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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.

Squirrels bite... Judge Sullivan in D.D.C. rejects FWS rule delisting the Virginia northern flying squirrel, giving teeth to previously stated delisting criteria from 1990 recovery plan

03/28/2011

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FRIENDS OF BLACKWATER v. SALAZAR, Civ. Action No. 09-2122 (EGS). --- F.Supp.2d ----, 2011 WL 1098964 (D.D.C., March 25, 2011). Link to opinion here.

SUMMARY. In 1985, the Virginia Northern Flying Squirrel, Glaucomys sabrinus fuscus, (the “Squirrel”) was listed as an endangered species under the Endangered Species Act (“ESA”) by the U.S. Fish and Wildlife Service (“FWS”). Over two decades later, in 2008, the FWS delisted the Squirrel… 73 Fed.Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this suit challenging the delisting…  The Court concludes that the agency violated Section 4(f) of the ESA, 16 U.S.C. 1533(f), when it effectively revised its recovery plan for the Squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.

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The Virginia Northern Flying Squirrel, also known as the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus ) is a “small, nocturnal, gliding mammal” with “distinctive patagia (folds of skin between the wrists and ankles) ... supported by slender cartilages extending from the wrist bones; these plus the broad tail create a large gliding surface area and are the structural basis for the squirrel's characteristic gliding locomotion. Adults are dorsally gray with a brownish, tan, or reddish wash, and grayish white or buffy white ventrally.” Image from Friends of Blackwater and SaveOurSquirrel.org

EXCERPT RE: RECOVERY PLAN of 1990: in accordance with the requirements of Sec. 1533(f), the FWS issued an Appalachian Northern Flying Squirrels Recovery Plan (“Recovery Plan”). Ultimately, the objective of the Recovery Plan was to set forth a plan that, if accomplished, would “remove the Squirrel from the list of endangered and threatened species.” the agency first outlined three criteria necessary for downlisting the species from endangered to threatened status, stating that downlisting from endangered to threatened status will be possible when it can be documented that:
  • squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies,
  • sufficient ecological data and timber management data have been accumulated to assure future protection and management, and
  • Geographic Recovery Areas are managed in perpetuity to ensure: (a) sufficient habitat for population maintenance/expansion and (b) habitat corridors, where appropriate elevations exist, to permit migration…

EXCERPT RE: DELISTING RULE OF 2008: After the requisite notice and comment period, the FWS promulgated the Delisting Rule on August 26, 2008. 73 Fed.Reg. 50,226.  In particular, the decision to delist the Squirrel in 2008 appears to have been prompted principally by a conclusion that the Squirrel was not as rare as was previously believed. As the agency explained in the Delisting Rule: "At the time of listing, the Squirrel was thought to be an extremely rare and declining taxon that had disappeared from most of its historical range. We now know that occupancy of available habitat has increased and is much more widespread and well connected than formerly thought, and the geographic extent of the Squirrel's range approximates historical range boundaries....  Additionally, we have learned that the Squirrel has adapted to changes in the spruce ecosystem over the past hundred years, and can successfully exploit the existing habitat conditions throughout the landscape…  Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan."

EXCERPT OF CORE ANALYSIS: Congress did not stop with a simple requirement to develop and implement a recovery plan. The ESA requires that each recovery plan shall, among other things, “to the maximum extent practicable ... incorporate in each plan ... objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list” 16 U.S.C. 1533(f)(1)(B). In the event the agency finds it necessary to revise a recovery plan, Congress expressly provides a vehicle for doing so: the statute states that “the Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan .” 16 U.S.C. 1533(f)(4)(emphasis added)...  In light of the above statutory language and accompanying legislative history, the Court concludes that the agency's decision to set aside two of the criteria in its Recovery Plan constituted a revision to the Recovery Plan within the meaning of the ESA. Accordingly, the agency was required to employ notice-and-comment rulemaking.

The court is not persuaded that the agency's decision to meet only the “intent” of its Recovery Plan criteria for the Squirrel complied with the ESA. The statute unambiguously requires that criteria must be “objective” and “measurable.” 16 U.S.C. 1533(f)(1)(B)(ii). Here, no one contests that the original criteria were objective and measurable when they were adopted as part of the Recovery Plan. The first criterion, for example, called for the agency to down-list or delist only when it could be documented that “squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies.” AR at 15092. Instead of applying this Recovery Plan criterion, however, the agency now takes the position that the intent of this criterion can be met with persistence data rather than population data because, according to the agency, the “intent of this recovery criterion was to document that populations are robust.” AR at 37. Using “robust population” as a criterion does not satisfy the statutory requirement that the recovery plan criteria be “measurable” and “objective” ...  At the very least, the alteration of the first and third criteria in this manner is a revision to the recovery plan that ought to have been subjected to public notice and comment, as required by Sec. 1533(f)(4).

EXCERPT RE: REMEDY: FWS failed to comply with unambiguous provisions of the ESA, and the Court is not inclined to speculate what the consequence of a properly revised recovery plan will be on the status of this species. Furthermore, as this Court previously held in Humane Society v. Kempthorne 579 F.Supp.2d 7, 21 (D.D.C.2008) “the ESA's preference for protecting endangered species counsels strongly in favor of vacating the Delisting Rule while FWS revisits its statutory interpretation.” Id. (citing NRDC v. U.S. Dep't of the Interior, 275 F.Supp.2d 1136, 1145 (C.D.Cal.2002)). The Court therefore will vacate the Delisting Rule and remand it to the agency for further proceedings.

KEITHINKING: In other delisting decisions, FWS has adopted similar reasoning, emphasizing the non-regulatory nature of a recovery plan and rejecting some of the objective criteria.  See, e.g. Maguire Daisy discussion by ESA blawg. This decision threatens that decision (and others) and suggests a return to previous days when, as one ESA blawg reader explained, "You had to meet recovery plan criteria more or less to the letter."  

9th Circuit says ESA is constitutional... but now what?

03/28/2011

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STEWART & JASPER ORCHARDS v. SALAZAR, No. 10-15192 (9th Cir. Mar. 25, 2011)

SUMMARY: In this appeal, we consider whether application of sections 7 and 9 of the Endangered Species Act to the California delta smelt violates the Commerce Clause in the United States Constitution. We conclude that it does not, and we affirm the judgment of the district court.

FACTUAL BACKGROUND: The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. Though once inhabiting California’s San Francisco Bay/Sacramento-San Joaquin Delta Estuary, its range has diminished. The delta smelt presently has no commercial value, but it was commercially harvested as bait in the past. The United States Fish and Wildlife Service (“Service”) listed the delta smelt as a threatened species in 1993 under the Endangered Species Act...  In 2008, the Service, acting under ESA Sec. 7, 16 U.S.C. 1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation (“Bureau”). The Biological Opinion concerned theBureau’s and the California Department of Water Resource’s operation of the Central Valley Project and the State Water Project, two of the world’s largest water diversion projects. The Biological Opinion concluded that “the coordinated operations of he water projects as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt habitat.” The Biological Opinion included a “Reasonable and Prudent Alternative,” as well as an “Incidental Take Statement.” The Reasonable and Prudent Alternative consisted of various components designed to reduce entrainment and other “taking” of smelt during critical times of the year by controlling water flows to and in the delta...  

ISSUE: Stewart & Jasper Orchards; Arroyo Farms, LLC; and King Pistachio Grove (collectively “the Growers”) sued the Service, claiming that their almond, pistachio, and walnut orchards “experienced substantially reduced water deliveries as a result of the Service’s decision to act on behalf of the delta smelt.” Among other claims, the Growers alleged that—as applied to the delta smelt—the Service’s application of ESA § 7 and power to enforce the “no-take provision” in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since “the delta smelt is a purely intrastate species and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to the operation of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority under the Commerce Clause.”

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Image from biggovernment.com an

STANDING EXCERPTS: The Growers have Article III standing to challenge the no take provision in ESA § 9 because the Service’s coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers. See Bennett v. Spear, 520 U.S. 154, 169 (1997)...  If the no-take provision in ESA § 9 is invalidated, the Growers’ injury will “likely” be redressed because the Bureau could restore water flows without worrying about whether the flows would result in a taking. See Bennett, 520 U.S. at 171. The Service conceded this point in the lower court...

EXCERPTS: RE COMMERCE: Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce. Pursuant to Gonzales v. Raich, 545 U.S. 1, 17 (2005)... when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to “commerce or any sort of economic enterprise.” See Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 610.

We and other courts have discussed at length why the protection of threatened or endangered species implicates economic concerns. To summarize:
  • A species might become threatened or endangered precisely because of “overutilization for commercial . . . purposes.” 16 U.S.C. 1533(a)(1)(B)
  • The ESA protects endangered or threatened species, in part, by prohibiting all interstate and foreign commerce in those species.
  • The ESA protects the future and unanticipated interstate-commerce value of species.
  • Regeneration of a threatened or endangered species might allow future commercial utilization of the species.
  • Interstate travelers stimulate interstate commerce through recreational observation and scientific study of endangered or threatened species.
  • The genetic diversity provided by endangered or threatened species improves agriculture and aquaculture, which clearly affect interstate commerce.
This is not an exhaustive summary, but it sufficiently illustrates that the ESA, including sections 7 and 9, “bears a substantial relation to commerce.” See Raich, 545 U.S. at 17. Thus, even though the ESA might “ensnare… some purely intrastate activity, . . . we refuse to excise individual components of that larger scheme.”

KEITHINKING: OK, so the Endangered Species Act is constitutional. Again. Why are we still debating the issue?  Isn’t commerce self-evident when ecotourists worldwide flock to places specifically to see the rare species?  There should be no need to worry about the moral, medicinal or ecological justifications for the ESA.  And, for the record, the ESA has now been upheld by the D.C., 4th, 5th, 9th, and 11th Circuits, with a cert. denied by the U.S. Supreme Court too. Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); GDFRealty Invest. Ltd. v. Norton (GDF), 326 F.3d 622 (5th Cir. 2003), writ of certiorari denied, GDF Realty Invs., Ltd. v. Norton, 125 S. Ct. 2898 (2005); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v. Babbitt (NAHB), 130 F.3d 1041 (D.C. Cir. 1997). See also, Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978).

Then again, so what?  The ESA may be constitutional, but it is also controversial.  The House of Representatives in Montana recently voted to nullify the law.  So, just imagine for a moment, the following scenario: frustrated elected officials from a state upset with the rigidity of the ESA finally pass a law (oaths of office notwithstanding) that rejects the notion of federal supremacy, and that refuses to implement an agency decision based on that Congressional Act.  When the time comes, will we really send in the troops to demand strict ESA compliance, or will Congress blink and revise the statutory scheme?  Unlike the state vs. federal tensions during the rights era, these federalism conflicts over the ESA will not occur in Mississippi or Alabama, and they will not present simplistic black vs. white disputes over racism and fundamental constitutional civil rights.  Instead, the ESA battles will play out in states like California, Florida, and Colorado, and they will involve complex disputes over broad interpretations of commerce, and fish vs. people, wolves vs. ranchers, smelt vs. almonds, and green Americans vs. other Americans.

For years now, on these pages, ESA blawg has argued that successful implementation of the ESA requires great caution, compromise and creativity.  In the ongoing struggles over the ESA, and the many lawsuits juxtaposing needs of people with protection of wildlife, extreme viewpoints will lead to counterproductive outcomes.  While the right-leaning political thinkers seek to wholly eliminate the ESA, and perhaps many other environmental laws, through yet another as-applied challenge to its constitutionality, the uncompromising left-leaning thinkers risk losing the very law for which they fight.  In the end, everyone loses sight of the fundamental purpose of the ESA: to protect species -- including humans -- and the ecosystems upon which we all depend.

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Image from BuzzAboutFood.com

ESA litigation increasing not just in abundance, but also in procedural complexity, as demonstrated by recent court decision related to flood insurance

03/27/2011

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WILDEARTH GUARDIANS v. UNITED STATES FEDERAL EMERGENCY MANAGEMENT AGENCY, No. CV 10-863-PHX-MHM,.2011 WL 905656 (D.Ariz., March 15, 2011).
Mary H. Murguia, District Judge.

BACKGROUND: Pursuant to the National Flood Insurance Act of 1968 (“NFIA”), 42 U.S.C. §§ 4001-4129, Defendant Federal Emergency Management Agency (“FEMA”) is authorized to establish and carry out the National Flood Insurance Program (“NFIP”). 42. U.S.C. §§ 4001(a), 4011, 4128. In its First Amended Complaint, Plaintiff Wild Earth Guardians (“WEG”) alleges that Defendant's administration and implementation of the NFIP in Arizona violates the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. 4321 et seq., and two Executive Orders; 11988 and 11990.  Plaintiff Wildearth Guardians' filed a Motion for Leave to Supplement “Purported” Administrative Record.

EXCERPTS: Defendant's arguments in opposition to Plaintiff's motion... have been mooted by the Ninth Circuit's recent decision in Western Watersheds Project v. Kraayenbrink, --- F.3d 2011 ----, 2011 WL 149363 (9th Cir. January 19, 2011). The Kraayenbrink Court stated unequivocally that the scope of review for ESA citizen-suit claims is not provided for by the APA and as a result parties may submit and the court may consider evidence outside the administrative record:                                

As we explained in Washington Toxics Coalition, the APA applies only where there is “no other adequate remedy in a court,” 5 U.S.C. § 704, and -- because the ESA provides a citizen suit remedy -- the APA does not apply in such actions. 413 F.3d at 1034. Therefore, under Washington Toxics Coalition we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim.
 632 F.3d 472, 2011 WL 149363, *22 (citing Washington Toxics Coal. v. EPA, 413 F.3d 1024,1030 (9th Cir.2005). Plaintiff has brought all four of its ESA claims under the Act's citizen-suit provision. These claims therefore -- even those which Defendant's attempt to paint as challenges to final agency action -- are not governed by the APA and its record-review rule.

The Court notes that the Kraayenbrink decision did not affect Ninth Circuit precedent with respect to the standard of review in ESA citizen suit cases, which remains arbitrary and capricious. --- F.3d 2011 ----, 2011 WL 149363. *1 (“Irrespective of whether an ESA claim is brought undr the APA or the citizen-suit provision, the APA's “arbitrary and capricious” standard applies.” (citing Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir.2007)).

The Court must now determine whether Plaintiff should be permitted to do so. This is a decision that lies within the sound discretion of the trial judge. San Francisco Baykeeper, 297 F.3d at 886. Although no specific standard has been articulated, the applicable case law suggests that a party should be permitted to supplement the record with evidence that is relevant to the question of whether relief should be granted. See Friends of the Clearwater, 222 F.3d at 560

KEITHINKING: Is Pandora's box open?  If the 9th Circuit approach to ESA litigation in Kraayenbrink becomes the national standard, then a huge procedural transformation is underway.  At a minimum, ESA cases -- once adjudicated within the confines of an administrative record prepared by the federal agencies -- will now involve large amounts of "relevant" material created by the plaintiffs and intervenors in an effort to challenge the deference otherwise accorded to the federal agencies.  But taken to logical end, could discovery be next?  

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Litigation over this issue traces back to 1984, when the Federal Emergency Management Agency (FEMA) refused to comply with a consultation request from the U.S. Fish and Wildlife Service (FWS) regarding the Florida Key deer and other listed species in the Florida Keys.  In 2008, the Eleventh Circuit Court of Appeals upheld a district court ruling requiring FEMA  to comply with the Endangered Species Act (ESA) in its administration of the National Flood Insurance Program (NFIP) in the Florida Keys. See, Fla. Key Deer v. Paulison, 2008 U.S. App. LEXIS 6850 (11th Cir. Apr. 1, 2008). Later that year, the National Marine Fisheries Service (NMFS) issued a Biological Opinion that determined that implementing the National Flood Insurance Program causes jeopardy to several species of Puget Sound Salmon and Orca Whales as well as adverse modification to their habitat.  In the Biological Opinion NMFS provided a Reasonable and Prudent Alternative to modify the implementation of the NFIP in a manner that would remove the jeopardy situation.  With the assistance of a focus group representative of Puget Sound communities, including a tribal community, NMFS, and the Washington Department of Ecology, FEMA produced a model ordinance containing rules to protect human development from floods while minimizing the impact of new construction and redevelopment on aquatic and riparian habitat.  The ordinance is one of several options available to local communities to demonstrate ESA compliance, and can be adopted whole cloth, or in segments to complement existing regulations. Image from Washaway Beach on the Washington State coast from Renton Community Update.

ESA in the news: big ideas, big controversies...

03/26/2011

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 A recent issue of YES! Magazine features provocative ideas about our animal-human relationships -- omnivore vs. vegan, the emotional lives of animals, legal rights for nature -- and asks whether saving endangered species can ultimately save human lives?  But government leaders obviously have their doubts.  In a matter of intense local interest, U.S. Representative Joe Baca (D-San Bernardino) proposed a bill to require the Fish and Wildlife Service to remove the Delhi Sands flower-loving flies (and any other endangered species for which the service doesn't have an accurate count) from the list of endangered species if the FWS can't show the fly population has increased since being put on the endangered species list. SeeRedlands Daily Facts.  But the cumulative sum of similar battles, all over the nation, over individual species led the Obama Administration to propose their own approach to escaping the rigors of the ESA.  Under a plan discussed in a House Appropriations subcommittee hearing, Congress may cap funding for the processing of new Endangered Species Act petitions.  Lack of funding could be a formidable defense that would yield more time for juggling its caseload, FWS maintains. See New York Times.  While the government has been increasing its use of "warranted but precluded" decisions on listing petitions, even those decisions produce litigation over whether the  Service properly set its own priorities.  See TheUnion.com


FWS revises western snowy plover habitat, pondering Chiricahua Leopard Frog critical habitat, withdraws Flat-Tailed Horned Lizard rule, and not listing Berry Cave Salamander

03/26/2011

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76 Fed. Reg. 16046 (Tuesday, March 22, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Pacific Coast Population of the Western Snowy Plover
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise the designated critical habitat for the Pacific Coast population of the Western Snowy Plover (Pacific Coast WSP) (Charadrius alexandrines nivosus) under the Endangered Species Act of 1973, as amended (Act). The areas identified in this proposed rule constitute a revision of the areas designated as critical habitat for the Pacific Coast WSP, published in the Federal Register on September 29, 2005. In the final rule, we designated a total of 12,145 acres (ac) (4,915 hectares (ha)) of critical habitat range-wide in 32 units in Washington, Oregon, and California. We are now proposing to revise the existing critical habitat to a total of 68 units totaling approximately 28,261 ac (11,436 ha). The area breakdown by State is as follows: Washington: 6,265 ac (2,497 ha) in 4 units; Oregon: 5,219 ac (2,112 ha) in 13 units; and California: 16,777 ac (6,789 ha) in 51 units.

76 Fed. Reg. 15919 (Tuesday, March 22, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Berry Cave Salamander as Endangered
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Berry Cave salamander (Gyrinophilus gulolineatus) as endangered under the Endangered Species Act of 1973, as amended (Act). After review of all available scientific and commercial information, we find that listing the Berry Cave salamander is warranted. Currently, however, listing is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12-month petition finding, we will add the Berry Cave salamander to our candidate species list. We will develop a proposed rule to list the Berry Cave salamander as our priorities allow. We will make any determination on critical habitat during development of the proposed listing rule. During any interim period, we will address the status of the candidate taxon through our annual Candidate Notice of Review (CNOR).

76 Fed. Reg. 14126 (Tuesday, March 15, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Listing and Designation of Critical Habitat for the Chiricahua Leopard Frog
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Chiricahua leopard frog (Lithobates chiricahuensis) under the Endangered Species Act of 1973, as amended. In total, we are proposing to designate approximately 11,136 acres (4,510 hectares) as critical habitat for the Chiricahua leopard frog. The proposed critical habitat is located in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New Mexico. In addition, because of a taxonomic revision of the Chiricahua leopard frog, we are reassessing the status of and threats to the currently described species Lithobates chiricahuensis and proposing the listing as threatened of the currently described species.

76 Fed. Reg. 14210 (Tuesday, March 15, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule To List the Flat-Tailed Horned Lizard as Threatened
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine that the listing of the flat-tailed horned lizard (Phrynosoma mcallii) as a threatened species under the Endangered Species Act of 1973, as amended (Act), is not warranted, and we therefore withdraw our November 29, 1993, proposed rule to list it under the Act. We made this determination in this withdrawal because threats to the species as identified in the 1993 proposed rule are not as significant as earlier believed, and available data do not indicate that the threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are likely to endanger the species in the foreseeable future throughout all or a significant portion of its range.

NOAA denies listing of Caribbean electric ray, still pondering action on loggerhead sea turtles, bearded seals, and ringed seals

03/26/2011

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76 Fed. Reg. 15947 (Tuesday, March 22, 2011) / Notices 15947
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to List the Caribbean Electric Ray as Threatened or Endangered Under the Endangered Species Act
SUMMARY: We (NMFS) announce a 90-day finding on a petition to list the Caribbean electric ray (Narcine bancroftii) as threatened or endangered under the ESA. We find that the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted.

76 Fed. Reg. 15932 (Tuesday, March 22, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
Endangered and Threatened Species; Proposed Listing of Nine Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened
SUMMARY: We (NMFS and USFWS; also collectively referred to as the Services) are extending the date by which a final determination will be made regarding the March 16, 2010, proposed rule to list nine Distinct Population Segments (DPS) of loggerhead sea turtles, Caretta caretta, as endangered or threatened under the Endangered Species Act of 1973, as amended (ESA). We are taking this action because substantial disagreement exists regarding the interpretation of the existing data on status and trends and its relevance to the assessment of risk of extinction to the Northwest Atlantic Ocean DPS of the loggerhead turtle. Additionally, considerable disagreement exists regarding the magnitude and immediacy of the fisheries bycatch threat and measures to reduce this threat to the Northwest Atlantic Ocean DPS of the loggerhead turtle. We are soliciting new information or analyses that will help clarify these issues. Comments previously submitted need not be resubmitted as they already have been incorporated into the public record and will be fully considered in the final rule. The Services believe that allowing an additional 6 months to evaluate and assess the best scientific and commercial data available would better inform our final determination on the listing status of the nine proposed DPSs of the loggerhead turtle.

76 Fed. Reg. 14883 (Friday, March 18, 2011) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
Endangered and Threatened Species; Proposed Threatened Status for Distinct Population Segments of the Bearded Seal
SUMMARY: On December 10, 2010, we, NMFS, published a proposed rule to list the Beringia and Okhotsk Distinct Population Segments (DPSs) of the bearded seal (Erignathus barbatus) as threatened under the Endangered Species Act of 1973, as amended (ESA). As part of that proposal, we announced a public comment period to end on February 8, 2011, and then extended the comment period to March 25, 2011. NMFS has received requests for public hearings on this issue. In response, in a previous notice we announced public hearings to be held in Anchorage and Barrow, AK. In addition, in this notice NMFS is announcing a separate hearing that will be held in Nome, AK, to provide greater opportunity for public comment.

76 Fed. Reg. 14882 (Friday, March 18, 2011) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
Endangered and Threatened Species; Proposed Threatened Status for Subspecies of the Ringed Seal
SUMMARY: On December 10, 2010, we, NMFS, published a proposed rule to list the Arctic (Phoca hispida hispida), Okhotsk (Phoca hispida ochotensis), Baltic (Phoca hispida botnica), and Ladoga (Phoca hispida ladogensis) subspecies of the ringed seal as threatened under the Endangered Species Act of 1973, as amended (ESA). As part of that proposal, we announced a public comment period to end on February 8, 2011, and then extended the comment period to March 25, 2011. NMFS has received requests for public hearings on this issue. In response, in a previous notice we announced public hearings to be held in Anchorage and Barrow, AK. In addition, in this notice NMFS is announcing a separate hearing that will be held in Nome, AK, to provide greater opportunity for public comment.

U.S. District Judge upholds FWS discretion to exclude areas from critical habitat designation in Cape Sable seaside sparrow dispute

03/16/2011

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CENTER FOR BIOLOGICAL DIVERSITY v. SALAZAR, Civ. No. 09-1684 (RMC) (D.D.C. Mar. 16, 2011)(Memorandum Opinion, U.S. District Judge Rosemary Collyer)

SUMMARY: Did the Secretary of the U.S Department of the Interior appropriate exercise executive discretion when he failed to designate the area containing sub-population A of the Cape Sable seaside sparrow as critical habitat because the designation would most likely interfere with the Comprehensive Everglades Restoration Plan which will return more natural water flows to the Everglades? Balancing these competing interests is complex and difficult but the result is left to the Secretary... As long as his decision will not result in the extinction of the species, the Secretary has broad discretion. The Secretary insists that sub-population will persist, albeit in far less area, and that the exclusion will not result in the extinction of the bird. Plaintiffs attack his reasoning and conclusions. In the end, it is a judgment call that the Secretary is empowered to make. As the Secretary has provided a rational basis for his determinations, summary judgment will be granted to the defendants.

BACKGROUND: The need for a revised designation of critical habitat has been the subject of litigation in D.D.C. for more than a decade.  In 2006, the U.S. Fish & Wildlife Service published a proposed rule designating critical habitat for the Cape Sable seaside sparrow.    After receiving public comment suggesting that the proposed rule might inhibit Everglades restoration, because the areas proposed to be designated as critical habitat included areas that were expected to become wetter as Everglades restoration moved forward, FWS modified its draft rule and excluded some of those areas from the final critical habitat rule.  See discussion in prior ESA blawg entries.

EXCERPT: To be sure, Plaintiffs might legitimately feel that their victory has been snatched from them, just as they expected to obtain the revised critical habitat sought since 1999. However, the Secretary has fully explained his change in position from the proposed designation to the Final Rule, and he cannot be criticized for taking public comments and Everglades restoration into account in revising the designation to exclude Units 1 and 2...  The Service prepared it Proposed Rule in a hurry, forced by court deadlines, and possibly with ESA myopia. When evaluating the best available scientific information limited to the Sparrow, it proposed that Units 1 and 2 be designated critical habitat. Push back from other stakeholders forced a re-evaluation -- the exact purpose of public comment and peer review.  With a broader view of conservation of the Sparrow, other species in the Everglades, and the Everglades' ecosystem itself, the Service determined that Subpopulation A of the Sparrow would persist without designation; that the Sparrow would not become extinct, and would in fact prosper in a restored Everglades; that designation of Units 1 and 2 would hamper Everglades restoration; and that these considerations rendered exclusion of Units 1 and 2 more beneficial overall than inclusion.  In other words, designation of the Units as critical habitat would impose a static restriction on an area that is beginning a dynamic and somewhat unpredictable revitalization. The Service has been remarkably candid and straightforward about the difficult choices it faced, and its reasoning for the Final Rule...  The very complexity of these issues shows that more than one reasonable conclusion could be drawn; under such circumstances, the Secretary is entitled to exercise his discretion.

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Photo of a Cape Sable seaside sparrow known to researchers as "UCLA" due to banding colors, available from wikipedia.  

FULL DISCLOSURE: Keith Rizzardi appeared as counsel for amicus in this case.

ESA news: ongoing litigation over actions and inactions, and lawsuits over actions yet to be thought of...

03/15/2011

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Lawsuits, as usual, dominated recent Endangered Species Act news.  Alaska filed suit challenging the designation by FWS of critical habitat for polar bears. See SitNews.  The Pacific Legal Foundation says critical habitat designations for green sturgeon will cause conflicts too.  See YouTube.  Plans to allow off-road vehicles in Florida's Big Cypress Preserve have led to a Notice of Intent to Sue based upon alleged impacts to Florida panthers and other species. See Sierra Club.  And the Ninth Circuit heard arguments on the delisting of the Grizzly bear. See AP.

While agency actions are the subject of much litigation, so too is agency inaction.  Increasingly, to the frustration of many environmental advocates, the federal regulatory agencies are exercising their discretion NOT to list species by relying upon the ESA's "warranted but precluded" concept, as was the case for the Flat tailed horned lizard (see LA Times). a Nevada butterfly known as the Mount Charleston blue (see Federal Register and Center for Biological Diversity).  In the case of the butterfly, FWS explained that nearly the entire range of the species is located on public lands managed by the U.S. Forest Service, "so habitats on these lands are not subject to large-scale development pressures that may occur on private lands."  Still, environmental advocates fear that the result of a failure to list a species will be more extinctions, like the recent declaration of the fate of the Eastern Cougar? See Scientific American.

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Alexander Crowell poses with the famous Barnard Panther, which he shot on November 24, 1881 at Barnard, Vermont. This was likely the last eastern cougar killed in Vermont. (Photo from the Vermont Historical Society. Caption and photo from Northeast Region FWS.

Meanwhile, with the increasing attention placed upon the Endangered Species Act, interest groups have become more sensitive to the long-term potential for human-wildlife interactions and similar conflicts.  Environmentalists want to list the African lion, see Fact Sheet, but Safari Club International argues that responsible hunting of the species increases revenues for conservation efforts. See Field & Streams.  Skiers in Colorado are concerned that plans to eventually reintroduce wolverines into alpline locations could lead to unwelcome restrictions on human uses.  See Aspen Daily News.  Farmers are concerned that expanding the scope of the ESA to require consultations on pesticides will lead to new restrictions and decreased productivity.  See KFGO.  Energy advocates want new legislation limiting environmental review of new energy projects.  See NY Times.  Indeed, hostility to the ESA has grown to the point that the New York Times dubbed Republicans for Environmental Protection as "Endangered Species."

P.S.  How about this interview exchange between former Secretary of Defense Donald Rumsfeld and Talk Radio Conservative Hugh Hewitt, (recently published in The Atlantic):
   Hewitt: Now I want to start, since we’re at the Nixon Library, I’m going to get to Nixon. But before I do that, I once asked President Nixon in his retirement why he signed the Endangered Species Act, and he said well, it seemed like a good idea at the time. You co-sponsored FOIA, the Freedom Of Information Act. What were you thinking?
   Rumsfeld: It seemed like a good idea at the time.

ESA news: as go the wolves, so goes the ESA?

03/07/2011

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The House of Representatives moves closer each day to large scale cuts in spending on environmental regulation, seeLA Times and the plan will affect implementation of the Endangered Species Act, especially as applied to wolves. See KXLF.  Asserting constitutional rights to bear arms, Tea Party activists support ESA reform, see Reuters, and the Democratic Governor of Montana, Brian Schweitzer, openly encouraged his state citizens to shoot wolves in outright defiance of the ESA. See KHQ.  "Get off your hind end in Washington, D.C., and fix the Endangered Species Act so it works in Montana," he told Fox News.

But dismantling environmental law is not the answer, says Treehugger.  As the non-partisan articles on Treehugger note, the ESA has a success story to tell too, and can be credited, in part, with the recovery of the wolf.  Spot.us even argues that impacts to elk in the Rocky Mountain ecosystems stem not from wolves, but from pesticides... also a subject of increasing ESA regulation.  Photo from the Gifford Pinchot Task Force.

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NOAA finds listing of 5 species of sawfish may be warranted

03/07/2011

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76 Fed. Reg. 12308 (Monday, March 7, 2011) / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
Listing Endangered and Threatened Species: 90-Day Finding on a Petition to List Six Species of Sawfishes as Endangered or Threatened Species Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding, request for information, and initiation of status review.
SUMMARY: We, NMFS, announce a 90- day finding on a petition to list six species of sawfish: Anoxyprisitis cuspidata, Prisitis clavata, P. microdon, P. pristis, P. zijsron, and the remaining non-listed population(s) of P. pectinata as endangered or threatened under the Endangered Species Act (ESA). We find that the petition and information in our files present substantial information indicating the petitioned action may be warranted for five of the sawfish species petitioned (A. cuspidata, P. clavata, P. microdon, P. zijsron, and all non-listed population(s) of P. pectinata). We find that the petition and information in our files do not present substantial information indicating that the petitioned action may be warranted for P. pristis. We will conduct a status review of the five species of sawfish (A. cuspidata, P. clavata, P. microdon, P.  zijsron, and all non-listed population(s)of P. pectinata) to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data regarding these species (see below).
DATES: Information and comments on the subject action must be received by May 6, 2011.

sawfishAquaria.jpg
Sawfishes are elasmobranches that historically were once widespread in tropical to warm temperate, shallow, nearshore marine habitats, estuaries, large rivers, and some lakes. Their distribution was presumably oncecontinuous in suitable habitat, but is now severely fragmented with many populations extirpated from large parts of their former range and remaining populations seriously depleted.  Information suggests that the primary threat to all sawfish species is from fisheries. Sawfishes are caught as bycatch in various fishing gears (rod and reel, shrimp nets, trawls, and gill nets). Sawfish species are highly susceptible to entanglement in fishing gears because their toothed-rostrum makes it difficult to avoid entanglement in almost all types of mesh nets. The saw becomes entangled in the net and fishers often harm the animal (remove their saw or kill them) when removing them from their nets. In some locations where they are or were abundant enough, sawfishes have been directly targeted because of their value as marine curio, weapons for cockfighting, medicines, and use in aquaria. Photo by Stacina taken at Aquarium of the Pacific, available online from Flickr

Biolgocial opinions, with subsequent effects on pesticides, can be challenged, says U.S. Circuit Court

03/05/2011

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DOW AGROSCIENCES LLC, v. NATIONAL MARINE FISHERIES SERVICE, No. 09-1968, 2011 WL 711855 (4th Cir., Mar. 2, 2011).
The question presented by this appeal is whether a “biological opinion” issued by the National Marine Fisheries Service to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA), 5 U.S.C. § 704. The Fisheries Service, which provided the biological opinion to the EPA as part of the EPA's process of reregistering for sale and use the insecticides chlorpyrifos, diazinon, and malathion, concluded that the insecticides will destroy or harm Pacific salmonids and their habitat....  In this appeal from the district court's dismissal order, we conclude that, under Bennett v. Spear, 520 U.S. 154 (1997), the Fisheries Service's biological opinion is a final agency action and that deferring judicial review of the biological opinion until the EPA acts on reregistration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, we conclude that the Fisheries Service's biological opinion is judicially reviewable under § 704 of the APA. We reverse and remand for further proceedings in the district court.

EXCERPT RE: CONDITIONS OF THE BIOP. The final BiOp concluded that chlorpyrifos, diazinon, and malathion would jeopardize numerous salmonid species and adversely affect critical habitat for them. Specifically, it found that the exposure to these pesticides will kill salmonids and, even at low exposure levels, will reduce salmonid growth, reduce the availability of prey, and impair salmonids' swimming and olfactory senses. In short, the Fisheries Service's BiOp concluded that reregistration of the insecticides would jeopardize the survival of 27 of 28 listed salmonid species and adversely affect the critical habitat of 25 of the 26 species for which critical habitat had been designated. The BiOp, however, recommended a “reasonable and prudent alternative” to the current registrations by (1) requiring setbacks for the application of insecticides that would be 500 feet away from salmonid habitats for ground applications and 1,000 feet for aerial application; (2) limiting application in high wind; (3) requiring a 20-foot strip of vegetation near surface waters connected to salmonid habitats; (4) requiring regular reports concerning fish mortality; and (5) limiting application when soil moisture is, or is likely to become, high. The BiOp also issued an “Incidental Take Statement” requiring that the EPA implement a Fisheries Service approved effectiveness monitoring plan.

A court ruling between Washington Toxics Coalition and the Environmental Protection Agency requires vendors to post warning signs on all products containing seven pesticides that pose threats to salmonids (for more information about this case go to www.watoxics.org).The WATER Institute's Salmon Safe Pesticide Awareness Campaign supports retailers in upholding this ruling by posting the required hazard signs and invite them to consider selling less harmful alternatives.

KEITHINKING: The court offered six detailed points in furtherance of its reasoning that the biop was indeed final agency action.  This case will probably provide a template for any future litigation involving the finality of a biological opinion (and perhaps other federal actions too):
  • First, the BiOp has immediate and independent legal consequences that cannot be changed on later review of the EPA's action on reregistration, even if the EPA relies on the BiOp…
  • Second, if the EPA were to choose not to rely on the Fisheries Service's BiOp, then the BiOp would not be subject to any review in a judicial proceeding challenging the FIFRA reregistration order. Yet, the BiOp would still exist, having significant legal consequences, as we have noted, because it makes final findings and defines the safe harbor from civil and criminal liability…
  • Third, when a court of appeals reviews the EPA's reliance on a BiOp issued by the Fisheries Service, the court's review would not be the same as if the district court were to review the BiOp itself directly under the APA…
  • Fourth, if the EPA were to choose to follow the Fisheries Service's BiOp, any challenge to the EPA's reliance on the BiOp on judicial review could not itself cause the EPA to alter the BiOp…
  • Fifth, the plain language of FIFRA's judicial review provisions does not contain “clear and convincing evidence” that Congress intended FIFRA's judicial review provisions to govern review of a BiOp issued by a different agency-the Fisheries Service, which is within the Department of Commerce.
See also Living on Earth and ESAblawg, and Washington State University.

FWS designates critical habitat for golden sedge

03/05/2011

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76 Fed. Reg. 11086 (Tuesday, March 1, 2011) / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R4–ES–2010–0003; MO 92210–0–0009–B4 / RIN 1018–AW55
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea (Golden Sedge)
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Carex lutea (golden sedge) under the Endangered Species Act of 1973, as amended. In total, approximately 202 acres (82 hectares) in 8 units located in Onslow and Pender Counties, North Carolina fall within the  boundaries of the critical habitat designation. DATES: This final rule becomes effective on March 31, 2011.

Carex lutea generally occurs on fine sandy loam, loamy fine sands, and fine sands with a pH of 5.5 to 7.2, and with a mean of 6.7. These soils are moist to saturated to periodically inundated. Carex lutea occurs in the Pine Savanna (Very Wet Clay Variant) natural community type. Community structure is characterized by an open to sparse canopy dominated by pond pine (Pinus serotina), and usually with some longleaf pine (P. palustris) and pond cypress (Taxodium ascendens). Carex lutea is threatened by fire suppression; habitat alteration such as land conversion for residential, commercial, or industrial development; mining; drainage for silviculture and agriculture; highway expansion; and herbicide use along utility and highway rights-of-way.

FWS not listing Unsilvered Fritillary Butterfly, but may list Sand Verbena Moth

03/05/2011

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76 Fed. Reg. 10310 (Thursday, February 24, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / FWS–R8–ES–2010–0078; MO 92210–0–0008 B2
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Unsilvered Fritillary Butterfly as Threatened or Endangered
ACTION: Notice of 90-day petition finding.
SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the unsilvered fritillary butterfly (Speyeria adiaste) as threatened or endangered under the Endangered Species Act of 1973 (Act), as amended, and designate critical habitat. Based on our review, we find that the petition does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary may be warranted. Therefore, we are not initiating a status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the unsilvered fritillary or its habitat at any time.
DATES: The finding announced in this document was made on February 24,2011.

EXCERPT: The petition states that the unsilvered fritillary has vanished from much of its range and asserts that this is due to human activities, including habitat loss and degradation due to burgeoning human populations, with resultant urban and suburban sprawl; increasing agriculture; extensive livestock grazing; off-road vehicle use; and other adverse land uses. The petition also asserts that climate change has taken and will take its toll through altered fire regimes, more severe and frequent droughts, and shifts in native plant distribution... The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information must contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act. We found no information to suggest that threats are acting on the unsilvered fritillary such that the species may become extinct now or in the foreseeable future.

The sand verbena moth  occurs in spits, dunes, and sandy coastal habitat that lack dense plant cover (COSEWIC 2003, p. 11). This species is distributed from the Queen Charlotte Islands, British Columbia, to Santa Barbara County, California.  See xerces.org  The unsilvered fritillary is a medium sized, brush-footed butterfly limited to the central coast region of California.  The unsilvered fritillary inhabits openings in conifer and redwood forests, as well as oak woodlands, chaparral, and grassy slopes.  Photo (copyright) viewable from WildEarth Guardians.  

76 Fed. Reg. 9309 (Thursday, February 17, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R1–ES–2010–0096; MO 92210–0–0008
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Sand Verbena Moth as Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding and initiation of status review.

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the and verbena moth, Copablepharon fuscum, as endangered or threatened under the Endangered Species Act of 1973, as amended. Based on our review, we find the petition presents substantial information indicating that listing the sand verbena moth may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing the sand verbena moth as endangered or threatened is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

EXCERPT: We have little information to suggest that dune stabilization may pose a significant threat to the sand verbena moth within its known range in the State of Washington, and whether the sand verbena moth may occur elsewhere on the Pacific Coast of the United States where its host plant is found is uncertain. However, we acknowledge that the Committee on the Status of Endangered Wildlife in Canada, which we consider to be a reliable source of scientific information, considers dune stabilization to be a significant threat to the species within its range in British Columbia. Therefore, based on this information, we find that the petition presents substantial scientific or commercial information  indicating that dune stabilization may pose a threat to the sand verbena moth such that the petitioned action may be warranted.

ESA good news: NOAA says no need to list Alabama shad, and improving estuary science for salmonid species

03/05/2011

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76 Fed. Reg. 9320 (Thursday, February 17, 2011) / Notices
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
Docket No. 100603239–0275–02 / RIN 0648–XW85
Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Alabama Shad as Threatened or Endangered Under the Endangered Species Act (ESA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Notice of 90-day petition finding.

SUMMARY: We (NMFS) announce a 90-day finding on a petition to list Alabama shad (Alosa alabamae) as threatened or endangered and designate critical habitat under the ESA. We find that the petition does not present substantial scientific or commercial information indicating that the petitioned actions may be warranted.

ShadAlabama.jpg
The Alabama shad is a euryhaline, anadromous species that spawns in medium to large flowing rivers from the Mississippi River drainage to the Suwannee River, Florida. The largest remaining population probably occurs in the Apalachicola River, Florida, downstream of the Jim Woodruff Lock and Dam.  While little is known of the Alabama shad’s thermal tolerance, alosids in general are notoriously sensitive to thermal stress. Photo from Outdoor Alabama.

EXCERPT: The resilience of Alabama shad and the species’ ability to respond positively to conservation efforts is evident in the Apalachicola-Chattahoochee-Flint (ACF) River System. Beginning in 2005, a cooperative study supported by multiple local, academic, State, and Federal conservation partners, including NMFS, started tracking Alabama shad and other fish species in the Apalachicola River (USFWS, 2008; TNC, 2010; Ely et al., 2008). The study also evaluated the feasibility of passing fish upriver of the Jim Woodruff Lock and Dam (JWLD), located at the confluence of the Chattahoochee and Flint Rivers, which presents the first major impediment on the Apalachicola River to the upstream migration of Alabama shad to their historical spawning grounds. The results of this collaborative study showed that the existing lock could be used to pass fish upriver where they could potentially reproduce in great numbers. Based on these findings, in 2008, the U.S. Army Corps of Engineers (USACE) began operating the lock at JWLD to allow fish passage. The locks are operated twice a day to correspond with the natural movement patterns of migrating fish during spawning seasons—February through May each year. Alabama shad have been found to pass upstream of the lock with 45 percent efficiency (Young, 2010) and, as a result, can access over 150 miles of historical habitat and spawning areas in the ACF River System for the first time in more than 50 years (TNC, 2010). The current 2010 population estimate for the ACF River System of 98,469 Alabama shad obtained as a result of this study (Young, 2010) is almost four times larger than the previous high estimate of 25,935 obtained in 2005 (Ely et al., 2008). Since age-2 adults are the most prevalent age class of spawning adults, the large increase in the Alabama shad population in the Apalachicola in 2010 is likely a direct result of JWLD being operated for fish passage beginning in 2008.

KEITHINKING: Woo-hoo! An ESA story with good news.

***

76 Fed. Reg. 8345 (Monday, February 14, 2011) / Notices
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration
RIN 0648–XA130
Endangered and Threatened Species; Recovery Plan Module for Columbia River Estuary Salmon and Steelhead
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability; recovery plan module for Columbia River estuary salmon and steelhead.

SUMMARY: NMFS announces the adoption of the Columbia River Estuary Endangered Species Act (ESA) Recovery Plan Module for Salmon and Steelhead (Estuary Module). The Estuary Module addresses the estuary recovery needs of all ESA-listed salmon and steelhead in the Columbia River Basin. All Columbia Basin salmon and steelhead ESA recovery plans will incorporate the Estuary Module by reference.

EXCERPT:  While local recovery planners appropriately focus on the tributary conditions within their jurisdictions and domains, NMFS recognized the need for consistent treatment of the factors in the estuary that affect all of the listed salmon and steelhead in the Columbia Basin. The Estuary Module addresses limiting factors, threats, and needed actions in the Columbia River estuary for the 13 ESUs and DPSs of salmon and steelhead listed in the basin. Each locally developed recovery plan will incorporate by reference the Estuary Module as its estuary component. This approach will ensure consistent treatment across locally developed recovery plans of the effects of the Columbia River estuary as well as a system-wide approach to evaluating and implementing estuary recovery actions…  
Conclusion.  The Estuary Module contributes to all the Columbia Basin salmon and steelhead recovery plans by analyzing limiting factors and threats related to survival of listed salmon and steelhead in the Columbia River estuary, identifying site-specific management actions related to those limiting factors and threats, and estimating the cost and time to implement those actions. NMFS will incorporate the Estuary Module by reference into all Columbia Basin salmon and steelhead recovery plans. We conclude that the Estuary Module provides information that helps to meet the requirements for recovery plans
under ESA section 4(f), and adopt it as a component of Columbia.

KEITHINKING: Two good news stories in a row? Is that a trend?

FWS declines to list four distinct Bison population segments, and federal judge rejects lawsuit seeking to enjoin culling of diseased bison

03/05/2011

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76 Fed. Reg. 10299 (Thursday, February 24, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17/ Docket No. FWS–R6–ES–2010–0095; MO 92210–0–0008–B2
Endangered and Threatened Wildlife and Plants: 90-Day Finding on a Petition To List the Wild Plains Bison or Each of Four Distinct Population Segments as Threatened
ACTION: Notice of 90-day petition finding.
SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the wild plains bison (Bison bison bison), or each of four distinct population segments (DPSs), as threatened under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition does not present substantial information indicating that listing may be warranted. Therefore, we are not initiating a status review in response to this petition. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the wild plains bison or its habitat at any time.

Bison_herd_grazing_at_the_National_Bison_Range.jpg
In the 1800s, wild plains bison declined from approximately 30 million individuals rangewide to perhaps as few as 541.  In 2007, there were approximately 420,000 plains bison in commercial herds in the United States and Canada; in 2008, there were an estimated 20,500 wild plains bison in conservation herds. Photo of Bison herd on federal lands from wikipedia

EXCERPT: Summary of Five Factor Evaluation. We have carefully examined information from the petition and from our files regarding the status of wild plains bison. We also consulted with Service biologists and managers from NWRs that have wild plains bison. There have been several impacts to the wild plains bison; in particular, market hunting caused a precipitous decline in the mid- to late-1800s. Diligent efforts by a few individuals prevented extinction. However, subsequent attempts to crossbreed plains bison with cattle resulted in low-level, but widespread, presence of cattle DNA. Nevertheless, the wild plains bison appears to have retained much of its genetic diversity. However, the presence of both commercial herds and conservation herds has resulted in some conflicting legal designations. Brucellosis in the Greater Yellowstone Ecosystem requires special management. Despite these stressors, the numbers of plains bison have increased dramatically since the early 1900s, and population trends of wild plains bison in conservation herds appear to be stable to increasing in recent years. The number of conservation herds also continues to increase. In summary, the petition does not present substantial information that wild plains bison as a subspecies may require listing.

KEITHINKING: Tough week for bison.  In other bison-related litigation, environmental groups recently suffered a significant setback when the Court rejected their attempts to “stop the slaughter” of brucellosis-infected bison herds.  In Western Watersheds Project v. Salazar, 2011 WL 499275 (D. Mont., Feb. 14, 2011), U.S. District Judge Charles Lovell made his legal conclusions crystal clear:

This is not the first time the District of Montana and Ninth Circuit courts have been down this path, and each time it is seemingly under claimed emergency conditions. For those of us who admire the Yellowstone bison, it is easy to be sympathetic to an emotional appeal to “stop the slaughter.” Yet it is clear that this population of wild bison-diseased and healthy-ought not be allowed to reproduce prolifically beyond the capacity of its range without the institution of scientific management. This has been recognized and authorized by Congress and well-implemented administratively in proper fashion. Distasteful as the lethal removal may be to some, it is clearly one of the foremost management tools-time honored-necessarily utilized to protect the species, the habitat, and the public. There is an annual season for lethal removal for wild animals in most of the United States and particularly in the states surrounding Yellowstone Park. Deer, antelope, elk, moose, and others are removed annually as deemed necessary in order to scientifically control populations and accomplish these same resource goals. This is called “hunting season,” and the phenomenon is widely accepted by the public.  For all of the foregoing reasons and the studies and authorities relied on by Defendants, the Court concludes that Defendants have not violated the National Environmental Policy Act, the National Forest Management Act, the National Park Service Organic Act, or the Yellowstone Enabling Act, and that the requisites for injunctive relief have not been proven.

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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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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