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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.

ESA litigation in 2011: it could be a very big year.

01/24/2011

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In a lawsuit of nationwide scale, the Center for Biological Diversity sued the U.S. Environmental Protection Agency under the Endangered Species Act, alleging that EPA failed to consult with federal wildlife agencies regarding the impacts of hundreds of pesticides upon more than 200 endangered and threatened species. See Press Release.  CBD views widespread pesticide use as Silent Spring Revisited.  As the lawsuit states: "EPA must register and authorize pesticides before they can be used. Once in the environment, pesticides impact species through acute and chronic effects, and contamination of their habitats. Absent EPA’s registration and oversight of pesticides, they could not be used and would not be negatively impacting listed species. EPA’s failure to ensure that its actions regarding pesticides do not impact endangered species and their habitats harms Plaintiffs’ members’ interests in the species. If EPA engaged in consultation as required, the Service would detail how the pesticides are affecting listed species and their habitats and, if necessary, would suggest reasonable and prudent alternatives to protect the species. 16 U.S.C. § 1536(a)(3)."   Importantly, this lawsuit could trigger a settlement with EPA, FWS and NOAA, affecting, in turn, nationwide agricultural operations. See KFGO.  In fact, in litigation over pesticide consultations in the Pacific Northwest, CBD obtained relief requiring NOAA to review 37 regionally used pesticides and evaluate their effects upon salmonid species. See NOAA.

While CBD's lawsuit is just beginning, two other ESA cases may be about to reach a dramatic end, with petitions for certiorari pending before the U.S. Supreme Court.  First, Arizona Cattle Growers’ Ass’n v. Salazar, Docket: 10-454, asks (1) whether the Fish and Wildlife Service (FWS) was required to analyze and consider all of the economic impacts that result from designating a particular area as a "critical habitat" under section 4(b)(2) of the Endangered Species Act, including impacts that also may be related to the species being listed as "threatened" or "endangered"; and 2) whether it is lawful for a court to substitute its own rationale for the rationale provided by the FWS to affirm the agency's determination that a particular area, designated as a "critical habitat," is occupied by a threatened or endangered species. Relatedly, Home Builders Ass’n of Northern California v. United States Fish and Wildlife Service, Docket: 10-605, asks whether, under section 4 of the Endangered Species Act, the government must analyze all of the economic impacts of a “critical habitat” designation (regardless of whether the impacts are co-extensive with, or cumulative of, other causes), or instead only those impacts for which “critical habitat” designation is a “but for” cause. See SCOTUS blog, petition of the day.

Finally, it was the end of the road in Southwest Center for Biological Diversity v. Bartel, Case No. 06-56851, 2011 WL 148785 (9th Cir. Jan. 18, 2011), in which Intervenor-Appellants from the building industry sought to appeal the district court's injunction barring “pending and future development projects” that might affect seven species found in San Diego's “vernal pool habitat.”  The district court had invalidated parts of an Incidental Take Permit (“ITP”) granted to the City of San Diego in July 1997.  However, on April 20, 2010, the City relinquished portions of the ITP covering the vernal pool species, and one month later, the Service cancelled those portions of the ITP.  Rejecting the argument that intent to apply for a new ITP could keep the litigation alive, the 9th Circuit held that "Because the relevant portions of the ITP no longer exist, it is unclear how there remains a live case or controversy. The City, the Service, and Intervenors agree that the action is moot."

FWS delists Maguire daisy, proposes listing of spectaclecase and sheepnose mussel, considering downlisting of six California species, and reopening commenton critical habitat for tiger salamander and Tumbling Creek cavesnail.

01/24/2011

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76 Fed. Reg. 3029 (Wednesday, January 19, 2011) /Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R6–ES–2008–0001; 92220–1113–0000–C6 / RIN 1018–AU67
Endangered and Threatened Wildlife and Plants; Removal of Erigeron maguirei (Maguire Daisy) From the Federal List of Endangered and Threatened Plants; Availability of Final Post-Delisting Monitoring Plan
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service/USFWS), are removing the plant Erigeron maguirei (commonly referred to as Maguire daisy) from the List of Endangered and Threatened Plants. The best scientific and commercial data available indicate that this species has recovered and no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973, as amended (ESA). Our review of the status of this species shows that populations are stable, threats are addressed, and adequate regulatory mechanisms are in place so that the species is not currently, and is not likely to again become, an endangered species within the foreseeable future in all or a significant portion of its range. Finally, we announce the availability of the final post-delisting monitoring plan for Maguire daisy. DATES: This rule becomes effective on February 18, 2011.

EXCERPT RE: RECOVERY PLANS: Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods to minimize threats to listed species, establish goals for long-term conservation of listed species, and define criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to reclassify from endangered to threatened or to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

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Erigeron maguirei occurs primarily on sandstone domes on mesa tops and in cracks and crevices of domes and cliffs in the Navajo Sandstone formationFWS estimates a total population of 162,897 Erigeron maguirei individuals, and approximately 85 percent of the species’ range occurs on Federal lands with substantial protective measures in place.

EXCERPT RE: MAGUIRE DAISY RECOVERY: In fact, the 10 populations have more desirable biological attributes than the originally suggested 20 populations in the Recovery Plan. For example, the recovery goal of 20 populations was based on the assumption that the populations were small and widely scattered. The 10 current populations are well connected within 5 metapopulations, and these metapopulations are distributed throughout the range of the species. The habitat is contiguous between populations, thereby increasing the species’ robustness. Furthermore, the Recovery Plan called for 20 populations of 500 individuals. This suggests recovery at about 10,000 plants. Today, we know of 162,897 Erigeron maguirei individuals, far surpassing the implied numeric target in the Recovery Plan. In addition, the species’ population is stable (see Species Information). Therefore, the available data demonstrate that the intent of this recovery criterion has been met or exceeded.

READER COMMENT (David Martin): A decade ago when I was working for the  Fish and Wildlife Service in Vero Beach, I made an effort to apply a supervisor's similar reasoning to change the status of several listed plants from Florida's Lake Wales Ridge, thanks to large State purchases of habitat and new information from an extensive survey.  Didn't fly.  You had to meet recovery plan criteria more or less to the letter.  However, reclassifying Lake Wales Ridge plants would have been somewhat premature, because research has been rewarding.  Research on population biology and land management, more or less as prescribed by the recovery plan, proved valuable.

The Maguire daisy is one of a number of plants that have turned out to be far more abundant than had been previously believed--something that can happen even when careful surveys are made before listing.  Still, I marvel that "we know of 162,897 Erigeron maguirei".   With plants, it's often easier to count individuals rather than mess with a sampling scheme. But 162,897 seems kind of a lot to count with any precision.   There's at least one previous case of a plant being delisted after extensive new surveys, done in cooperation with private landowners. And the Maguire daisy isn't the first to be reclassified after turning out to be more abundant than expected.   Plants can be hard to find, sometimes hiding in plain sight.  (A classic case is the Okeechobee gourd on the St. Johns River, which wasn't seen from 1774 (William Bartram) to the 1980s, when it was rediscovered by Marc Minno.  This is a high-climbing vine with hanging gourds the size of  navel oranges.)

***

76 Fed. Reg. 3392 (Wednesday, January 19, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / ocket No. FWS–R3–ES–2010–0050; MO 92210–0–0008–B2 / RIN 1018–AV93
Endangered and Threatened Wildlife and Plants; Endangered Status for the Sheepnose and Spectaclecase Mussels
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list two freshwater mussels, the spectaclecase mussel (Cumberlandia monodonta) and sheepnose (Plethobasus cyphyus) as endangered under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act’s protections to these species throughout their ranges, including sheepnose in Alabama, Illinois, Indiana, Iowa, Kentucky, Minnesota, Mississippi, Missouri, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin, and spectaclecase in Alabama, Arkansas, Illinois, Indiana, Iowa, Kentucky, Kansas, Minnesota, Missouri, Nebraska, Ohio, Tennessee, Virginia, West Virginia, and Wisconsin. We determined that critical habitat for these species is prudent, but not determinable at this time. The Service seeks data and comments from the public on this proposed listing rule. DATES: We will consider comments and information we receive from all interested parties by March 21, 2011.

***

[76 Fed. Reg. 3069 (Wednesday, January 19, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R8–ES–2011–0005; 92220–1113–0000–C5
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist or Reclassify From Endangered to Threatened Six California Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition findings and initiation of status reviews.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to delist Oenothera californica (avita) subsp. eurekensis (Eureka Valley eveningprimrose) and Swallenia alexandrae (Eureka Valley dunegrass), and reclassify the tidewater goby (Eucyclogobius newberryi), Acmispon dendroideus (Lotus scoparius subsp.) var. traskiae (San Clemente Island broom), Malacothamnus clementinus (San Clemente Island bush-mallow), and Castilleja grisea (San Clemente Island Indian paintbrush) from endangered to threatened under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, with the publication of this notice, we are initiating status reviews of these taxa to determine if the respective actions of delisting and reclassifying are warranted. Section 4(c)(2)(A) of the Act also requires a status review of listed species at least once every 5 years. We are therefore electing to conduct these reviews simultaneously. To ensure that these status reviews are comprehensive, we are requesting scientific and commercial data and other information regarding these species and subspecies. Based on these status reviews, we will issue 12-month findings on the petition, which will address whether the petitioned actions are warranted under section 4(b)(3)(B) of the Act. DATES: To allow us adequate time to conduct this review, we request that we receive information on or before March 21, 2011.

***

76 Fed. Reg. 2863 (Tuesday, January 18, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R8–ES–2009–0044; MO 92210–0–0009 / RIN 1018–AW86
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period.

SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening of the comment period on our August 18, 2009, proposed designation of critical habitat for the Sonoma County Distinct Population Segment of the California tiger salamander (Ambystoma californiense) under the Endangered Species Act of 1973, as amended. We also announce revisions to the proposed critical habitat unit, as it was described in the proposed rule published in the Federal Register on August 18, 2009 (74 FR 41662), and announce the availability of the draft economic analysis for the revised proposed critical habitat designation and an amended required determinations section of the proposal. We are reopening the comment period for an additional 30 days to allow all interested parties an opportunity to comment simultaneously on the revised proposed critical habitat, the associated draft economic analysis, and the amended required determinations section. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule. DATES: We will consider public comments received on or before February 17, 2011.

***

76 Fed. Reg. 2076 (Wednesday, January 12, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R3–ES–2010–0042; MO 92210–0–0009–B4 / RIN 1018–AW90
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Tumbling Creek Cavesnail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on June 23, 2010, proposed designation of critical habitat for the Tumbling Creek cavesnail (Antrobia culveri) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the Tumbling Creek cavesnail and an amended required determinations section of the proposal. We are reopening the comment period for an additional 30 days to allow all interested parties an opportunity to comment on the items listed above. Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule.
DATES: We will consider public comments we receive on or before February 11, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

NOAA designates Critical Habitat for Threatened Lower Columbia River Coho Salmon and Puget Sound Steelhead

01/15/2011

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76 Fed. Reg. 1392 (Monday, January 10, 2011) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
50 CFR Part 226 / Docket No. 101220626–0626–01 / RIN 0648–XA083
Endangered and Threatened Species: Designation of Critical Habitat for Threatened Lower Columbia River Coho Salmon and Puget Sound Steelhead
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Advance Notice of Proposed Rulemaking; request for information.

SUMMARY: We, the National Marine Fisheries Service (NMFS), will prepare critical habitat designation proposals for lower Columbia River (LCR) coho salmon (Oncorhynchus kisutch) and Puget Sound steelhead (O. mykiss) currently listed as threatened species under the Endangered Species Act (ESA). The areas under consideration include watersheds in the lower Columbia River basin in southwest Washington and northwest Oregon, as well as watersheds in Puget Sound and the Strait of Juan de Fuca in Washington. This advance notice of proposed rulemaking (ANPR) identifies issues for consideration and evaluation and solicits comments regarding them as well as information about the areas and species under consideration. DATES: Comments and information regarding the designation process and areas being considered for designation as critical habitat may be sent to us (See ADDRESSES), no later than 5 p.m. Pacific Time on March 11, 2011.

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Pacific salmon and steelhead are anadromous fish, meaning adults migrate from the ocean to spawn in freshwater lakes and streams where their offspring hatch and rear prior to migrating back to the ocean to forage until maturity. The migration and spawning times vary considerably between and within species and populations. At spawning, adults pair to lay and fertilize thousands of eggs in freshwater gravel nests or ‘‘redds’’ excavated by females. Depending on lake/stream temperatures, eggs incubate for several weeks to months before hatching as ‘‘alevins’’ (a larval life stage dependent on food stored in a yolk sac). Following yolk sac absorption, alevins emerge from the gravel as young juveniles called ‘‘fry’’ and begin actively feeding. Depending on the species and location, juveniles may spend from a few hours to several years in freshwater areas before migrating to the ocean.  Image from FWS.

NOAA announces recovery plan for sperm whale, proposes Pacific eulachon critical habitat, extends comment period on Atlantic sturgeon critical habitat

01/05/2011

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75 Fed. Reg. 81584 (Tuesday, December 28, 2010) / Notices
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
RIN 0648–XA041
Endangered and Threatened Species; Recovery Plan for the Sperm Whale
AGENCY: National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
ACTION: Notice of Availability; recovery plan for the sperm whale.

SUMMARY: The National Marine Fisheries Service (NMFS) announces the adoption of an Endangered Species Act (ESA) Recovery Plan for the Sperm whale (Physeter macrocephalus). The Recovery Plan contains revisions and additions in consideration of public comments received on the proposed draft Recovery Plan for the sperm whale.  ADDRESSES: Additional information about the Recovery Plan may be obtained by writing to Monica DeAngelis, National Marine Fisheries Service, Southwest Regional Office, Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802 or send an electronic message to Monica.DeAngelis@noaa.gov. Electronic copies of the Recovery Plan and a summary of NMFS’ response to public comments on the Recovery Plan are available online at the NMFS Office of Protected Resources Web site: http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/spermwhale.htm

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The main threats to sperm whale populations include collisions with vessels, direct harvest, and possibly competition for resources, loss of prey base due to climate change, and disturbance from anthropogenic noise. An important component of this recovery program is to determine population structure of the species and population discreteness. This would be a first step in estimating population size, monitoring trends in abundance, and enabling an assessment of the species throughout its range. Because sperm whales move freely across international borders, it would be unreasonable to confine recovery efforts to U.S. waters, and this Recovery Plan stresses the importance of a multinational approach to management. Ideally, both research and conservation should be undertaken at oceanic rather than national levels.  Photo from marinebio.org

LINK: Sperm Whale Recovery Plan (Dec. 21, 2010)

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76 Fed. Reg. 515 (Wednesday, January 5, 2011) / Proposed Rules
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Part 226 / Docket No. 101027536–0540–02 / RIN 0648–BA38
Endangered and Threatened Species, Designation of Critical Habitat for Southern Distinct Population Segment of Eulachon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comment.

SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the southern Distinct Population Segment (DPS) of Pacific eulachon (Thaleichthys pacificus), which was recently listed as threatened under the Endangered Species Act (ESA). We have proposed 12 specific areas for designation as critical habitat within the states of California, Oregon, and Washington. The proposed areas are a combination of freshwater creeks and rivers and their associated estuaries which comprise approximately 470 km (292 mi) of habitat. Three particular areas are proposed for exclusion  after evaluating the impacts and benefits associated with tribal land ownership and management by Indian tribes, but no areas are proposed for exclusion based on economic impacts. We are soliciting comments from the public on all aspects of the proposal, including information on the economic,national security, and other relevant impacts of the proposed designation, as well as the benefits to the southern DPS of eulachon from designation. We will consider additional information received prior to making a final designation. DATES: Comments on this proposed rule must be received by close of business on March 7, 2011.

EXCERPT: The physical or biological features essential to the conservation of the southern DPS fall into three major categories reflecting key life history phases of eulachon: (1) Freshwater spawning and incubation sites with water flow, quality and temperature conditions and substrate supporting spawning and incubation. These features are essential to conservation because without them the species cannot successfully spawn and produce offspring. (2) Freshwater and estuarine migration corridors free of obstruction and with water flow, quality and temperature conditions supporting larval and adult mobility, and with abundant prey items supporting larval feeding after the yolk sac is depleted. These features are essential to conservation because they allow adult fish to swim upstream to reach spawning areas and they allow larval fish to proceed downstream and reach the ocean. (3) Nearshore and offshore marine foraging habitat with water quality and available prey, supporting juveniles and adult survival. Juveniles eat phytoplankton, copepod eggs, copepods and other small zooplanktons (including euphausiids; Barraclough, 1964), and adults eat euphausiids and copepods (Hart, 1973). These features are essential to conservation because they allow juvenile fish to survive, grow, and reach maturity, and they allow adult fish to survive and return to freshwater systems to spawn.

***

75 Fed.Reg. 82370 (Thursday, December 30, 2010) / Proposed Rules
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224 / RIN 0648–XJ00 and RIN 0648–XN50
Endangered and Threatened Wildlife and Plants; Proposed Listing Determinations for Five Distinct Population Segments of Atlantic Sturgeon; Extension of Public Comment Period
AGENCY: National Marine FisheriesService (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; extension of public comment period.

SUMMARY: NMFS hereby extends the comment period on the proposed listing of five distinct population segments (DPSs) of Atlantic sturgeon as endangered or threatened until February 3, 2011. The five DPSs were proposed for listing in two separate proposed listing determinations, published on October 6, 2010. DATES: Comments and information regarding the proposed rules published October 6, 2010 (75 FR 61872; 75 FR 61904) must be received by February 3, 2011.

FWS announces endangered status for 7 Brazilian birds, and publishes recovery plan for St. Andrews beach mouse

01/05/2011

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75 Fed.Reg. 81794 (Tuesday, December 28, 2010) / Rules and Regulations
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / FWS–R9–IA–2009–0028; 92210–1111–0000–B6 / RIN 1018–AV74
Endangered and Threatened Wildlife and Plants; Listing Seven Brazilian Bird Species as Endangered Throughout Their Range
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine endangered status for the following seven Brazilian bird species and subspecies (collectively referred to as ‘‘species’’ for purposes of this rule) under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.): Black-hooded antwren (Formicivora erythronotos), Brazilian merganser (Mergus octosetaceus), cherry-throated tanager (Nemosia rourei), fringe-backed fire-eye (Pyriglena atra), Kaempfer’s tody-tyrant (Hemitriccus kaempferi), Margaretta’s hermit hummingbird (Phaethornis malaris margarettae), and southeastern rufous-vented ground-cuckoo (Neomorphus geoffroyi dulcis). DATES: This rule becomes effective January 27, 2011.

EXCERPT: We are addressing the seven Brazilian bird species identified above under a single rule for three reasons. First, all of these species are found in the Atlantic Forest Biome and Cerrado Biome; thus, it is reasonable to address them together within a regional conservation perspective. Biomes are large geographic areas such as forests and deserts which share similar climate and geography and consist of similar naturally occurring vegetation and fauna. Second, each of these seven species is subject to similar threats of comparable magnitude. The major threat to these species is the loss and degradation of habitat due to deforestation and other ongoing development practices affecting southeastern Brazil, as well as associated threats due to severely restricted distributions of these species and small, declining populations (such as potential loss of genetic viability). Third, combining species that face similar threats within the same general geographic area into one rule allows us to maximize our limited staff resources, thus increasing our ability to complete the listing process for warranted-butprecluded species.

***

75 Fed. Reg. 81637 (Tuesday, December 28, 2010) / Notices
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
FWS–R4–ES–2010–N247; 40120–1113–0000–C2
Endangered and Threatened Wildlife and Plants; Notice of Availability of the St. Andrew Beach Mouse Recovery Plan
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of document availability.
SUMMARY: We, the Fish and Wildlife Service, announce the availability of the recovery plan for the St. Andrew beach mouse (Peromyscus polionotus peninsularis). The recovery plan includes specific recovery objectives and criteria to be met in order to reclassify this species to threatened status and delist it under the Endangered Species Act of 1973, as amended (Act).

EXCERPT: Threats to the St. Andrew beach mouse include habitat loss/alteration from land development and associated human use, hurricanes and other tropical storm events, nonnative predators, and recreational activities associated with development and tourism that weaken and encroach on the dune ecosystem. Availability of suitable habitat may be a limiting factor during periods of population expansion or following catastrophic weather events. Due to the species’ limited range and fragmentation of its habitat, these threats combined continue to present a threat to the species’ existence.

ESA caselaw from the District Courts: panthers, whales, and ribbon seals.

01/02/2011

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CONSERVANCY OF SOUTHWEST FLORIDA v. UNITED STATES FISH AND WILDLIFE SERVICE, No. 2:10-cv-106-FtM-SPC, 2010 WL 5140729 (M.D. Fla. Nov. 12, 2010)(Report and Recommendation by Sheri Polster Chappell, United States Magistrate Judge.

BACKGROUND: Plaintiffs have filed this lawsuit under the Endangered Species Act (ESA), 16 U.S.C. 1531, et seq. and the Administrative Procedures Act (APA), 5 U.S.C. 702, et seq., challenging the Defendant Fish and Wildlife Service's (Service) denials of Plaintiffs' petitions to designate critical habitat for the Florida Panther (Puma concolor coryi). The Defendants move to dismiss, arguing that the decision whether to designate critical habitat for the Florida Panther is committed to agency discretion by law and therefore this Court lacks subject-matter jurisdiction to review the denial of Plaintiffs' petitions. Defendants assert that dismissal is appropriate under Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted...  Plaintiffs allege that the Florida Panther is teetering on the brink of extinction and critical habitat is crucial to their survival as a species. Thus, in January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA, Service regulations, and the APA, asking the agency to establish critical habitat for the Florida Panther...  On February 11, 2010, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, in their entirety in three separate letters, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it is in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” See Def. Ex. 1 at 3. The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations. Id.

PantherSFWMDfotoFlexer.jpg
The Florida Panther has been listed as an endangered species since 1967. 32 Fed.Reg. 4,001 (Mar. 11, 1967). The United States Fish and Wildlife Service has never designated critical habitat for the Florida Panther, because the 1973 Endangered Species Act did not require that critical habitat be designated at the time of listing of the species on the endangered list. The current form of the Act requires the Secretary of the Interior to promulgate regulations listing those species of plants or animals that are “threatened” or “endangered” under specific criteria, and to designate their critical habitat at the time of listing. 16 U.S.C. 1533. This requirement that the listing of the species and the designating of critical habitat occur concurrently was passed in the 1978 amendments to the ESA.  Through this litigation, various environmental groups seek to compel the designation of critical habitat for the species. Photo from South Florida Water Management Districttaken at Stormwater Treatment Area 5.

EXCERPT: Defendants argue that the Service's decision not to designate critical habitat for the Panther is discretionary and therefore unreviewable under the APA because Congress did not provide any standards as to when that discretion should be exercised. Def. Br. at 15. In other words, the ESA sets forth no specific criteria that the Service must consider in deciding whether to exercise its authority to designate critical habitat for pre-1978 species because the statute lacks standards governing the Service's discretionary decisions. Plaintiffs assert that there is law to apply and point to the APA's arbitrary and capricious standard (which Plaintiffs argue applies to all agency actions); the APA's standard on petitions for rulemaking, 5 U.S.C. § 553; and the ESA regulations that provide numerous, specific standards that the Service must follow once it receives a petition to designate critical habitat...


petitions to designate critical habitat. The Court disagress. Just because an agency has the authority granted by Congress to make a final determination as to whether critical habitat should be designated, does not mean that the agency has unlimited, unreviewable discretion to not follow the rules. “It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Bennett, 520 U.S. at 172. In Bennett, which involved the designation of critical habitat under the ESA, but did not involve pre-1978 species, stated that “the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that in arriving at his decision, he ‘take into consideration the economic impact and any other relevant impact,’ and use ‘the best scientific data available.’ “ Id. Therefore, since the APA's review provisions apply, this Court has subject matter jurisdiction to conduct a record review of the agency's actions and it is respectfully recommended that Defendants' Motions to Dismiss be denied.

KEITHINKING: Sorry, no comment. Too close to home...

***

STRAHAN v. DIODATI, Civil Action No. 05-10140-NMG, 2010 WL 5174512 (D. Mass. Dec. 16, 2010).

Pro se plaintiff Richard Max Strahan (“Strahan”) is a self-proclaimed “citizen prosecutor” who has filed numerous lawsuits on behalf of whales that become entangled in fishing gear pursuant to the “citizen suit” provision of the Endangered Species Act (“the ESA”), 16 U.S.C. 1540(g)(1). The whales and those who are concerned for their safety should be grateful for his vigilance... Strahan brought the instant action against officers of the three agencies collectively responsible for licensing fishing gear deployed in Massachusetts coastal waters: Paul Diodati, in his official capacity as Director of the Massachusetts Division of Marine Fisheries; Ian Bowles, in his official capacity as Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs; and Mary Griffin, in her official capacity as Commissioner of the Massachusetts Department of Fish and Game (collectively “the defendants”).  Strahan seeks a declaratory judgment that the defendants have violated Secs. 9(a) and (g) of the ESA, 16 U.S.C. § 1538(a) and (g). Strahan also seeks a permanent injunction a) to enjoin the defendants from continuing to license certain commercial fishing equipment that allegedly entangles whales in violation of the ESA and b) to require them to fund the development of “whale-safe” gear and efforts to increase the size of the whale population.

EXCERPT: In support of his June 2010 motion to dismiss without prejudice, Strahan argues that: he is unable to prosecute his claims meaningfully because he is indigent and no longer lives in the Boston area and the Court's rulings have “banned” him from further discovery, thereby precluding him from “successfully” prosecuting the defendants.  The Court will deny the plaintiff's motion to dismiss without prejudice for several reasons: (1) Plaintiff waited until the case was more than five years old (and scheduled for trial two months later) to seek dismissal, (2) Strahan argues for dismissal based on the Court's legal rulings regarding the scope of discov-ery and his dissatisfaction with the factual record subsequently developed, (3) Defendants have already spent a prodigious amount of time on this litigation, including in discovery and (4) the Court has already conducted hearings, re-viewed numerous documents, imposed a reporting requirement during the stay, decided motions and set a date for trial.  The plaintiff's stated reasons for seeking dismissal are insufficient, as “voluntary dismissal should be refused when a plaintiff seeks to circumvent an expected adverse result.”  Furthermore, to grant the plaintiff's motion at this stage in the case would cause the defendants to suffer legal prejudice. Thus, plaintiff's motion will be denied.

KEITHINKING: A cautionary note for the citizen prosecutor: Courts "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." ESA, 16 U.S.C. 1540(g).

***

CENTER FOR BIOLOGICAL DIVERSITY v. LUBCHENCO, No. C-09-04087 EDL, 2010 WL 5288188 (N.D. Cal. Dec. 21, 2010).

In this civil action for declaratory and injunctive relief, Plaintiffs Center for Biological Diversity and Greenpeace (collectively, “Plaintiffs”) allege that Defendants Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration (“NOAA”), Gary Locke, the United States Secretary of Commerce, and the National Marine Fisheries Service (“NMFS”) violated the Endangered Species Act (“ESA”), 16 U.S.C. 1531, et. seq., in failing to list the ribbon seal as threatened or endangered.  Endangered and Threatened Wildlife; Notice of 12-Month Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species, 73 Fed.Reg. 79822. The parties filed cross-motions for summary judgment, which were fully briefed. In addition, the State of Alaska filed two amicus briefs in support of Defendants. The Court held a hearing on September 2, 2010. For the reasons stated at the hearing and in this Order, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.
 
ribbonsealNOAA.jpg
The ribbon seal primarily inhabits Russia's Sea of Okhotsk and the Bering and Chukchi Seas off of western Alaska.  The species is strongly associated with the sea ice during its whelping, mating and molting periods from mid-March through June. Sea ice is essential to ribbon seal survival. However, the sea ice habitat has been shrinking. For example, there is evidence that for the pe-riod from 1979 through 2006, the sea ice extent in the Okhotsk Sea declined by 9.3% per decade.  Photo from NOAA

EXCERPT: Plaintiffs argue that the twelve-month finding was arbitrary and capricious because: (1) NMFS failed to engage in a rational analysis of whether any distinct population segment (“DPS”) of the ribbon seal may warrant listing or whether the species is threatened or endangered in a “significant portion of its range;” and (2) NMFS relied on an irrational time frame for the “foreseeable future.” Plaintiffs also argue that NMFS erred by not utilizing the best available science in making its twelve-month finding.  On balance, Plaintiffs have failed to show that Defendants' decision on this issue was arbitrary or capricious.

KEITHINKING: In a detailed and fact specific-opinion, the Court deferred to NOAA's analysis on every issue. Of note was the Court's support for Alaska's position, and the rejection of the "err in favor of the species" argument made by the plaintiffs: "However, as the Court in Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 947 (D.Or.2007) observed: 'Although an agency must still use the best available science to make that listing determination, Conner v. Burford, 848 F.2d 1441 (9th Cir.1988) cannot be read to require an agency to give the benefit of the doubt to the species under Section 4 if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. See also Alaska Amicus brief Ex. A (EPIC v. NMFS, C-02-5401 EDL at 15-16 (Mar. 2, 2004))."

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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