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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.

New approach to Northern Spotted Owl critical habitat designations invites litigation risk, but may also gain judicial deference

02/28/2012

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Earlier today, President Obama issued a new memorandum entitled: Proposed Revised Habitat for the Spotted Owl: Minimizing Regulatory Burdens.  The document sets forth the public process and criteria to be used in revising the designated critical habitat for the threatened owl species. See also, Department of Interior announcement.

As the memorandum admits, the administration is being responsive to the litigation realities of the Endangered Species Act.  While protection of the Northern Spotted Owl will remain an essential aspect of any future decision -- as it must -- the memorandum also acknowledges two other important policy considerations: (1) "pragmatism" (or, in other words, "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice") and also (2) "approaches that maximize net benefits."  This policy approach seems fully consistent with the Endangered Species Act. After all, in the arena of critical habitat designations, the ESA explicitly allows for economic considerations. "The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat..." 16 U.S.C. 1533(b).  Nevertheless, the federal official who decides to consider economic impacts, to respect flexibility, or to achieve net benefits will face an adversarial process where courts remain empowered to reverse those decisions.

Indeed, the memorandum practically invites those legal challenges. For example, it suggests that the benefits of excluding private and State lands may be greater than the benefits of including those areas in critical habitat. While this approach could quickly eliminate much of the opposition to critical habitat designations, preservation minded environmental advocates would surely disagree with a wholesale exclusion of private lands. Other preservationists will disagree with the memorandum's embrace of active management and logging as a path to ecosystem diversity and forest resilience. And animal rights advocates will cringe at the notion of experimental removal of barred owls, using "both lethal and non-lethal" means, in an effort to reduce the inter-species competition. See U.S. Fish & Wildlife Service Fact Sheet.  Anyone doubting the inevitability of future litigation should read today's headline from Science Insider: "U.S. Proposes to Save Spotted Owl With Chainsaws and Shotguns."

Still, the proposal offers new thinking, and may yield substantial benefits. If nothing else, the final rule will be well-vetted by a public process, and the reasoning behind the ultimate decisions reached by the U.S. Fish & Wildlife Service will be fully transparent.  As a result, the judge (or judges) who review the future legal challenges may be more likely to give deference to the agency.  For an agency besieged by litigation anyway, a new approach is warranted. And, in the end, the final rule might even benefit the Northern Spotted Owl, too.

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As explained by Smithsonian Magazine, "an epic battle between environmentalists and loggers left much of the spotted owl's habitat protected. Now the celebrity species faces a new threat — a tougher owl." Image of Northern Spotted Owl, above, from Wikipedia.  Image of barred owl, below, from Wikipedia

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Keith W. Rizzardi, teaches administrative law at St. Thomas University, serves as Special Counsel to Jones Foster Johnston & Stubbs, P.A., and "tweets" about the Endangered Species Act @ESAlawyer.

Reorganize NOAA, but not everything else?

02/21/2012

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The Obama Administration continues to explore the potential for moving the National Oceanic and Atmospheric Administration (NOAA) into the U.S. Department of the Interior. (n1) But real reorganization of our national environmental governance structure necessitates a consolidated U.S. Department of the Environment.

The President's merger proposal has its limitations. Preserving NOAA's scientific integrity and budgetary adequacy remain prominent concerns, (n2) and due to the looming opposition of Federal employee unions, and a partisan Congress, the proposal faces rough political waters. (n3) But it gets us thinking, too. Stepping back from the immediacy of the who-gets-and-who-loses math of Washington politics, an alternative perspective can be discovered.

In truth, the proposal is not ambitious enough. President Obama -- and everyone else -- wants a federal government that can better compete in the 21st century economy. (n4) Efficiency matters. So why just reorganize NOAA? A meaningful reorganization of environmental governance would not limit itself to only the two agencies implementing the Endangered Species Act.

Instead, we should consider creating a U.S. Department of the Environment. Stop splitting environmental and natural resources responsibilities all over the federal government, and start lumping them together. Begin by restructuring the Department of the Interior, and add the Environmental Protection Agency (EPA). OK, toss in NOAA. Boot the Army Corps out of wetlands regulation. Cut the Forest Service and Natural Resources Conservation Service from the Department of Agriculture. Transform the Department of Energy and the Tennessee Valley Authority. With all these entities consolidated, interagency conflicts would reduce. Eliminating expensive leadership and Senior Executive Service positions could achieve additional savings. Regional and field offices from multiple agencies could merge, saving on rent and facilities expenses.

 
Environmental advocates fear the potential short-term adverse effects of reorganizing, yet refusing to do so might be worse. NOAA (and other agencies) are already going through the early pains of adapting to a shrinking budget. Agencies are carefully thinking about their "core missions" and setting strategic priorities. As a result, some programs will be downsized or defunded. Regional offices will close. Staff will shrink. (n5) Moreover, if our nation plans to tackle its budgetary crisis, then the pain will soon get worse. In other words, the current path leads to death by a thousand cuts.

In contrast, a thoughtful reorganization of our environmental agencies could result in well-defined subsidiary organizations of greater stature, better equipped to deal with overlapping issues on an ecosystem scale. The Cabinet Secretary who presided over the new Department of Environment would command great respect from Congress, industry and stakeholders. From a raw politics perspective, the effort might also eliminate two common political targets, the Department of Energy and EPA, which would become parts of a greater whole. Our national environmental programs and functions could be rearranged along meaningful lines; just imagine: the National Lands Service, the National Oceans Service and the National Weather and Climate Service; the National Science Service, the National Environmental Regulatory Service, and the National Environmental Enforcement Service. Maybe even an Office of Environmental Partnerships, too.

Sadly, in the current political climate, this kind of rewriting of the American bureaucratic org-chart to consolidate environmental entities probably cannot happen. The status quo is powerful. (n6) Yet this is not a novel idea. In 2009, the U.S. Government Accountability Office evaluated the potential to move the U.S. Forest Service into the Department of the Interior. (n7) Countless intellectuals have envisioned alternative ways to organize or streamline our government. (n8) And there are international models for consolidation, too. (n9)

But in the United States, our Department of the Interior has accurately called itself the Department of Everything Else. (n10) A debate over adding NOAA to "everything else" involves incremental change, at best; creating a new era of environmental governance for the next century requires much bigger thinking. 


Maybe one day our nation will give sustainable environmental management and protection the comprehensive approach that it deserves.

Keith W. Rizzardi is a law professor at St. Thomas University, Chair of the Marine Fisheries Advisory Committee, and Special Counsel to Jones Foster Johnston & Stubbs, P.A.
Follow his "Keithinking" about the Endangered Species Act @ESAlawyer

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NOTES:
(1) Government Executive.
(2) ESA blawg, but see also, National Marine Sanctuary Foundation and Natural Resources Defense Council.  
(3) Washington Post, and Red Lodge.
(4) The Hill
(5) Compare proposals: NOAA 2013 Budget Statement and EPA budget cuts; AP wire story says GOP wants deeper cuts.
(6) See Washington Post.
(7) See, Observations on a Possible Move of the Forest Service into the Department of the Interior GAO-09-223 (Feb 24, 2009)
(8) See, e.g. Congressional Research Service(discussing historic efforts); Charles Woods (reorganizing the Federal Government for WWII); Creating a Government That Works Better & Costs Less; the US Ocean Commission and the Pew Oceans Commission (advocating an Oceans entity) and Chris Joyner (rethinking international environmental organizations).
(9) Compare Environment Canada (Air, Climate Change, Enforcement, Environmental Emergencies, Nature, Pollution and Waste, Science and Technology, Sustainable Development, Water, Weather and Meteorology) and Natural Resources Canada (Earth Science, Energy, Forests, Minerals, Metals).
(10) Department of Everything Else

Wolves, Altantic Sturgeon & more from @ESAlawyer (Jan-Feb 2012)

02/11/2012

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Get your Endangered Species Act announcements sooner on Twitter @ ESAlawyer

COURT CASES & LAWYERLY LINKS

Maine: court says suit re: salmon take continues vs. dam operators bit.ly/yfUPsm

DDC court rejects special National Fire Plan Sec. 7 consultation regulations: no proof of need, current process works bit.ly/wWGZi2

Scholars: Craig, disaster, ecosystem resilience & inadequate remedy 2011 BYU L.Rev 1863; Lloyd, Citizen Suits & Defense ST038 ALI-ABA 627

2012 WL 278712: LandWatch, NPC in Ore sues FWS for approving Eugene to Veneta water supply pipeline; harm to listed plants, butterflies

ALJ says Farmton Local Plan, Volusia County, improves black bear protection consistent with law, prevents listing. 2012 WL 256233 (Fla.DOAH)

Earthjustice sues NMFS over approval of Navy sonar training in Pacific waters. b.globe.com/zb8Ppv

New lawsuit sprouting on loss of marbled murrelet habitat due to Oregon old growth logging bit.ly/zl9y3s

Court ok w/Alaskan fishing limits for Stellers sea lion bit.ly/xVtDJK PacNW chinook salmon limits coming soon bit.ly/wf9UG3

Recovery: Can ESA Go Beyond Mere Salvage? 42 Envtl. L. Rep. News & Analysis 10017; Salmon: Dam Preservation Under the ESA, 41 Envtl. L. 1363

FISH & WILDLIFE SERVICE

FWS: SuppDraft EIS for Tehachapi Upland MultiSpecies HCP 1.usa.gov/zZ4f9c The plan for condors at Tejon Ranch, CA 1.usa.gov/wdo5cB

FWS may list San Bernardino flying squirrel b/c feral cats & climate change (lost conifer & black-oak forest habitat) 1.usa.gov/zffnSS

FWS: Polar bear interim rule reissued, NEPA ongoing. No ESA take violation if complying with CITES & MMPA. 1.usa.gov/ApSydq

FWS says listing Hawaiian 'i'iwi may be warranted due to habitat loss, nonnative animals, avian disease, climate change 1.usa.gov/yaGAH9

NOAA FISHERIES/ NMFS

More Atlantic sturgeon: NOAA says Gulf of Maine DPS threatened, New York Bight & Chesapeake Bay DPSs endangered 1.usa.gov/zf9P0N

NOAA says habitat, dams, dredging, H2o quality endanger Carolina, So. Atlantic distinct population segments of sturgeon 1.usa.gov/wJFEqB

NMFS: 5-yr sei whale review underway. 1.usa.gov/xOTMr9 Consultation on incidental take for geophys survey, too. 1.usa.gov/x5k4Jo

NOAA revises leatherback sea turtle critical habitat in Pacific. 41914 sq.mi, 262 ft deep. Focus on jellyfish prey. 1.usa.gov/AqSdHW

MUSINGS & NEWS

On animal cruelty: new egg farming n.pr/xrYjtT leg hold trapping bit.ly/zH8M2W movie molds wolf image bit.ly/y7lkBQ

Choice of safety or species? Cal. Dept. Fish & Game sues U.S. Army Corps over post-Katrina tree ban on levees bit.ly/zSKqkn

Why the ESA? So we protect wildlife & learn stuff like this: fluid dynamics of shark skin denticles add thrust. bit.ly/xdNzJc

Big thought: will we find new life forms in subglacial lakes not touched in 25 million years? bit.ly/wiwq1S

Listing Mazama pocket gopher may affect urban density in WA bit.ly/wf6Hh1 Mixed review of prairie dog management bit.ly/x0mXhx

Cape Hatteras ORV rule protects seabirds bit.ly/wTGEOU La. state law limits enforcing shrimp net turtle device bit.ly/zs6D0C

FEMA wildfire clean up still protecting Houston toad bit.ly/x2oWH2 Listed CA frogs vs trout stocking for anglers bit.ly/zf46Ns

6500 acres, 100 Miss. gopher frogs, 1 crusading landowner. NoLa & AP: bit.ly/we1zVS & bit.ly/w4AFeK & bit.ly/zyVtXY

ESA in Delaware: UDel plant database (lotsa rare flora) bit.ly/zN1L7H & endangered listing for Atlantic sturgeon bit.ly/wUBi30

ESA in Okla: leaders fear impact on energy industry & say voluntary efforts should avoid listing Lesser Prairie Chicken bit.ly/A3kJ9B

Need an American Red Cross for wildlife: Mil-Wis Journal on whooping cranes & threat of TX drought on recovery effort. bit.ly/wDqpqT

Can't win in Canada: ESA requires best available info, but scientist says dorsal fin satellite tags may harm orcas. bit.ly/yWgcjD

Another ESA conflict: trail closures upset dog-owning AZ hikers; land managers say dogs scare listed bighorn sheep mydesert.co/wUJ9xS

Sierra Sun summary on grizzly bear litigation bit.ly/zCTHpA Seattle Times on leatherback critical habitat bit.ly/ycja18

POLITICS

Santorum says ESA prevents timber harvest huff.to/ykLUnP and climate change a hoax bit.ly/zEhUQX

House Nat.Res. proposes oil drilling in 3% ANWR. bit.ly/xZaoD1 Polar bear debate coming. huff.to/A8vygd & dfnd.us/xABgOg

Markey (D-Mass) dislikes significant portion of range policy, says too high a threshold for endangered species. wapo.st/wPbbwm

Revealing op-ed on lobbying to ignore science. bit.ly/Aohe4w U.S. Senator says ESA reform not (yet?) in works. bit.ly/wjwa6x

WOLVES

Chicago Op-Ed bit.ly/xAMLWF

Wisc. Op-Ed bit.ly/yHBXy2

MN rancher opinion: hunt flawed bit.ly/xxwUxj

Wolf: NM suit to stop hunt bit.ly/whAkZ5

WY wants to start hunt n.pr/wBQWNu

Mich says delist=victory bit.ly/zb0LYG

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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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Twitterings

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