the nationwide proceeding."

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Photos of birds collected from collision site, from www.wisconsinbirds.org (with numerous topical links)

COMMENTARY: Although the D.C. Circuit held that the FCC decision complied with the MBTA, and on that point, reasonably deferred the decision to a nationwide analysis, the Court held that the FCC violated NEPA because the FCC had erroneously refused to undertake an Environmental Impact Statement, or, at a minimum, and Environmental Assessment.  Similarly, the D.C. Circuit ordered the FCC to undertake the necessary consultation with FWS to comply with the ESA.  Fundamentally, the ruling has the effect of ordering the FCC to further consider the effects of cell towers on bird mortality -- something that the administrative record showed was already well underway at the FCC.  To see the full opinion,click here, otherwise...

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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