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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.

Two Ninth Circuit Opinions, Twenty Years of Litigation, and a Twinge of Deja Vu


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Two separate Ninth Circuit opinions, filed on the same day, offer important lessons for Endangered Species Act watchers. The first one reminded us that Congress can choose to repeal our environmental laws. The second one reminded us why Congress would make such a choice.

In Alliance for the Wild Rockies v. Salazar, the 9th Circuit upheld, as constitutional, Section 1713 of the 2011 Appropriations Act. That historic (or depending upon your perspective, infamous) provision ordered the Secretary of the Interior to remove some distinct population segments of gray wolves from the Endangered Species Act's protections. Attempting to reverse the Congressional decision, the environmental advocacy groups raised separation of powers concerns. In other words, they claimed that while the executive was implementing the issues, and the courts were adjudicating the issues, Congress could not interfere by forcing the court to rule a certain way. But Congress was no so daft. Instead, Section 1713 provides in its entirety as follows:

"Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010."

Reading this language, the 9th Circuit recognized that "Congress had changed the law, not told the Court that it should decide the case differently under the same law." Defeat of the separation of powers argument was predictable, based on Supreme Court precedent.  Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), considered and upheld the constitutionality of an appropriations provision that 'amended' or changed the applicable environmental laws. Still, even though this constitutional analysis was fairly predictable, Alliance for the Wild Rockies remains noteworthy for its explanation of the course of events that led to the decision:

"Over the last decade, the United States Fish and Wildlife Service (“FWS”) has repeatedly attempted to remove all or parts of the distinct population of gray wolves in the northern Rocky Mountains from the protections of the ESA. These efforts have been struck down by the courts for violating the ESA. See, e.g., Defenders of Wildlife v. Sec’y, U.S. Dep’t of Interior, 354 F. Supp. 2d 1156 (D. Or. 2005); Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008). In 2009, the agency issued what is known as the “2009 Rule,” 50 C.F.R. Part 17, 74 Fed. Reg. 15,123. It designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except those in Wyoming. The district court struck down the 2009 Rule as violating the ESA because the statute does not permit partial delisting of a distinct population segment. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).... Meanwhile, proponents of the 2009 Rule began exploring ways to delist the gray wolves through legislation. These efforts culminated in Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which the President signed into law on April 15, 2011. Pub. L. 112-10, 125 Stat. 38 (2011). Section 1713 orders the Secretary of the Interior to reissue the 2009 Rule without regard to the ESA and without judicial review."

These eight sentences, summarizing ten years of litigation, hint at the pent up frustration that led to the delisting of an iconic species. Regardless of whether the litigants and jurists were right or wrong, the simple fact was that they repeatedly stymied the executive branch from implementing its policy desires. Congress then made sure that its voice was heard in the process, reforming the implementation of the ESA.

The facts of a contemporaneous Ninth Circuit ruling in Turtle Island Restoration Network v. Department of Commerce seem hauntingly familiar.  The effects of the Western Pacific Fishery on sea turtles has been the subject of extensive regulation, and litigation, for a decade -- just like the wolf. See, e.g. Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 940 (9th Cir. 2006). In a Final Rule published in 2009, amended in 2010, and passed after substantial process by and input from the Western Pacific Fishery Management Council, the National Marine Fisheries Service modified applicable Fishery regulations, seeking to optimize the Fishery’s yield without jeopardizing the continued existence of sea turtle species. But after yet another round of litigation with the environmental advocates, the federal defendants' settled the dispute. Over the objections of the longline fishery advocates, the Consent Decree ordered by the U.S. District Court vacated portions of the Final Rule, reinstated lower incidental loggerhead turtle take limits from a 2004 biological opinion, and ordered NMFS to promulgate a new regulation. See 76 Fed. Reg. 13,298 (March 11, 2011)(announcement complying with court order.) As the Ninth Circuit explained, "the practical effect of the district court’s order is not to affect the Final Rule... except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits."  Or as it explained again, later in the opinion, "the Consent Decree merely temporarily restores the status quo ante pending new agency action and does not promulgate a new substantive rule."

The Ninth Circuit's analysis may be entirely correct, and the Consent Decree, as agreed upon by the federal defendants and the environmental advocates, might be entirely reasonable. But as the longliners argued, the Consent Decree nullified the prior process. Using the Endangered Species Act, the Turtle Island Restoration Network successfully reversed the outcome of the multi-party rulemaking before the fishery management council. Moreover, that is precisely what the ESA intends to do; to serve as last resort for desperate species. So, rejecting the procedural concerns of the longliners, the Ninth Circuit emphasized its preference for empowering the courts to allow parties to settle. Congress and the longliners, however, might view the facts differently, emphasizing the need for  the reasonable policy outcomes of rulemaking to be retained. Will we be reading another decision, a few years from now, about an appropriations provision that reverses Turtle Island, and that reinstates the 2009 Final Rule?

History could easily repeat itself -- or at least echo.

Longline fishing for swordfish is called shallow-set fishing because the bait is set at depths of 30 to 90 meters.  Inevitably, the fishery will interact with sea turtles, and  entangle them in the fishing nets and gear. Closing turtle-rich waters to American fishermen, however, is a poor solution, because other nations continue longline operations without the use of turtle-friendly gear. With an eye towards international advocacy of best fishing practices, NOAA worked with fishermen, gear specialists and academic partners to develop new longline fishing practices. In 2004, to reduce incidental take of sea turtles, new regulations for the longline shallow-set fishery mandated the use of large circle hooks, the use of mackerel-type bait, a limit of 2120 shallow-sets per year, annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and 100% observer coverage on every swordfish-vessel fishing. Those rules were amended in 2009 by removing the set limit and increasing the allowable loggerhead interaction hard cap from 17 to 46. On March 14, 2012, the 9th circuit upheld a U.S. District Court order  and Consent Decree vacating that 2009 rule. (Photo from NOAA, caption info from Ninth Circuit's Turtle Island opinion.)


Keith W. Rizzardi, a Florida lawyer, teaches at St. Thomas University in Miami Gardens, practices law at Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, and tracks the Endangered Species Act on twitter @ESAlawyer.

House Oversight Hearings: merely theater, or a preview of Endangered Species Act reform?


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Yesterday, a House Natural Resources Subcommittee held an oversight hearing on the 2013 budgets proposed by the National Oceanic & Atmospheric Agency and U.S. Fish & Wildlife Service. Understandably, some members of Congress were unhappy with requests for an increase in funding compared to prior years. “After examining these budgets, it is clear that none of them reflect the reality of our current economic situation… they are frankly not serious documents,” said Subcommittee Chairman John Fleming (R-LA). But the hearing turned upon the Endangered Species Act, and Natural Resources Chairman Doc Hastings’ (R-WA) voiced frustration with increased spending on ESA implementation and litigation:

“As our nation faces a $15.5 trillion debt that grows by over $4 billion every day, the two agencies appearing today are responsible for managing national fish and wildlife and marine resources and are requesting a combined total of over $200 million more than together they received last year -- including for more Endangered Species Act (ESA) listings and regulations. Regrettably, the sizable portion of these agencies’ budgets that already goes to managing endangered species programs focuses less on prioritizing and recovering species than on paying costly attorneys’ fees, avoiding and defending procedural lawsuits, meeting court deadlines, and responding to court orders stemming from the agencies’ own poorly drafted rules and regulations.”

In truth, ESA related spending is a tiny fraction of the federal budget; less than 2 percent of all federal funds are spent on conservation. As U.S. Fish & Wildlife Service Director Dan Ashe explained in his written comments: “The budget includes $179.7 million to administer the Endangered Species Act, an increase of $3.7 million when compared with the 2012 enacted level. This includes a $1.5 million increase for renewable energy consultation, $1.0 million for science for pesticide consultation, and $400,000 for cooperative recovery of endangered species on wildlife refuges and in surrounding ecosystems.” (The written comments offered by NOAA Administrator Jane Lubchenko contain no mention of the ESA. Instead, NOAA’s request focused on the need for satellite services to support weather, climate and coastal science.)

Given their power over the federal purse, the Congressional members' concerns with $197 million are justified, but the suggestion that the agencies are the problem is unfair. The agencies are simply doing what the law (and courts) require them to do. The Endangered Species Act sets rigid deadlines for review of every petition to list a species. Eventually, if the petitions are not acted on, litigation follows. And upon review, the courts have no choice but to order the agencies to follow the law that Congress passed, and to order compliance with the deadlines in the ESA. For better and for worse, the recent settlements with WildEarth Guardians and the Center for Biological Diversity, and the accompanying costs, simply reflect the realities of the statutory scheme. (See FWS) And over time, the result of this proces (as a map cited by Rep. Hastings colorfully suggests) is an increase of listed species in each state.

Map from the House Natural Resources Committee webpage

Sooner or later, the Congressional frustration will lead to reform. The risk, however, is reform that goes too far... and that would truly be a waste. The Congressional findings that supported the Endangered Species Act in 1973 are just as valid today.  As Congress found and declared, four decades ago: "(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). Given these findings, the ESA was intended "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. §1531(b).  But the worthy ambition to save, protect and recover species creates substantive and procedural problems, too.

In substance, the policy choices in the ESA create what the Congressional Research Service calls conflicting values. In other words, the ESA forces humans to forego their ambitions and desires to benefit other species. While it may be easy for a crusading urban environmentalist to demand a sacrifice, the pain is felt more acutely by the rural farmer whose access to water is denied. So one of the fundamental problems with the Endangered Species Act, one that arises again and again, is a fundamental disagreement over whether, and to what extent, humans should sacrifice to protect other species. Ted Williams of Audubon Magazine passionately believes that all species have inherent value deserving of protection; but other humans disagree, including the Pacific Legal Foundation.  To reconcile the conflicting values, and especially the tension between preservation and property rights, ESA reform must include -- gasp! -- compromise. We humans may have "dominion" over the Earth, but the governance of a ruler cannot and should not be a path to self-destruction. Humans must serve as stewards of our planet. See, e,g. Mere Environmentalism.

The process created by the ESA to achieve that stewardship is also burdensome, and like humanity, imperfect. Listing determinations, critical habitat designations, consultations, permits, litigation, attorney's fees, enforcement and compliance: these activities demand substantial human and financial resources. And the burdens of providing these resources fall upon industries, landowners and taxpayers who are then motivated to oppose the ESA's goals. In fact, many actions by the environmentalists to obtain protections for an imperiled species simply trigger new outrage from other people who endure the additional burdens and who do not appreciate the value of the species (or maybe even its ecosystem). See, e.g. Klamath Bucket Brigade.  Furthermore, the lawsuits filed by environmental advocates fail to serve as a procedural tool for shaping values. While they might achieve the short term goal, the long-term conflict remains. The values conflict becomes even more entrenched.

Compounding the substantive and procedural difficulties of ESA implementation is the reality of uncertainty. The ESA's reliance upon the ambiguous "best scientific and commercial data available" concept is intentional, but such flexibility comes at a price. Every decision can be second-guessed. To manage biological diversity IS to manage uncertainty. There is no single right answer; indeed, the ESA itself refers to the agency's most significant management document as a "biological opinion." For our interactive and human-dominated planet, there is no absolute biological answer.  In a radically changing world of climate change and exotic species invasions, not every species can be saved. Death and extinction is the only certainty, and the Sixth Wave is underway. As these inevitable changes have their effects, more and more species will need to be listed for protection, and the ESA conflicts will grow with impossible intensity. In that not-so-distant future, reform of the ESA seems a far better outcome than repeal.

Previously, ESAblawg suggested a three part plan for ESA reform. First, Congress could create a process that enables the U.S. Fish & Wildlife Service, and 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.". Second, 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) and ESA blawg (discussing settlement disincentives). Third, if Congress is going to allow species to go extinct, it could be more honest about that choice, streamline the process, and again, specify criteria. Delisting decisions would then allow the agencies to divert their limited funds from one hopeless species to another species that might survive.  See ESA blawg (discussing triage).

Sadly, empowering the government to make the terrible decision to allow a species to go extinct creates equally intolerable risks. Any attempt at ESA reform must include some mechanism allowing for checks and balances upon abuses of executive power. That point was demonstrated by Ms. Julie MacDonald, a former Department of Interior senior official during the Bush administration who abused her authority and pressured scientists to change their opinions to conform with her politically-preferred outcomes. See ESA blawg on "the Big Mac attack." As the Department of Interior's own Inspector General concluded, the federal official charged with supervising ESA implementation had violated her basic obligations of public service. See, Report of Investigation, Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (posted by the Center for Biological Diversity here)

The internet contains many proposals to reform the Endangered Species Act. Many proposals are, as expected, from the affected interest groups: the National Endangered Species Act Reform Coalition (NESARC); the American Enterprise Institute; land and livestock producers. On the other hand, even the U.S. Fish & Wildlife Service has its own webpage dedicated to "improving ESA implementation". Nevertheless, Congressional reform of the ESA is already underway, using an incremental approach. The Natural Resources Defense Council Switchboard blog has worried about legislative maneuvers to evade ESA application to salmon, otters and more, and Congress has used budget riders to delist the wolf in some states. See ESA blawg.

Ultimately, the recent Congressional hearing might produce nothing but noisy political theater, but it also has the potential to generate large scale reform. For the moment, the environmental advocacy groups appear to be adhering to the status quo.  But five years ago, when Congress last considered ESA reform, one citizen wrote a letter to the High Country News with a prognostication: "I believe that blind opposition to any reasonable reform of the Endangered Species Act is eventually going to lead to unreasonable reform."  Sad, and probably true.

Endangered Species Act tweetings: shooting owls, rhinos, and mountain lions


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Top policy stories: The White House, grappling with ESA realities, announced a new focus on economics and Barred Owl control as part of the Northern Spotted Owl management efforts.  The process could invite litigation but gain judicial deference. And the other big regulatory initiative, the Administration’s proposed significant portion of the range policy, continues to face its critics. But implementation of controversial rules may be just the beginning of ESA reform. The Natural Resources Defense Council and others are increasingly concerned about Congressional actions affecting one species at a time, or one location at a time. And calls for wholesale Endangered Species Act reform continue, too, with a NJ editorial Beef USA and the House Natural Resources Committee chiming in. All the controversy proved too much for a senior Idaho official who resigned, tired of fights among friends as state authorized hunts killed 318 wolves Is Sen. Jackson's legacy in sheparding the ESA through Congress being undone?


ABCs (amusing, bizarre & criminal):Trafficking in rhino horns (photo above by USFWS from earns jail time, reports the Sac Bee A California official who shot a mountain lion is sued for ethics violations Shell Oil takes the offensive and sues the environmentalists first  Beware the snake killing fungus Unable to get permits, zoos giving up on keeping polar bears

Miscellaneous: The media does a poor job of covering science, says Joshua Gilder in U.S. News. ... So maybe all of this is wrong? Bay Delta Conservation Plan negotiations continue  N.D.Cal. litigation underway over ESA & pesticides Farmers try to get megasuit dismissed But North Dakota sent EPA its own plans for pesticides Mosaic Fertilizer in Fla. seeks amended Incidental Take Permit, covering scrub jay & indigo snake impact for 41 years. Hawaiians wary of NOAA re: turtles? Pebble Mine in rural Alaska could conflict with protection of valued fishery & sockeye lake, reports AP. FWS Federal Register announcements include taxonomic revision for the willowy monardella critical habitat for Riverside Fairy Shrimp 18 species enhancement permits more comment on Dunes Sagebrush Lizard and listing decisions for Spikedace, Loach Minnow freshwater mussels and Oregon spotted frog

 The content above comes from @ESAlawyer on Twitter.


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



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)


"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