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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.

Merger of fisheries agency into Interior Department is no joke

01/22/2012

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The National Marine Fisheries Service (NMFS) manages and regulates the nation’s fisheries. International trade in fisheries contributes $70 billion annually to our nation's economy, so NMFS, in conjunction with other agencies, plays an important role in ensuring sustainability of our oceans. As President Obama lightheartedly explained in the 2011 State of the Union: "The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked."

It was more than just a laugh line. One year later, in January 2012, the President announced his plan to consolidate government and to merge NMFS (pronounced “Nymphs”) into the Department of Interior. See The Hill. But as President Truman once said, "the only thing new in the world is the history you don't know." So consider the history: in 1966, the Marine Resources and Engineering Development Act launched a new national program in marine science and ocean exploration. Related proposals to create a Department of Natural Resources failed, so the National Oceanic and Atmospheric Administration (NOAA) was eventually created within the Department of Commerce. NMFS, an entity within NOAA, also merged portions of the Department of Interior's Bureau of Sport Fisheries and Wildlife with the Department of Commerce's Environmental Science Services Administration. In other words, the recent merger proposal is a back to the future moment in federal natural resource management.

The proposal reveals a tension between efficiency and effectiveness. Efficiency concerns favor a merger of Interior and NMFS. Expensive leadership positions could be reduced, less interagency coordination will be needed, and some duplication of functions could be eliminated. Over time, a Department of Natural Resources might even become reality. One department could manage and regulate all our nation’s resources, from sea to shining sea, on subjects ranging from ocean energy to mountaintop mining.  Effectiveness, however, suggests that thoughtful caution is warranted, for three reasons.

First, the effort to reduce duplication could lead to a loss of niche expertise. Huge differences exist between managing mountains, forests, deserts, prairies, wetlands, estuaries, coral reefs and the oceans. Moreover, the White House is actively implementing the National Ocean Policy, seeking to transform our thinking about ocean management. These activities all require specialized expertise. And while the divide of expertise between Interior and NMFS can be frustrating, it also makes a degree of sense. Even in elementary earth science thinking, concepts divide between land, sea or air. If the Department of the Interior serves the land, then why merge NOAA into Interior? Why not a separate Department of Oceans and Atmosphere?

Next, the realities of regulatory independence must be acknowledged. No longer an independent agency within the Department of Commerce, a reorganized NMFS would share walls with governmental entities responsible for dams, mining, grazing and ocean energy. In other words, when NMFS exercises its regulatory authority, for example, by implementing the Endangered Species Act and saying “no” to an industry activity supported by another entity within the Department of Interior (think oceanic oil exploration), NMFS will confront the same difficult interdepartmental politics that already affect the Fish & Wildlife Service regulators. (This is a major concern to the Natural Resources Defense Council.) However, it is also true that regardless of who resolves those inter-agency tensions -- the Secretary of Interior, or the Council on Environmental Quality -- all of them serve the President and his policies.

Finally, and perhaps most significantly, budgetary politics must be considered. As an entity within the Department of Commerce, focused on a job-producing industry, NMFS maintains respectable funding, and high scientific standards, with a budget of roughly $1 billion in 2010. By comparison, even though Americans love our National Parks and endangered species, the National Park System and the Fish & Wildlife Service struggled to meet their mandates with annual budgets in 2010 of $2.7 billion and $1.6 billion, respectively. Would NMFS, when it appears before a whole new group of Congressional committees, as part of a $12 billion Department of Interior, still be able to compete with these other needs and priorities for its slice of the federal funding pie chart?

Perhaps all these concerns can be overcome, and the realities of our federal budget necessitate the merger of NMFS into the Department of Interior. But this dialogue over the structure of government will have lasting impact on our oceans, our fisheries, and our endangered and threatened aquatic species.

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Photo of threatened olive ridley sea turtles from the State of Alaska Department of Fish & Game. While the President told his 2011 State of the Union joke about the management of endangered salmon, it becomes more accurate if told about sea turtles: "FWS manages turtles on land. NMFS manages them at sea. Imagine how hard it is to make soup?"
___

Keith W. Rizzardi chairs the Marine Fisheries Advisory Committee, teaches environmental law at St. Thomas University School of Law in Miami Gardens, and writes about the Endangered Species Act on Twitter @ESAlawyer

January's #ESAlawyer content re: Endangered Species Act

01/21/2012

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TWEETS FROM #ESAlawyer (Jan. 2012)

Case law:

20 Jan. Complex Casitas case involves ESA, public trust & Cal. H2o law. bit.ly/wZ32i9 Fish don't really need water, do they?

U.S. Fish & Wildlife Service

21 Jan. FWS lists 3 pythons, 1 anaconda as invasive species. http://1.usa.gov/xURGdK Maybe they'll stop eating the endangered Key Largo woodrats now?

21 Jan. "Endangered everything" not an option, so FWS offers National Fish, Wildlife, and Plants Climate Adaptation Strategy 1.usa.gov/zZXsVB

20 Jan. FWS reopens comment on 1.9 acres of critical habitat for endangered Chupadera Springsnail in Socorro County, New Mexico 1.usa.gov/zimkOI

19 Jan. it's official! FWS announces establishment of Everglades Headwaters National Wildlife Refuge and Conservation Area. 1.usa.gov/y2jhty

19 Jan. FWS: Recovery Plan for Hawaiian Waterbirds 1.usa.gov/wv1xr9

17 Jan. Lesson in predation: exotic pythons eat endangered wood rats. Will new "injurious species" announcement help? bit.ly/yi7kpO

17 Jan. Citing peer review opinion divide, FWS seeks comment re: proposed Mississippi gopher frog critical habitat 77 FR 2254 1.usa.gov/w7QhuY

15 Jan. Due to taxonomy changes, FWS seeks comment re: Pac.Coast population of western snowy plover crit.habitat 77 FR 2243 1.usa.gov/wsCTGV

13 Jan. Shiloh IV Wind Project proposes Habitat Conservation Plan for Cal. tiger salamander: 77 FR 1498 1.usa.gov/AtyERv & 1.usa.gov/wh0JwB

13 Jan. FWS may list humbolt marten (a West coast weasel) due to timber&fire, disease, habitat mngt & at-risk small populations 1.usa.gov/wCYR77

12 Jan. San Diego County Water Authority signs multiple species conservation plan to ease ESA permitting for 63 covered species bit.ly/xbi5LS

NOAA Fisheries

13 Jan. Species vs. National Security: NOAA on taking marine mammals incidental to U.S. Navy sonar operations 77 FR 842 see
1.usa.gov/wORyVO

12 Jan. NOAA: are beluga whale populations crashing? bit.ly/yE2wMl Is Right Whale Ship Strike Reduction Rule working? 1.usa.gov/AyucPF

12 Jan. NOAA announces recovery plan for Cal. Steelhead DPS 1.usa.gov/wLa8Qh Final plan online soon, draft plan at 1.usa.gov/ywtUAu

11 Jan. NOAA says no to delisting So.Ore./No.Cal. Evolutionarily Signif. Unit of coho salmon b/s insufficiently specific data 1.usa.gov/xoBeBP

Musings & More

19 Jan. Extirpation, maybe even mass extinction; fungus killed up to 6.7M bats, reports USA Today usat.ly/xQXO54

15 Jan. Not just a joke: Will NOAA join FWS? bit.ly/AoLVtz Capitol hill unsure. bit.ly/wrdfBZ NRDC opposed. bit.ly/A9ucpi

14 Jan. Relentlessly unsatisfied critics give Obama C- on animal welfare. huff.to/y16df7 Maybe they'd prefer Ron Paul? bit.ly/wmoJ0R

14 Jan. Western states petition for ESA reform bit.ly/xneo8a could succeed with this House of Representatives bit.ly/ABu5Bv

14 Jan. International aspects of ESA: monkey meat nyti.ms/wGbYft and elephant ivory bit.ly/AfWFkY

14 Jan. Hi readers. My career & ESAblawg.com remain in transition. Tweet renamed: @ESAlawyer Visit Earthblawg.com at St.Thomas Univ.

Republican Presidential Candidates on species conservation and the Endangered Species Act...

01/21/2012

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Recent tweets from #ESAlawyer:

Gingrich: Environmental stewardship is everyone’s responsibility... Despite flaws...ESA is essential conservation tool bit.ly/yLAdSY

Huntsman: Conservation is conservative. I am not ashamed to be a conservationist. bit.ly/Avxl0c

Paul: I can't find endangered species written in the Constitution and I don't think that's a federal function. bit.ly/wmoJ0R

Perry: need federal-state partnership with landowners & more bit.ly/wIgLxj don't prioritize birds over people bit.ly/w4nDEt

Romney: Cost benefit analysis, lead time for corporate compliance, marketplace orientation mi.tt/yFnCTu

Santorum: ESA is poorly crafted legislation. http://bit.ly/xNYK37

ESA blawg is back... and then some.

01/21/2012

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Hi everyone, ESAblawg.com is back.

2011 was challenging; an abundance of Endangered Species Act announcements and litigation, plus my own professional chaos, led to a hiatus.  But 2012 comes with a new professional path, and a new plan for ESA blawg. First, my path: I'm now a law professor and Assistant Director of the LLM Program in Environmental Sustainability at St. Thomas University School of Law, in Miami Gardens, FL.  In addition, I was recently elected Chair of the Marine Fisheries Advisory Committee, and I am serving as a consultant on administrative and environmental law issues to Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, FL.  Given these many hats, I needed to make ESAblawg a bit more contained.  So I've got a three part plan.  

1. Microblogging.  "Routine" items related to the Endangered Species Act, such as Federal Register announcements and many U.S. District Court case references, will be published on Twitter at #ESAlawyer  

2.  Delegating.  Law students at St. Thomas University are now working on Earthblawg.com, which will become a useful resource, not just on the ESA, but on other wildlife laws too.

3.  Focusing.  On ESAblawg.com, I intend to publish more in-depth material and monthly musings on the pro's, con's and realities of the Endangered Species Act.

And now, back to work...

Thanks for reading, still.

Keith

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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Disclaimer

The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER