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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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"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.

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BLM's consultation on fire management in Nevada upheld

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Western Watersheds Project v. Bureau of Land Management, 03:06-CV-00527-LRH-RAM, 2008 U.S. Dist. LEXIS 32299 (D. Nevada, April 18, 2008).

BACKGROUND:  The Elko District of the Bureau of Land Management (BLM) consists of 7.5 million acres of land administered by BLM.  BLM's management of public lands in the district is governed by two resource manage-ment plans ("RMPs"). The Elko RMP covers the western portion of the district, and the Wells RMP covers the eastern portion of the district. In 1998, the Elko District developed a Fire Management Plan (FMP) for the region, and developed a Fire Amendment to that FMP in 2003.  BLM concluded that its fire management activities could potentially affect listed species, and thus prepared a biological assessment (BA) and obtained a programmatic biological opinion from the U.S. Fish & Wildlife Service (FWS), pursuant to the Endangered Species Act.

OPINION: U.S. District Court Judge Larry R. Hicks held that the federal agencies complied with the ESA, finding, among other points, that (A) the delisting of the bald eagle had rendered some of Plaintiffs' claims moot, (B) an incidental take statement was not needed for a programmatic biological opinion because no take had yet been authorized, and would only be authorized in future site-specific biological opinions, and (C) the biological opinion was not, in itself, final agency action because a subsequent biological opinion had consummated the decision process.

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Photo of BLM fire management activities, from Elko Field Office fire management links

ADDITIONAL EXCERPTS:

An incidental take statement was not needed for a programmatic biological opinion...

In this case, BLM determined its fire management programs had the potential to affect species protected by ESA. As a result, BLM consulted with FWS. A biological assessment was prepared and it concluded the proposed action may affect several species, but that the proposed action is not likely to adversely affect any of those species....  the biological opinion further found that "[a]dverse effects are expected under the proposed action, primarily through fire suppression activities, burned area rehabilitation and stabilization treatments, and fuels treatments." ... The biological opinion explains as follows:
 
[T]he proposed action, by itself, is one of multiple steps in the FMP. The likelihood of incidental take, and the identification of reasonable and prudent measures and terms and conditions to minimize such take, will be addressed in project level, and possible programmatic level consultations. Any incidental take and measures to reduce such take cannot be effectively identified at the level of proposed action be-cause of uncertainty of wildland fire, broad geographic scope, and the lack of site specific information. Rather, incidental take and reasonable and prudent measures may be identified adequately through sub-sequent actions subject to section 7 consultations at the project and/or programmatic scale.

"In the context of this case, the court finds no error in the failure of FSA to issue an ITS. Similar to Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004), , the biological opinion in this case does not contemplate actual action. Because no action is taking place at this time, no "take" is occurring. The biological opinion explicitly states "[t]he likelihood of incidental take, and the identification of reasonable and prudent measures and terms and conditions to minimize such take, will be addressed in project level, and possible programmatic level consultations."  Thus, FSA will issue an ITS, if necessary, at the time a specific project is authorized. The court finds this approach reasonable in the context of this case. The biological opinion notes, "[a]ny incidental take and measures to reduce such take cannot be effectively identi-fied at the level of proposed action because of uncertainty of wildland fire, broad geographic scope, and the lack of site specific information." The court defers to the agency's informed decision that an ITS is not appropriate at this time due its inability to identify any incidental take. See Ranchers Cattleman Action Legal Fund v. United States Dep't of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005) (citing Arizona Cattle Growers' Ass'n, 273 F.3d at 1236.) Thus, as there is no evidence an incidental taking will occur as a result of the Fire Amendment itself, summary judgment will be granted in favor of Defendants.

The biological opinion was not final agency action because a subsequent biological opinion had consummated the decision process.

Pursuant to ESA regulations, a biological assessment "shall evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether formal consultation or a conference is necessary." 50 C.F.R. § 402.12(a) (emphasis added). Here, the court finds the biological as sessment did not mark the consummation of the agency's decisionmaking process. Rather, formal consultation occurred that resulted in a biologi-cal opinion. The biological opinion represents the final agency action subject to judicial review. See Oregon Natural Res. Council, 476 F.3d at 1035-36 (citing Bennett v. Spear, 520 U.S. at 177-78). The court does not express any opinion as to whether a biological assessment constitutes final agency action in the absence of a biological opinion. Even if the bio-logical assessment in this case constituted final agency action, the court finds WWP has failed to meet its burden of showing a violation of the ESA. WWP's conclusory assertions regarding the alleged deficiencies in the biological assessment are insufficient to defeat summary judgment. WWP has not shown how the analysis in the biological assessment is deficient or what additional information should have been included.