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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.

MOU increases NOAA role in regulation of ocean energy

05/29/2011

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Last week, the U.S. Department of Interior and the U.S. Department of Commerce announced that they have signed a landmark Memorandum of Understanding (MOU) on Coordination and Collaboration Regarding Outer Continental Shelf Energy Development and Environmental Stewardship (May 19, 2011).  Through the agreement, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the National Oceanic and Atmospheric Administration (NOAA) intend to improve decision making related to ocean energy development, by improving use of science and expertise to fulfill the agency’s stewardship duties and to conserve the living marine resources and the ecosystems upon which they depend.  While the agreement does not alter legal responsibilities, it implements, in part, the agency responsibilities pursuant to the Endangered Species Act.  Notably, NOAA representatives will be working with BOEMRE on environmental analyses earlier in the regulatory process, the agencies will hold quarterly meetings of senior leadership officials to discuss ocean energy and related policy and scientific issues, and they expect to work together on safety issues and oil spill prevention and response efforts.

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The Cape Wind project proposed for the Nantucket shoals would be the first offshore wind farm in the United States.  The wind farm would consist of 130 turbines and would generate 420 megawatts of power, nearly equivalent to the peak load for the Cape and Islands.  Working with BOEMRE's predecessor agency, the Minerals Management Service, NOAA approved abiological opinionfor the project in November 2008.  For more information, visit CapeWind.org

U.S. District Judge in Alabama dismisses part of lawsuit related to Deepwater Horizon, but claims of alleged breach of duty to insure endangered species protection will proceed

05/28/2011

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Defenders Of Wildlife v. Bureau Of Ocean Energy Management, Regulation, and Enforcement, et al., Civil Action No. 10–0254–WS–C, 2011 WL 2013977 (S.D. Alabama, May 23, 2011)(William H. Steele, Chief Judge).

BACKGROUND. Plaintiff, Defenders of Wildlife (“DOW”), brought this action against a collection of federal defendants, including the Bureau of Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”); the United States Department of the Interior; and Ken Salazar, Secretary of the Interior (collectively, the “Federal Defendants”). The lawsuit proceeds from DOW's position that, in the wake of the Deepwater Horizon drilling rig explosion and oil spill in the Gulf of Mexico on April 20, 2010, the Federal Defendants have failed to modify their policies and practices concerning offshore oil and gas leasing operations in the Gulf as required by the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (“NEPA ”); the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA ”); and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA ”).

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From the beginning, the BP Deepwater Horizon disaster was expected to threaten the North Atlantic bluefin tuna, sea turtles, sharks, whales, porpoises, dolphins, brown pelicans, oysters, shrimp and blue crab, menhaden and marsh-dwelling fish, beach-nesting and migratory shorebirds, and warblers, orioles, buntings, flycatchers, and swallows.  In fact, in a recent article published in BioScience, University of New Hampshire professor Fred Short and others identified 39 additional marine species, beyond the 14 already protected by federal law, that are at an elevated risk of extinction.  In other words, they found 53 species with a distribution that overlaps the area of the oil spill that are categorized as critically endangered, endangered, or vulnerable by the International Union for Conservation of Nature's (IUCN) Red List IUCN Red List; yet of these species, only 14 receive legal protection in the United States under the Endangered Species Act, the Migratory Bird Treaty Act, or the Marine Mammal Protection Act. See, Science Daily.  Photo of the Deepwater Horizon fire on April 22, 2010 by the U.S. Coast Guard, available online at TucsonSentinel.com.

THE COMPLAINT: The operative Third Amended Complaint (doc. 61) summarizes the Federal Defendants' alleged violations by asserting that BOEMRE continued accepting bids on more than 200 new deepwater leases in Lease Sale 213 after the April 2010 oil spill, without preparing a Supplemental Environmental Impact Statement, reinitiating consultation under the ESA, or insuring that its actions will not jeopardize the survival of endan-gered and threatened species. (Doc. 61, at 2.) In a nutshell, DOW contends that, by continuing to accept lease bids, the Federal Defendants have failed adequately to consider the new information gleaned from the Deepwater Horizon oil spill in administering the oil and gas leasing program in the Gulf of Mexico, and that the Federal Defendants' deficiencies in that regard violate NEPA, the ESA, and the APA...  Claim Three alleges that BOEMRE violated the APA and the ESA by failing to reinitiate consultation with the National Marine Fisheries Service (“NMFS”) and U.S. Fish and Wildlife Service (“FWS”) based on new information from the Deepwater Horizon spill showing that deepwater drilling in that area may harm endangered or threatened species and critical habitat. And in Claim Four, DOW maintains that BOEMRE violated the APA and the ESA by “proceeding with lease sales in the Gulf after the Deepwater Horizon incident ... in violation of its independent duty to insure that its actions are not likely to jeopardize the continued existence of any listed species.”

RULING RE: CLAIM THREE: The Federal Defendants maintain that Claim Three should be dismissed in its entirety because it proceeds from a false premise, namely, that BOEMRE has not reinitiated such consultation. To demonstrate the inaccuracy of DOW's position, the Federal Defendants proffer a pair of letters dated July 30, 2010, from BOEMRE to the NMFS and FWS. The letter to NMFS specifies that BOEMRE “requests that the National Marine Fisheries Service (NMFS) reinitiate consultation (based on the existing consultation and resulting Biological Opinion (BO) dated June 29, 2007) under Section 7 of the ESA on the effects of the Five–Year Outer Continental Shelf Oil and Gas Leasing Program (2007–2012) in the Central and Western Planning Areas of the Gulf of Mexico. This request is in response to the Deepwater Horizon (DWH) incident and is meant to comply with 50 C.F.R. § 402.16.”  The letter to FWS is substantively identical to the NMFS letter in all material respects...  DOW protests that deeming Claim Three moot “based on this barest of effort put forth by a federal agency would make a mockery of the ESA's command that each federal agency ensure that its activities are not likely to jeopardize the continued existence of threatened and endangered species.”  Plaintiff maintains that Claim Three is not moot because this Court could still “grant declaratory relief deeming Federal Defendants to be in violation of the ESA with respect to the Multisale Plan” and because the Federal Defendants “have not evidenced any intent to correct the ongoing ESA violations during reinitiation of consultation.”  But these arguments improperly expand the scope of Claim Three, and conflate it with Claim Four..   Count Three goes no further than to allege that BOEMRE's “failure to reinitiate consultation with NMFS and FWS violates § 7(a)(2) of the ESA ... and its implementing regulations.”  It is undisputed that BOEMRE, in fact, reinitiated such consultation back in July 2010. As such, the entire premise of Claim Three (namely, that BOEMRE has violated the ESA by failing to reinitiate consultation) has been mooted by the agency's subsequent conduct (namely, its reinitiation of consultation). There is no reason for Claim Three to remain in play, inasmuch as any need for the relief sought therein has been obviated by the Federal Defendants' actions. Stated differently, plaintiff has already gotten exactly what it asked for vis a vis this cause of action.

RULING RE: CLAIM FOUR: The Federal Defendants also move for dismissal of Claim Four, in part. In that claim, DOW alleges that in relying on “faulty opinions in proceeding with lease sales in the Gulf after the Deepwater Horizon incident,” BOEMRE has “failed to insure that there will be no jeopardy to endangered or threatened species resulting from actions it implements,” in violation of the ESA and APA. Claim Four flows from the ESA's directive in § 7(a)(2) that federal agencies must insure that their actions are not “likely to jeopardize the continued existence of any endangered or threatened species.” 16 U.S.C. § 1536(a)(2)...  Federal Defendants' Rule 12(b) Motion construes Claim Four as being geared toward future lease sales. But careful scrutiny of the Third Amended Complaint reveals no allegations in Claim Four that future lease sales approved by BOEMRE may violate the ESA's requirement that agencies insure that their actions are not likely to jeopardize listed species. Indeed, a fair reading of Claim Four shows no reference to future lease sales at all. On its face, Claim Four is aimed exclusively at past and current agency actions, and specifically BOEMRE's reliance on faulty NMFS/FWS opinions “in proceeding with lease sales in the Gulf after the Deepwater Horizon incident.” Thus, plaintiff has framed the challenged conduct on which Claim Four is grounded as being actions that BOEMRE has taken and is taking now in the wake of the Deepwater Horizon spill, rather than lease sale approvals that may or may not happen at some future time with or without certain conditions or restrictions, after the conclusion of reinitiated consultation with NMFS/FWS.

KEITHINKING: This action includes intervenors, too; namely, the American Petroleum Institute, the Independent Petroleum Association of America, the U.S. Oil & Gas Association, the International Association of Drilling Contractors, and Chevron U.S.A., Inc.  While they too filed a motion to dismiss, adding additional arguments, the end results were the same.  Claim Three was dismissed, claim four was not.  Also, in the National Environmental Policy Act (NEPA) portion of this dispute, Claim Two was not dismissed.  Claim Two focuses on Lease Sale 213, and alleges an APA violation based on BOEMRE's acceptance of bids for more than 200 new oil and gas leases in the Gulf in that lease sale following the Deepwater Horizon spill, “in reliance on the invalid conclusions of the Multisale EIS and Environmental Assessment—Finding of No Significant Impact for Sale 213 and without supplementation of the EIS based on significant new circumstances and information.”  For more information, visit the Original Complaint, Defenders of Wildlife, and Jurist.org.


NOAA says not yet to listing of the Atlantic bluefin tuna

05/28/2011

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Yesterday, NOAA made its announcement of a decision on the Center for Biological Diversity's petition to list the Atlantic bluefin tuna, concluding that listing of the species was not warranted, however, NOAA also noted continued concern, and intends to revisit the decision with new science.  The statement further explained as follows: ":On May 27, 2011, after an extensive scientific review, NOAA announced that Atlantic bluefin tuna currently do not warrant species protection under the Endangered Species Act.  NOAA has committed to revisit this decision by early 2013, when more information will be available about the effects of the Deepwater Horizon BP oil spill, as well as a new stock assessment from the scientific arm of the International Commission for the Conservation of Atlantic Tunas, the international body charged with the fish’s management and conservation.  NOAA is formally designating both the western Atlantic and eastern Atlantic and Mediterranean stocks of bluefin tuna as 'species of concern.' This places the species on a watchlist for concerns about its status and threats to the species under the Endangered Species Act."

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The Atlantic bluefin tuna, Thunnus thynnus, is regarded as one of the most prized species in the ocean. It’s also one of the biggest, reaching average lengths of 6.5 feet, and weighing about 550lbs.  One fish can sell for tens of thousands of dollars.  Bluefin, which remain a staple in some sushi restaurants, have been declining for decades due to overfishing.  A record-breaking $396,000 bluefin tuna was sold at auction in January 2011.  Bluefin tuna are at the top of the food chain, giving them an important role in the ecosystem. Top ocean predators, they sometimes hunt cooperatively, much like wolves.  With streamlined bodies and retractable fins, they can bolt through water at speeds of 50 miles per hour, crossing oceans in weeks.  Photo by NOAA available at scimag.com

FWS announces draft recovery plan for Mount Graham red squirrel

05/27/2011

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76 Fed. Reg. 30957 (Friday, May 27, 2011) / Notices
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
FWS–R2–ES–2011–XXXX; 12345–1234–0000–C2
Endangered and Threatened Wildlife and Plants; Notice of Availability of a Draft Recovery Plan, First Revision, Mount Graham Red Squirrel for Review and Comment
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of document availability for review and public comment.

SUMMARY: We, the Fish and Wildlife Service, announce the availability of our draft recovery plan, first revision, for the Mount Graham Red Squirrel (Tamiasciurus hudsonicus grahamensis) under the Endangered Species Act of 1973, as amended (Act). This species is endemic to upper-elevation forests in the Pinalen˜ o Mountains in southeastern Arizona. We request review and comment on our plan from local, State, and Federal agencies, Tribes, and the public. We will also accept any new information on the species’ status throughout its range.

LINKS: visit the U.S. FWS species profile and the 1993 Recovery Plan and the 2011 Draft Recovery Plan.
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The Mount Graham red squirrel exists only in the upper-elevation forests of the Pinalen˜o Mountains in southeastern Arizona, and likely represents a relictual population of what was once a much more widely distributed taxon. Threats to the subspecies at the time of listing included its small population size and range; changes in forest age structure and density within the squirrel’s habitat; loss of habitat due to development, road construction, and forest fire; and competition with the introduced Abert’s squirrel. These same threats to the red squirrel’s habitat continue today, compounded by the additional threats of climate change (including drought), insect infestation, and fire suppression activities. Recent research also indicates that predation, competition with Abert’s squirrels, and demographic factors (mainly due to its small population size) may impact the Mount Graham red squirrel population more than expected.  Photo from Mount Graham Biology Program - The University of Arizona

U.S. FWS and NOAA announce ESA reform efforts

05/26/2011

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In a press release issued today, the U.S. Fish and Wildlife Service and NOAA Fisheries Service formally announced their joint effort to identify and implement administrative changes to the Endangered Species Act aimed at accelerating recovery of imperiled species, enhancing on-the-ground conservation delivery, and better engaging the resources and expertise of partners to meet the goals of the ESA.  The Services will work to harness the expertise of career agency employees, the conservation community, landowners and other affected interests, and the broader public, to address selected issues. In particular, efforts will focus on:

-- Clarifying, expediting, and improving procedures for the development and approval of conservation agreements with landowners, including habitat conservation plans, safe harbor agreements, and candidate conservation agreements;

-- Reviewing and revising the process for designating critical habitat to design a more efficient, defensible, and consistent process;

-- Clarifying the definition of the phrase “destruction or adverse modification” of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat; and

-- Clarifying the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult.  An incidental take statement is a component of a biological opinion that specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts.  Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.

More information on Improving ESA Implementation can be found online at http://www.fws.gov/endangered/improving_ESA/reg_reform.html

FWS lists Salmon-Crested cockatoo as threatened species

05/26/2011

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76 Fed. Reg. 30758 (Thursday, May 26, 2011) / Rules and Regulations
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R9–IA–2009–0056; MO 92210–1111F105 B6 / RIN 1018–AW00
Endangered and Threatened Wildlife and Plants; Listing the Salmon-Crested Cockatoo as Threatened Throughout its Range with Special Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service, determine threatened status for the salmon-crested cockatoo (Cacatua moluccensis) under the Endangered Species Act of 1973, as amended (Act). This final rule implements the Federal protections provided by the Act for this species. We are also publishing a special rule for the species.

EXCERPT: The species is likely to become in danger of extinction within the foreseeable future throughout all of its range primarily due to extensive logging and conversion of lowland forests to agricultural lands and plantations (Factor A) and uncontrolled, illegal trapping for the domestic and international pet trade within Indonesia (Factor B). Also, existing regulatory mechanisms, as implemented, are inadequate to mitigate the current threats to the salmon-crested cockatoo (Factor D). Although El Nin˜ o forest fires are not currently adversely affecting the salmon-crested cockatoo, fires will be a threat in the foreseeable future due to the extensive planned logging and clearing of land and predicted increase in number and severity of El Nin˜o events due to global climate change (Factor E).

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Cockatoos are only found in Australasia—a few archipelagos in Southeast Asia (Philippines, Indonesia, East Timor, Tanimbar, Bismarck, and Solomon), New Guinea, and Australia—suggesting that the modern species arose after the breakup of Gondwanaland, a southern supercontinent that existed 200–500 million years ago.  Cockatoos tended to be recorded in mature, open-canopied lowland forests with some very large, tall trees and some low vegetation. Research found that cockatoo abundance was significantly associated with the presence of potential nest trees and strangling figs, a potential food source. Photo available online at U.S. FWS from wikimedia commons.

ESA news: policy clashes over energy issues, litigation over fish, and conflicts between listed species and the military

05/25/2011

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Energy concerns have been at the heart of numerous recent policy debates over the implementation of the Endangered Species Act.  The Department of Interior's  efforts related to the dunes sagebrush lizard continue to generate controversy.  As reported in the Texas Tribune, the Texas House of Representatives recently approved a resolution calling on the U.S. Fish and Wildlife Service to rescind its proposal to bring the lizard under the Endangered Species Act.  Some New Mexico lawmakers agree.  See El Paso Times. Legislators fear the potential impacts of ESA-related requirements upon the energy industry.  But elsewhere, the Bonneville Power Authority is sometimes stopping the operation of area wind farms (offering hydropower energy instead) to respect regulatory and wildlife concerns, and to prevent the "overgeneration" of excess energy. See OregonLive.  But in other significant policy news, changes to the Department of Interior's policies regarding the meaning of a "significant portion of the range" will impact preble's meadow jumping mouse, reports theNew York Times.  

Meanwhile, the litigation drum keeps beating.  Right on schedule, the Center for Biological Diversity formally notified the National Marine Fisheries Service today that it intends to sue the agency for failing to protect Atlantic bluefin tuna under the Endangered Species Act. CBD's petition, originally filed with NOAA on May 24, 2010, alleges that the tuna faces extinction due to overfishing (see photo below from BrightHub of bluefin tuna for sale at Tsukiji Fish Market), habitat degradation, and the BP Deepwater Horizon oil spill.  (David Suzuki says we should stop eating the fish, too.) And the Rome News Tribune offered a helpful summary of the tri-state water wars between Florida, Georgia and Alabama.

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The U.S. Military is also increasingly caught up in Endangered Species Act issues.  As the Tucson Citizen notes, the Center for Biological Diversity (CBD) has multiple disputes with the military over its effects on endangered and threatened species, particularly in Fort Huachuca in Cochise County southeast of Tucson, Fort Irwion in California’s Mohave Desert, and on Okinawa.  Military strikes are also not conducive to the well-being of the threatened Mohave ground squirrel, which makes its home in Edwards Air Force Base in California’s Mojave Desert.  See
Government Computer News.  And at Fort Bullis, the Army faces challenges with impacts to the golden cheeked warbler.  See San Antonio Express. But if proposed legislation to amended the Equal Access to Justice Act passes, then the U.S. military may not have to pay attorney's fees to the litigants. See Tucson Citizen.  And in California, some legislators are embracing the idea of an ESA exemption for salmon, smelt and the Sacramento Delta.  See San Francisco Chronicle.

And finally, the White House has made available the Department of Interior's Preliminary Plan for Retrospective Regulatory Review, and the document includes numerous recommendations related to the Endangered Species Act, including changes to: Critical Habitat Mapping, Conservation Agreements, State Roles In Listings, Critical Habitat Designations, Adverse Modification, Incidental Take Statements, and the interplay of FIFRA and the ESA.  Hat Tip to Steve Hall, Moderator of U.S. Endangered Species Act Practitioners on LinkedIn.

Case updates: compensating Klamath water users; court actions on settlements in listing and Sacramento Delta disputes; potential listing of Atlantic sturgeon no basis for stay.

05/25/2011

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Klamath Irrigation District v. United States,635 F.3d 505 (Fed. Cir. 2011).  In an article by Marten Law, Douglas W. MacDougal and Jessica K. Ferrell summarized the recent decision by the U.S. Court of Appeals for the Federal Circuit on the conflicts between the Endangered Species Act and the property rights of Klamath basin water users, explaining, in part, as follows: "The water users and irrigation districts in the Klamath seek to recover from the United States for their widely-publicized losses caused by the government’s decision in 2001, during a drought, to use the available water for fish listed under the Endangered Species Act (ESA). The plaintiffs’ claims, filed in the United States Court of Federal Claims (Court of Claims), are based on the Fifth Amendment’s Takings Clause, breach of the various contracts with the government, and breach of the Klamath Basin Compact (Compact). The Court of Claims rejected these efforts several years ago by dismissing all of plaintiffs’ claims. Plaintiffs appealed, and the United States Court of Appeals for the Federal Circuit (Court of Appeals) reversed...  On appeal to the Court of Appeals for the Federal Circuit, the panel was not certain that there was no compensable property interest under Oregon law. It accordingly certified several questions to the Oregon Supreme Court...  The Oregon Supreme Court ruled that equitable rights may well have arisen, but that specific contractual terms could have reserved those rights, or otherwise modified or eliminated them, and the outcome could change depending on that inquiry. Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (2010) (en banc) (“Certification Decision”) .... Thus the ultimate decision on the equitable rights of the districts and irrigators depends upon the nature of their contracts, which would require a hearing to determine...  On remand, the Court of Claims must: (1) consider the takings and Compact claims in light of the Certification Decision; 2) determine whether, for purposes of the breach of contract claims, the government can establish that contract performance was impossible within the meaning of the sovereign acts doctrine; and (3) decide the breach of contract claims as appropriate."  

IN RE ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION, Misc. Action No. 10-377 (EGS), MDL Docket No. 2165.  InEndangered Species and Wetland Report, Steve Davies discusses U.S. District Judge Sullivan's (D.D.C.) attempt to push the Center for Biological Diversity to join the settlement that seeks to resolve the many disputes over the wildlife agency's delayed responses to the many pending petitions to list species.  While the U.S. Fish & Wildlife Service and WildEarth Guardians reached an agreement, CBD has refused to sign on, and the judge stayed the case for another month directing CBD to try again.  See also, Joint Motion For Approval Of Settlement Agreement And Order Of Dismissal Of Guardians’ Claims (May 10, 2011).  

Coalition For A Sustainable Delta v. Mccamman, No. 1:08–Cv–00397 OWW GSA, 2011 Wl 1332196 (E.D. Cal. April 6, 2011)(Oliver W. Wanger, U.S. District Judge)(Memorandum Decision Granting Request For Approval Of Consent Decree)
    BACKGROUND: On January 29, 2008, the Coalition for a Sustainable Delta (and other water users interests) filed suit against Defendant John McCamman, in his Official Capacity as Director of the California Department of Fish and Game (“DFG”), alleging that State Defendant's enforcement of California's striped bass sport fishing regulations, Cal.Code Regs. tit. 14, § 5.75, cause a striped bass population that is higher than it otherwise would be in nature in the Sacramento–San Joaquin Delta and associated rivers and tributaries, which causes “take” of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt (collectively, “Listed Species”), in violation of section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538. State Defendant disputes that DFG's enforcement of the striped bass sport fishing regulations causes unlawful “take.” Over a period of more than two months, Plaintiffs and State Defendants (collectively, “Moving Parties”) engaged in arms-length settlement negotiations. Defendant–Intervenors claim to have been excluded from the negotiations until late in the process, after a tentative agreement had already been reached. Defendant–Intervenors declined to sign the settlement and made a counter-offer that was not adopted by the Moving Parties. The Moving Parties now move for the entry of a order approving their Settlement Agreement under the standards applicable to consent decrees.
    EXCERPT: The Settlement Agreement is Otherwise in the Public Interest.  The Agreement serves the public interest by avoiding protracted litigation and conserving re-sources. See Citizens for a Better Environment v. Gorsuch, 718 F.2d 1126, 1117 (D.C.Cir.1983) (“Not only the parties, but the general public as well, benefit from the saving of time and money that results from the voluntary settlement of litigation.”). The Agreement requires State Defendant to address the issue of predation in a manner that is consistent with the purposes of the ESA and with the conservation and protection of the Listed Species. See United States v. Salt River Project Agric. Improvement and Power Dist., 2008 WL 5332023, at *3 (D.Ariz. Dec. 22, 2008) (finding Consent Decree served the public interest because it was consistent with the purposes of the Clean Air Act). The Settlement Agreement ensures that the combined expertise and resources of the State Defendant, NOAA Fisheries, and FWS, the state and federal agencies responsible for protecting wildlife resources (including the Listed Species) in the Delta and tributaries thereto, are brought to bear on the issue of striped bass predation. The Agreement also provides a means for funding and researching predation impacts on one or more fish species listed under the federal and/or California Endangered Species Acts in the Delta and/or the anadromous waters of the Sacramento and San Joaquin river watersheds. Settlement Agreement at 2, 17.

Delaware Dep’t of Natural Resources v. U.S. Army Corps of Engineers, 751 F.Sup.2d 715 (D. Delaware, Nov. 16, 2010).
    BACKGROUND: Delaware Department of Natural Resources and Environmental Control and related parties brought action pursuant to Administrative Procedure Act to challenge decision made by U.S. Army Corps of Engineers (Corps) and related defendants to proceed with dredging project to deepen main navigation channel of Delaware River from 40 feet to 45 feet, allegedly without obtaining requisite federal and state approval pursuant to Clean Water Act, the Clean Air Act, Coastal Zone Management Act and Delaware Code.  However, on October 26, 2010, environmental plaintiffs filed a motion to stay the proceedings because, on October 6, 2010, the National Marine Fisheries Service (“NMFS”) proposed to list Atlantic sturgeon, a fish native to the Delaware River channel, as endangered under the Endangered Species Act (“ESA”). This may result in the Atlantic sturgeon's gaining protected status under the ESA “within the next twelve months.”
    EXCERPT OF ESA PORTION OF RULING: "In determining how to exercise its discretion with respect to a motion to stay, a court considers such factors as: (1) the length of the stay requested; (2) the “hardship or inequity” that the movant would face in going forward with the litigation; (3) the injury that a stay would inflict upon the non-movant; and (4) whether a stay will simplify issues and promote judicial economy. See Landis v. North Am. Co.,  299 U.S. 248 at 254–55 (1936)  … Upon careful review, environmental plaintiffs do not present any ripe claims for the court's consideration.  The proposed listing has just recently occurred and the Corps has yet to render any determinations. A formal conference is required if the Deepening Project is “likely to jeopardize the continued existence” of the Atlantic sturgeon, 16 U.S.C. § 1536(a)(4)—a finding yet to be made by the Corps. The Corps states that it is presently conferring with NMFS to determine its obligations under the ESA in light of the proposed listing of the Atlantic sturgeon, and may request a formal conference as discussions progress … Based on the foregoing, the court finds that plaintiffs have not met their burden of persuasion that, on balance, a stay is favored in this case."  On the merits, the Court upheld the Corps action, finding that project fell within the navigation exception of the Clean Water Act, which exempted Corps from regulation under CWA and affiliated state programs, and the Corps' decision to invoke the navigation exception was not arbitrary and capricious.

FWS may list spot tailed earless lizard, and revises critical habitat for Lane Mountain milk vetch

05/25/2011

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76 Fed. Reg. 30082 (Tuesday, May 24, 2011) / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
50 CFR Part 17 / Docket No. FWS–R2–ES–2011–0017 / MO 92210–0–0008B2
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Spot-Tailed Earless Lizard 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 (Service), announce a 90-day finding on a petition to list the spot-tailed earless lizard (Holbrookia lacerata) as endangered or threatened under the Endangered Species Act of 1973, as amended (Act), and to designate critical habitat. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing this species 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 spot-tailed earless lizard is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding the spot-tailed earless lizard, including its two subspecies (Holbrookia lacerata lacerata and Holbrookia lacerata subcaudalis). 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.

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The spot-tailed earless lizard is found in a variety of habitats, but typically they use habitat with sparse vegetation or bare ground (Axtell 1968, p. 56.1). Spot-tailed earless lizards inhabit flat and open prairies or meadows, sand dunes, chaparral-shrubland, mixed woodland areas, and graded roads in Texas (Axtell 1968, p. 56.1; TPWD 2005b, p. 1093), as well as the desert habitats of northern Mexico (Axtell 1968, p. 56.1). The lizard tends to burrow in soil, fallen logs, and other ground debris, and avoid obstructions, such as waterways, buildings, and pavement (Axtell 1968, p. 56.1).  In a petition dated January 13, 2010, Wild Earth Guardians requested that the spot-tailed earless lizard be listed as threatened or endangered and that critical habitat be designated under the Endangered Species Act. There is substantial information on the adverse effects of fire ants on native fauna in general, including reptiles, and substantial information that fire ants may pose a threat to the spot-tailed earless lizard through direct predation on adults, hatchlings, and eggs. In addition, there is substantial information that fire ants occur across a large part of the spottailed earless lizard’s range. Therefore, FWS found that the information provided in the petition, along with information readily available in FWS files, has presented substantial information indicating that the species may warrant listing due to predation, primarily by the fire ant. Image from WildEarth Guardians.

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76 Fed. Reg. 29108 (Thursday, May 19, 2011) / Rules and Regulations
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service
50 CFR Part 17  / Docket No. FWS–R8–ES–2009–0078; MO 99210–0–0009 / RIN 1018–AW53
Endangered and Threatened Wildlife and Plants; Final Revised Designation of Critical Habitat for Astragalus Jaegerianus (Lane Mountain Milk-Vetch)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating revised critical habitat for Astragalus jaegerianus (Lane Mountain milk-vetch) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 14,069 acres (ac) (5,693 hectares (ha)) of land in 2 units located in the Mojave Desert in San Bernardino County, California, fall within the boundaries of the revised critical habitat designation.

ESA in the news: WildEarth Guardians is (finally) letting FWS set (some) priorities, and worthy books and articles defend the ESA, but opposition still abundant.

05/14/2011

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Maybe, just maybe, there will be a bit less ESA litigation in the future, thanks to a new agreement by WildEarth Guardians to limit its lawsuits, in return for a commitment by the Obama Administration to address candidate species and petitions to list other species.  See news coverage from High Country News, Business Week and Miller-McCune.  ESA blawg has previously emphasized the need for the Department of Interior -- not litigious citizen activists -- to control its own priorities.  See discussions of "unintended consequences" (2008) and "bulk petitions" (2010).  But the Center for Biological Diversity, firmly opposed to listing delays, refused to sign the agreement. See AP article

Still, there will never be an ESA litigation shortage.  In the Pacific, NOAA recently authorized the lethal take of sea lions (protected by the Marine Mammal Protection Act) in an effort to save listed salmonid species.  See NOAA Fisheries.  And in the Gulf of Mexico, NOAA continues to learn about the effects of the Deepwater Horizon oil spill on wildlife  (seeScience Daily and  Houston Business Journal). The U.S. Fish and Wildlife Service has its share of issues too; and  individual issues all over the nation involving the Endangered Species Act are generating pushback.  See Wyoming's Daily Journal (discussing the gray wolf)  Martha's Vineyard News (discussing the listed Imperial Moth), and Business Week (discussing New Mexico's dunes sagebrush lizard and its effects on energy development -- a particularly tough issue that could lead to the next time Congress repeals a species listing by budgetary rider.)  In an issue of mutual concern to both FWS and NOAA, Indiana's Hoosier Ag Today discussed the opposition to duplicative pesticide regulation.

With mixed messages abundant, as usual, is it any wonder thatVermont Public Radio asks whether the ESA has worked?  Conservation biologist Joe Roman, in his book Listed (cover photo below), would answer with a resounding YES, and makes a compelling case about the economic and ecosystem benefits of the Endangered Species Act.  Still, despite his book, and despite similarly inspiring New York Times articles about endangered species from coast to coast, the naysayers will always remain.  After all, as Mother Jones recently wrote, homo sapien may be hard wired to reject science when it opposes our values and viewpoints.  Indeed, even opportunities for success, like reintroductions, prove controversial.  See Alaska NBC2 (discussing potential for reintroduction of wood bison) andSalt Lake Tribune (discussing the black footed ferret).

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Catching Up on Federal Register announcements: delisting wolves, withdrawing plover proposals, and revising leatherback critical habitat

05/13/2011

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76 Fed. Reg. 25590 (Thursday, May 5, 2011)
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Reissuance of Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife
SUMMARY: On April 15, 2011, President Obama signed the Department of Defense and Full-Year Appropriations Act, 2011. A section of that Appropriations Act directs the Secretary of the Interior to reissue within 60 days of enactment the final rule published on April 2, 2009, that identified the Northern Rocky Mountain population of gray wolf (Canis lupus) as a distinct population segment (DPS) and to revise the List of Endangered and Threatened Wildlife by removing most of the gray wolves in the DPS. This rule complies with that directive.

KEITHINKING: See prior ESA blawg and additional coverage and commentary in New York Times, the Outdoor Wire, and theChristian Science Monitor.
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76 Fed. Reg. 27756 (Thursday, May 12, 2011)
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To List the Mountain Plover as Threatened
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our decision to withdraw the proposed listing of the mountain plover (Charadrius montanus) as a threatened species under the authority of the Endangered Species Act of 1973, as amended (Act). After a thorough review of all available scientific and commercial information, we have determined that the species is not endangered or threatened throughout all or a significant portion of its range. We make this determination because threats to the species as identified in the proposed rule are not as significant as earlier believed and currently 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.

EXCERPT: In the past, we were concerned that mountain plover life span was short compared to other plovers and that this, in combination with high breeding site fidelity, presented a threat to breeding populations. Contrary to our previous belief, the mountain plover is now considered a relatively long-lived species. Site fidelity and ability to seek out alternative sites for breeding does not appear to be a concern. Based on new information regarding life span, site fidelity, and dispersal, we no longer believe that these aspects of the mountain plover’s life history represent any threat to the species. Lastly, recent information confirms that some mountain plover are exposed to pesticides, but no evidence of impacts to individuals, local populations, or rangewide impacts to the species have been demonstrated.
   The current status of the mountain plover does not suggest that future habitat changes, or the combination of climate change and habitat changes will result in significant population-level impacts in the foreseeable future. Their geographically widespread breeding and wintering locations, and ability to use a variety of habitats, contribute to their security. During breeding, they utilize short- and mixed-grass prairie, prairie dog colonies, agricultural lands, and semi-desert (Dinsmore 2003, pp. 14–17). The variety of habitats in which they successfully breed suggests that threats affecting one habitat type would not greatly increase the mountain plover’s vulnerability to extinction. Mountain plover have proven to be adaptable to many human activities, such as using crop fields for breeding and wintering, and benefitting from some cattle grazing practices. Over time, the extent of wintering habitat in California is likely to decline, but wintering mountain plover exploit a variety of grassland, rangeland, crop fields, and semi-desert landscapes from the Gulf Coast to the Pacific Ocean. We conclude that any foreseeable future declines in wintering habitat, in California or elsewhere, are unlikely to imperil the mountain plover.
   We estimate the current rangewide mountain plover breeding population to be over 20,000 birds. This is more than double the estimate of 8,000 to 10,000 mountain plover that we cited in our December 5, 2002, proposal to list the mountain plover as a threatened species (67 FR 72396). While we have no evidence that an actual population increase has occurred, a larger known population provides added security from current and future potential influences and threats.


***

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76 Fed. Reg. 25660 (Thursday, May 5, 2011)
DEPARTMENT OF COMMERCE National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA),
Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to Revise Critical Habitat for the Endangered Leatherback Sea Turtle Under the Endangered Species Act
SUMMARY: We, NMFS, announce a 90-day finding on a petition to revise critical habitat for the endangered leatherback sea turtle under the Endangered Species Act (ESA). We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted for leatherback sea turtles and their habitat under our jurisdiction.

KEITHINKING: for the Sierra Club petition to revise critical habitat, click here, and for the prior NOAA report, click here.     But don't miss Emily Brand's law review article wondering whether the critical habitat designation of open ocean is worthwhile, and the NOAA World article (and source of the photo above) discussing Leatherback conservation efforts across the Pacific.

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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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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