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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.

Federal courts publish recent opinions on Mexican spotted owls and grizzly bears

03/30/2010

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In this electronic era, I find it frustrating that Westlaw and Lexis cannot identify these cases sooner; nevertheless, here are two published cases finally uncovered by my preset searches...

***

In Precision Pine & Timber v. U.S., 596 F.3d 817 (Fed. Cir. Feb. 19, 2010), a timber buyer sued the United States because the Forest Service suspended 14 timber sales contracts pending its compliance with the Endangered Species Act (ESA).  The United States Court of Federal Claims, 50 Fed.Cl. 35, (Damich, J), granted buyer summary judgment, but the United States Court of Appeals largely reversed the decision.  As a factual matter, the 1993 listing of the Mexican spotted owl as an endangered species, and the associated implementation of the ESA and its regulations, eventually led to the suspension of Precision Pine's timber contracts to comply with the consultation process and to ensure survival of the species.  Legally, Precision Pine alleged breach of contract, including breaches of express warranties and implied duty of good faith and fair dealing, but the appellate court disagreed:

"The valuable benefit Precision Pine bargained for was the right to harvest timber in a certain place, at a certain time. Significantly, however, the contracts expressly qualified that benefit... For our purposes, the relevant qualification is in the provisions that provide for the situation which arose here - the listing of a new species and delays associated with reassessing Forest Service projects. Under the contract terms, Precision Pine 'agreed to interrupt or delay operations under this contract, in whole or in part' to prevent serious environmental degradation or to comply with a court order, such as the injunction...  similarly, the contract allowed the Forest Service to modify or cancel the contracts in order to comply with the ESA..."

***

Meanwhile, Greater Yellowstone Coalition v. Servheen, 672 F.Supp.2d 1105 (D. Mont. Sept. 21, 2009) is the case that triggered the recent FWS announcement regarding the re-listing of the grizzly bear.  See ESA blawg.  The ruling contains two noteworthy sections, in which the Court refused to defer to FWS judgment, taking a rigid view of the demands of the ESA, and the failures of FWS.  First, in discussing the Conservation Strategy, which included substantial monitoring protocols for bear habitat, the court held that the monitoring requirements and future plans were unenforceable and do not protect the grizzly bear population. ("Promises of future, speculative action are not existing regulatory mechanisms.")  This reasoning, however, seems suspect.  Not only does it dismissively reject conservation activities by state wildlife entities -- perhaps raising concerns under ESA  section 6 -- but it also creates an impossible-to-escape logical loop.  Evidently, a species cannot be deemed to recover, and thus delisted, unless rigidly mandatory conservation duties are left in place on the state... which, of course, the delisting of the species was intended to remove in the first place.  Second, the decision takes a very hard look at the FWS analysis, and the record, on the issue of whether climate change will impact whitebark pine, an important grizzly bear food source: "The agency has not articulated a rational connection between the best available science and its conclusion that bears will not be affected by declines in white-bark pine because they are omnivorous. While the Final Rule emphasizes that grizzly bears will be able to adapt to the decline of whitebark pines, the record contains scant evidence for this proposition...  The science relied on by the Service does not support its conclusion that declines in the availability of whitebark pine will not negatively affect grizzly bears.  In fact, much of the cited science directly contradicts the Service's conclusions. While the agency's discretion is broad in its area of expertise, the discretion is not unlimited. The record supports the Service's own statements that the extent of declines in whitebark pine and the grizzlies' response is 'uncertain.'  Where the agency's conclusions contradict the science, the conclusions are not reasonable and the Court need not defer to the agency's decision."  

Takings and the ESA: Casitas Municipal Water District v. United States (Fed. Cir.)

09/29/2008

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Casitas Municipal Water District v. United States, Case No. 2007-5153 (Fed. Cir. Sept. 25, 2008)

   SUMMARY: Casitas Municipal Water District (Casitas) appeals the judgment of the United States Court of Federal Claims granting summary judgment in favor of the government holding that there was no governmental breach of contract and no compensable taking under the Fifth Amendment… we affirm the district court’s grant of summary judgment in favor of the government with respect to Casitas’ breach of contract claim and reverse the district court’s grant of partial summary judgment in favor of the government with respect to a taking under the Fifth Amendment. We remand for further proceedings consistent with this opinion.

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Depending on the outcome of the Federal Court of Claim proceedings, the U.S. government may be compelled to compensate the Casitas Municipal Water District for the water "diverted" away from the Robles Diversion Dam fish ladder, a structure substantially modified in 2003 by Wood Rogers to benefit steelhead rainbow trout.  Photo from Wood Rogers Inc.com

   KEITHINKING: This decision could have significant implications for ESA implementation on the West Coast.  Although clearly dependent upon the specific terms of the water rights and contracts in place, the ruling suggests that a biological opinion that includes measures altering water use rights to benefit listed species can create a compensable taking, requiring the government to pay for the lost water rights.  In other words, for federal agencies, ESA implementation may soon become much more expensive.  See Ventura County Star news coverage, and excerpts below.

Federal Circuit wades into salmon wars, may consider merits of failure to consult on import enforcement

07/16/2008

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Salmon Spawning and Recovery Alliance v. U.S. Customs and Border Protection, No. 2007-1444, 2008 WL 2736031  (Federal Circuit, July 15, 2008)(Excerpts of judicial opinion below).

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Photo of a salmon "freshness" inspection at Miami International Airport, from the Interagency Working Group on Import Safety

SUMMARY: This case concerns the Endangered Species Act ("ESA") and the scope of the jurisdiction of the United States Court of International Trade. Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively "Salmon Spawning" or "plaintiffs") appeal a final judgment of the Court of International Trade dismissing their complaint against various federal agencies and officials (the "defendants") for lack of subject matter jurisdiction. Salmon Spawning & Recovery Alliance v. Basham, No. 06-00191 (Ct. Int'l Trade Mar. 6, 2007) (Salmon Spawning II). The complaint alleges that the defendants violated their duties under the ESA when they failed to enforce the ban on importing endangered and threatened salmon and steelhead into the United States and failed to consult with National Marine Fisheries Service regarding this lack of enforcement as required under section 7(a)(2) of the ESA.  We conclude that the Court of International Trade erred in dismissing the case for lack of standing, and we remand to the court to determine in the first instance whether plaintiffs' claim under section 7(a)(2) of the ESA falls within the exclusive jurisdiction of the Court of International Trade.

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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