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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.


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.


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.

9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity


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Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. §228.4(a) (2004).  

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.


SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes...  The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.

Federal Judge in D.C. defers to FWS 4(d) rule on threatened status of the polar bear


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In re: Polar Bear Endangered Species Act Listing and §4(d) Rule Litig., Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C., June 30, 2011).

BACKGROUND: Several lawsuits challenging the Fish and Wildlife Service's (the Service) 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA), and to issue a rule under Section 4(d), were consolidated into multi-district litigation in the D.D.C.  On June 30, the court granted summary judgment to the Service and upheld the listing against all challenges.  Plaintiff Center for Biological Diversity's (CBD) claims against the 4(d) rule are still pending.  The focus of the litigation was mainly on the distinction between the listing categories "threatened" and "endangered" and also on reliability of the state of climate change science when predicting the impacts of climate change on ice habitat of the polar bear.  Following are the court's holdings and analysis.

RULING: The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing.  Center for Biological Diversity (CBD), Natural Resources Defense Council, and Greenpeace (collectively, CBD) claimed that the Service wrongfully concluded that the polar bear did not qualify for endangered status as of 2008.  The Service had maintained that a species must be at "imminent risk" of extinction to qualify for endangered status, which it had not articulated in the 2008 listing rule, but had stated in a "Supplemental Explanation" required from previous remand.  The Service's view was that a species be "currently on the brink of extinction in the wild" and that this understanding was not intended to be narrow or inflexible, as the ultimate determination would depend "on the life history and ecology of the species, the nature of the threats, and the species' response to those threats."  The Supplemental Explanation also described four categories of situations that had been found to satisfy that test in the past and applied each concept to the facts in the polar bear record.  The court applied Chevron deference to the Supplemental Explanation and held that, as applied to the polar bear, the Service's definition of an endangered species represented a permissible construction of the ESA since "Congress did not seek to make any factor controlling when drawing the distinction [between threatened and endangered]" and that there is a "temporal element to the distinction between the categories."

Joint plaintiffs claimed that the polar bear should not have been considered threatened at the time of listing because the Service failed to demonstrate that the polar bear is sufficiently "likely" to become endangered, and the Service arbitrarily selected a 45-year time frame as the "foreseeable future" for the polar bear when a shorter time period would have been more appropriate.  Plaintiffs had argued that a demonstration of 67-90% likelihood was required to establish whether the polar bear would become an endangered species in the foreseeable future, since a large part of the Service's record had relied on Intergovernmental Panel on Climate Change (IPCC) reports that had coincidentally established meanings for the terms "likely" and "very likely."  The court rejected plaintiffs' argument here and stated that neither Congress nor the Service had adopted an official interpretation of "likely," and the Service was not bound to IPCC definitions simply because it had relied on other scientific portions of the IPCC reports.  Plaintiffs had also argued that the Service should have been limited to a shorter time period than the selected 45-year time frame due to the inability to foresee what future regulatory mechanisms may be in place.  The Service had selected 45 years because it again relied on the IPCC report that predicted warming (regardless of choice of emissions scenario) before the point at which projections diverge significantly.  The court upheld the 45-year time frame and emphasized that the ESA's listing provisions require the Services only to consider existing regulatory mechanisms.  In addition, the court noted that Congress and the Services have not yet defined the term "foreseeable future," that a bright line rule was not appropriate, and that the definition should be flexible depending on species and best available science.

RULING: The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualified As a "Distinct Population Segment."   Plaintiffs Center for Biological Diversity (CBD), Safari Club International and Safari Club International Foundation (SCI), and Conservation Force et al. (CF) claimed that the service wrongfully concluded that no polar bear population or ecoregion is "discrete."  The court upheld the Services determination regarding distinct population segments (DPSs) (since it followed formal policy for designating a DPS that had been promulgated through notice-and-comment rulemaking and upheld by prior courts) and found that the Service "articulated a reasonable basis for its conclusion that no polar bear population or ecoregion is meaningfully 'discrete' for the purposes of DPS designation: even if there are behavioral differences among polar bear population segments, polar bears are universally similar in one crucial respect - namely, their dependence on sea ice habitat and negative response to the loss of habitat."

RULING: The Service Did Not Arbitrarily Fail to Consider Other Listing Factors.  Joint plaintiffs also argued that the listing rule should be overturned because of deficiencies in the Service's analysis of several of the listing factors the ESA requires an agency to consider:  1)  that the service failed to "take into account" foreign conservation efforts to protect the polar bear;
2)  that the service failed to rely on the "best available science"; 3) that the service failed to consider whether the threat of overutilization warranted listing the polar bear as "endangered"; and 4) that the service wrongly concluded that existing regulatory mechanisms will not protect polar bears despite anticipated habitat losses.  The court found that FWS did articulate a rational basis for each specific listing determination and the agency explained how the categories apply in the context of the polar bear and the state of its science.  Notably, the court found instances in the record where the Service did take foreign conservation efforts into account, but those efforts concentrate mostly on overharvest and disturbance and would not be sufficient to offset ice loss, which is the primary threat to the polar bear's survival.  In terms of "best available science," plaintiffs argued that climate change predictions were uncertain, pointed to weaknesses in models and claimed that the Service used a partial dataset for the Southern Beaufort Sea polar bear population.  The court found that best available science is to be relied upon even if it is uncertain or even inconclusive and this merely prohibits the Services from disregarding available scientific evidence that is better than the evidence it relied upon.  Plaintiffs did not challenge the Service's models as best available science, but appeared to take the position that the Service should have drawn different conclusion from those models.

RULING: The Service Followed Proper Rulemaking Procedures.  Plaintiff State of Alaska had claimed that FWS failed to satisfy its obligation under Section 4(i) of the ESA to provide a “written justification” explaining why it issued a final rule that conflicts with comments it received from the State.  FWS had sent a lengthy letter to the State of Alaska in  response to its comments, which satisfied 4(i), even if Alaska “may have preferred a different or more detailed explanation.”  The court concluded that 4(i) requires only that FWS provide a “written justification for failure to adopt regulations consistent with the agency’s comments or petition,” a response which is procedural only.

EXCERPT: "As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science."

Federal Judge in D.C. says ESA dispute over EPA's FIFRA registration of Rozol will proceed


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Defenders of Wildlife v. Jackson, CV 09-1814, 2011 U.S. Dist. LEXIS 62461 (D.D.C., June 14, 2011).

BACKGROUND: The U.S. Environmental Protection Agency (EPA) registered Rozol under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) on May 13, 2009 and did not consult with FWS before approving its registration.  

ISSUE: Plaintiffs, Defenders of Wildlife (Defenders) and The Natural Resources Defense Council (NRDC), sought both declaratory and injunctive relief under the ESA and sought an order declaring that EPA’s FIFRA registration of Rozol was not in accordance with the ESA because the EPA had failed to consult with FWS.  More specifically, Defenders requested an order requiring EPA to engage in formal consultation prior to issuing the registration.  The NRDC requested an order requiring the EPA to engage in and complete formal consultation prior to registering Rozol.  The EPA had begun consultation with FWS on September 30, 2010 (a week after the suit was filed) and had argued that plaintiffs’ claims were therefore moot.  Plaintiffs had argued that EPA remains in violation of the ESA until it finishes consulting with FWS and the court could provide an effective remedy by vacating the registration and ordering the EPA not to register Rozol without completing consultation.  

RULING: The court found that Defender’s request was moot because EPA had already begun consulting.  NRDC’s request, however, was not moot because consultation had not yet been completed and therefore an effective remedy would be possible and appropriate: the cessation of the use of a deadly chemical that may jeopardize the continued survival of endangered species until the EPA complies with the mandates of the ESA.  

According to Audubon of Kansas, a participant in the litigation, Rozol is a Poison that Keeps on Killing.  "The most disturbing element of Rozol (chlorophacinone) use is its hazard of secondary poisoning for predators that eat the poisoned animals. Prairie dogs poisoned with Rozol die from internal bleeding. In one non-sanctioned poisoning in South Dakota investigators gathered several hundred of the animals that were continuing to die above ground for three weeks after application." Image available from Audubon of Kansas

Federal Judge in Louisiana says plaintiffs lacked standing to bring ESA claims in Deepwater Horizon case


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In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, MDL 2179, 2011 U.S. Dist. LEXIS 63642 (E.D. La., June 16, 2011).

This multidistrict litigation consists of hundreds of cases arising from the April 20, 2010 explosion, fire, and capsizing of the Deepwater Horizon drilling unit owned by defendant Transocean.  The court created several pleading bundles.  This particular bundle consists of claims for injunctive relief brought against private parties by thousands of individuals.  Among the many claims for injunctive relief was a claim for violations of the Endangered Species Act.  Transocean filed a motion to dismiss the ESA claim (among others) which was granted.  The court ruled that plaintiffs lacked standing to bring their ESA claim because injuries alleged would not be addressed by injunction.  First, no benefit would be achieved because the well was capped and there is no ongoing release.  In addition, the private companies along with agencies have been and are cleaning up the Gulf of Mexico and plaintiffs do not assert any deficiency in these ongoing remediation efforts.  Finally, the claim depended on the actions of actors that were not before the court.  The Defendants do not unilaterally direct cleanup activities in the Gulf, which are under the control of federal agencies.  In addition, the court found plaintiffs' claims to be moot, that the defendants were not currently "in violation" of the ESA, and that there is no ongoing violation.

Dr. Brian Stacy, NOAA veterinarian, cleans a young Kemp's ridley turtle.  Photo by NOAA/GADNR available from NOAA Fisheries Office of Protected Resources.

Federal Judge in Arizona says U.S. Forest Service actions for Mexican wolf, and work with FWS, fulfilled ESA demands


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Defenders of Wildlife et al. v. U.S. Fish and Wildlife Service. Wildearth Guardians et al. v. U.S. Fish and Wildlife et al., CV 08-280 TUC DCB, CV 08-820 PHX DCB, 2011 U.S. Dist. LEXIS 66000 (D. Ariz., June 13, 2011).

BACKGROUND: In 1982, the U.S. Fish and Wildlife (FWS) Service issued the Mexican Wolf Recovery Plan.  In 1998 FWS issued a final rule, pursuant to section 10(j) of the ESA, to reintroduce an experimental population of Mexican wolves into the Blue Range Wolf Recovery Area (BRWRA).  FWS oversaw the recovery plan and reintroduction program for the species without complaint until 2003 when it entered into a Memorandum of Understanding with a number of federal, state, local, and tribal entities, including defendant U.S. Forest Service, to create the Adaptive Management Oversight Committee.  On April 30, 2005, the AMOC issued a document entitled the Mexican Wolf Blue Range Reintroduction Project Adaptive Management Oversight Committee Standard Operating Procedure 13, which was challenged by plaintiffs, Guardians and Defenders, in these consolidated cases.  In addition to suing FWS, Guardians also sued the U.S. Forest Service (USFS) for failing to confer with FWS to carry out a program to conserve the Mexican gray wolf.  On December 2009, a consent decree was entered between Defenders and the FWS.  FWS had filed a motion to dismiss Guardians’ claim against it, which was granted, because the court found the Consent Decree to provide all of the relief that Guardians sought.  

Image by Arizona Department of Fish and Game from the Arizona Master Naturalist News Web Log.

ISSUE: With most issues resolved by the Consent Decree, the sole remaining claim in the case was between Guardians and the U.S. Forest Service.  The court considered 1) whether the USFS’s failure to develop and implement its own conservation program for the Mexican wolf is in violation of ESA §7(a)(1); and 2) whether the USFS’s support of the FWS’s Mexican wolf program has hindered the conservation of the subspecies.  The court denied Guardians’ motion for summary judgment because Guardians did not prove that USFS had totally failed to act to conserve the Mexican gray wolf.

RULING: 7(a)(1) requires equal, not agency-specific, responsibility.  The USFS had worked with the FWS to reintroduce the wolf to carry out the recovery plan and from the beginning, USFS participated in the reintroduction process, such as locating release pens, public information, and area management after reintroduction.  From the inception of the reintroduction program in 2008, USFS was an active participant in many ways which included serving alongside FWS as a member of various interagency management teams.  Guardians had argued that USFS did not independently develop its own agency-specific conservation program in accordance with 7(a)(1) and therefore this amounted to inaction.  The court looked to two cases, Pyramid Lake Tribe v. U.S. Dept. of the Navy, 898 F.2d 1410 (9th Cir. 1990) and Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), to reach its conclusion that 7(a)(1) does not require USFS to develop its own independent agency-specific conservation program, but that it has responsibility equal to that of the FWS to use its authorities in furtherance of the conservation of the Mexican gray wolf and has an affirmative duty to carry out a program for the conservation of the Mexican gray wolf.

RULING: The USFS’s Interagency Cooperation and 7(a)(2) Biological Assessments did not Hinder Conservation of the wolf. Guardians had complained that the USFS’s contributions did not add anything to wolf conservation and took no affirmative steps to work with FWS to address the root of the problem:   years of consistent prioritization of uninterrupted implementation of the USFS’s domestic livestock grazing program over the mandate for Mexican gray wolf reintroduction.  The record reflected that USFS had imposed allotment-specific wolf conservation measures to cover wolf/livestock conflicts and that USFS consulted with FWS before issuing grazing permits in the BRWRA.  Therefore, the court did not find total inaction or failure on the part of the USFS to act to conserve the Mexican gray wolf.

Federal Judge in Colorado requires FWS to take another look at Graham's penstemon


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Center for Native Ecosystems v. U.S. Fish and Wildlife Service, CV 08-cv-2744-WDM-BNB, 2011 U.S. Dist. LEXIS 61321 (D. Colo., June 9, 2011).

BACKGROUND: The Graham’s penstemon is an herbaceous perennial plant that occurs uniquely on exposed, raw shale knolls and slopes of western Colorado and eastern Utah with five core populations (four in Utah and one in Colorado).  Sixty percent of these plants occur on Bureau of Land Management (BLM) lands and, according to the BLM, the plant is in severe decline.  After recognizing in the proposed rule that the species had a “strong potential to become an endangered species in the foreseeable future if present threats increase and projected energy development scenarios occur,” and ignoring the advice of peer reviewers, the FWS failed to list the plant in their final rule.  

Image from the rare plants webpage by the Utah Native Plant Society

ISSUE:: Plaintiffs challenged the decision of the U.S. Fish and Wildlife Service (FWS) to withdraw the proposed listing of Graham’s penstemon as a threatened species under the ESA.  The plaintiffs asserted that 1) FWS failed to consider the combined impact of the identified threats to the plants; 2) FWS disregarded the best available information regarding the threat to the plant of oil and gas development, livestock grazing, and off-road vehicles (ORVs); and 3) FWS failed to demonstrate how claimed conservation measures to protect the plant were implemented and effective and improperly relied on future measures.  

RULING: The court granted plaintiffs’ petition for review of agency action.  First, the court failed to take judicial notice of the Pariette cactus listing – a plant occurring in the same area and subject to the same impacts as the penstemon.  Next, the court found that FWS did not consider the impact upon the species of all listing factors together.  FWS had addressed each of the five factors separately and in isolation, but the final rule was devoid of any discussion of the effect of combining two or more factors.  In addition, FWS did not consider best available scientific and commercial information because the rule did not adequately address concerns raised by the BLM, nor did it explain why the previously perceived threats of energy development, grazing, and ORV use had been significantly eliminated.  Plaintiffs had pointed to specific reports and available information from BLM scientists.  Furthermore, when making its listing determination, FWS had relied on the assumption that future draft conservation efforts would be effective when it was instead required to look at existing regulatory mechanisms.

Extinction rider averted, for now.


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While Congress may still bring on financial Armageddon, at least our legislators thought better of passing the "extinction rider."  Instead of ending the funding for the entire Endangered Species Act listing program (see prior ESA blawg), the New York Times today explained that Congress is now considering a piecemeal approach that defunds listings for the dunes sagebrush lizard or lesser prairie  chicken, and that defunds recovery efforts bighorn sheep and Mexican wolves in the Southwest.


Meanwhile, thanks to the many readers who send me case materials during June and July 2011 to help me stay abreast of the ESA happenings.  

Another appropriations rider marks another policy failure for the Endangered Species Act.


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First, they came for the wolf.  Then they came for the dunes sagebrush lizard.  Now they've come for everything else. Legislators are rewriting the Endangered Species Act, one budget bill at a time.

A few months ago, Congress delisted the wolf in an appropriations rider. Both ESA blawg and the New York Times warned that Pandora's box had been opened.  Recent Congressional actions proved those warnings correct.

In an appropriations rider, Congressman Mike Simpson, who Chairs the House Interior and Environment Subcommittee, proposed to cease funding for all new species listing activity.  While the wolf delisting and the dunes sagebrush lizard listing may or may not be scientifically defensible, this sweeping bill has nothing to do with science.  Instead, it is a potentially deadly blow to the scientific integrity of the ESA.  Regardless of the status of a species, or the scientific basis for a new endangered listing, no money can be spent on species listing.  The money is gone, so the species will be gone, too.

Once again, the finger pointing will follow.  Some people will blame the budget and the economy. Others will accuse the Republicans of raw power politics.  A few more will blame overzealous environmentalists who abused the ESA as a land use litigation tool.  All the accusations hold degrees of truth.  According to Congressman Jim Moran (D-Va), who unsuccessfully sought to amend the rider, Simpson does not necessarily oppose new listings, but the rider intended to provide an incentive for environmentalists and other pro-conservation stakeholders to agree to a reauthorization of the law.  "The only way I can think of to do it is to force the issue," Simpson said. "This is a shot across the bow...  The ESA has become so contentious, so political and so litigious that it has become a policy failure."

Defunding the ESA listing process in a budget bill, like the wolf delisting, is the lazy, thoughtless way out.  But ESA blawg is the "thoughtful" blog discussing the Endangered Species Act.  Recognizing that Congressional inaction on our budget leaves little choice other than triage -- choices between which species to fund, or not to fund -- ESA blawg will now commit environmental heresy, and suggest three controversial reforms of the ESA.  

     1.  Congress could create a process that enables the U.S. Fish & Wildlife Service, and the NOAA Fisheries, to set the order of species priorities, based on Congressionally established criteria, rather than litigating every listing petition that is filed by a concerned group. See ESA blawg (discussing "bulk petitions").  

     2. Congress could reform the citizen suit provisions of the ESA, along with perverse attorney's fee-shifting provisions that create incentives to sue the government. See ESA blawg (discussing fees litigation) andESA blawg (discussing settlement disincentives).  

     3. Finally, if Congress is going to allow species to go extinct, it could be more honest about that choice, and streamline the process.  Existing listed species could be delisted, by the God Squad or some other process, if progress is inadequate.  Honest delisting decisions would then allow the agencies to divert their limited funds from a hopeless species to other species that might survive.  See ESA blawg (discussing triage).
Admittedly, compared to the ideals of the ESA, these are horrible ideas.  Many people will absolutely reject them, and understandably so.  But these suggestions are certainly better than our current path.  America needs honest and transparent reform of the Endangered Species Act to rebuild Noah's ark.  Budget bills are not the way to debate and rewrite one of our nation's most powerful environmental laws.


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)


"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."


"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