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ESAblawg is an educational effort by Keith W. Rizzardi. View Keith Rizzardi's profile on LinkedIn Photos or links may be copyrighted; otherwise ESAblawg is published with a Creative Commons License. Creative Commons License

Keith Who?

Keith W. Rizzardi litigated wildlife cases for the U.S. Dept. of Justice, and works on Everglades issues for the South Florida Water Management District. A past Chair of The Florida Bar Government Lawyer Section, he earned board certification in State & Federal Administrative Practice.

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florida gators... never threatened!

If you ain't a Gator, you will be, because gator blood looks like our pharmaceutical future. Click here to read the relevant ESA musing.gatorlogo2.gif

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.

Contributors

PETE DAVID (Albuquerque, NM). Pete is a Certified Wildlife Biologist with 25 years experience with land stewardship and natural resources programs. He previously worked with the South Florida Water Management District, Florida Department of Environmental Regulation, U.S. Department of Defense, U.S. Forest Service, and U.S. Fish and Wildlife Service (FWS). His project experience includes reintroducing the federally endangered red-cockaded woodpecker to South Florida, and the Middle Rio Grande Endangered Species Act Collaborative Program in New Mexico. Today, Pete continues to work on endangered species issues as a Senior Project Manager for SWCA Environmental Consultants in Albuquerque.

YELIZAVETA BATRES (West Palm Beach, FL). Liz is currently clerking at the Florida Fourth District Court of Appeal, after graduating from the University of Florida Levin College of Law, where she was a senior research editor of the Law Review. Liz also interned at the U.S. Department of Justice, Environment and Natural Resources Division.

« FWS moves closer to listing the Delta smelt as endangered | Main| Law review on ESA: Reform or Refutation? »

Ooops, I didn't mean to catch that one! NOAA permits Washington State anglers to take listed salmon species.

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In June 2008, NOAA issued an incidental take permit to the State of Washington Department of Fish and Wildlife (WDFW).  By its terms, the permit "authorized incidental take of endangered Upper Columbia River (UCR) spring Chinook salmon (Oncorhynchus tshawytscha), endangered UCR steelhead (0. mykiss), threatened Middle Columbia River (MCR) steelhead, and threatened Snake River fall Chinook salmon while implementing the State of Washington's recreational fisheries programs as cited in the permit application with addendum."  

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Photo of salmon smolts from NOAA.

Valid for 10 years, and with specific numeric limitations of the numbers of each listed species that can be taken, the permit allows the take of endangered and threatened species through recreational fishing, but requires salmon run monitoring, catch limits, gear restrictions, seasonal limitations, law enforcement, public education, and annual reports.  

KEITHINKING: The permit resolves one of the tensions created by the ESA's rigid prohibitions.  In theory, a fisherman who accidently catches an endangered salmon species just violated the ESA.  Rather than try to enforce such absurdities, the permit eliminates any potential concerns over legal wrongdoing, while also ensuring, as a practical matter, that NOAA and Washington State coordinate their efforts to improve recreational fishery management in the Pacific Northwest to the benefit of salmonid species.  Seems like common sense to me.

NOAA's Issuance of the permit also required NOAA to complete a biological opinion, in which the agency assessed the consequences, and benefits, of the permit.  Acknowledging the potential adverse impacts to species, the BiOp explains that: "The vast majority (90%) of the listed fish encountered in any of the fisheries would be captured-and-released and are expected to survive with no long-term effects. Additionally, in most cases, the take would occur in locations that would not target a single population within an (Evoluntarily Significant Unit) or Distinct Population Segment (DPS). Approximately six Upper Columbia River spring Chinook salmon, 37 natural-origin (186 total) Upper Columbia River steelhead, eight Snake River fall Chinook salmon, and five Middle Columbia River steelhead would be killed annually during the implementation of ten recreational fisheries in the middle and upper Columbia River basin. Thus, all the fisheries impacts taken together would have some negative impacts to the ESUs/DPS affected and some may in a small way impact critical habitat."  On the other hand, the BiOp also discussed the potential benefits of the permit and accompanying programs, especially the efforts by Washington State to control hatchery fish, and found that these benefits were .  The WDFW has a great deal of experience implementing these fisheries (the Entiat River fishery is an exception) and there is a high level of confidence in analyzing the effects of those fisheries. Additionally, as is the case with at least two of the proposed fisheries (those associated with the Leavenworth and Entiat NFH programs) potential benefits to the population’s diversity may be derived from the decrease in stray Carson-stock hatchery origin fish. Reduction in the number of non-listed species competing for similar limited resources would also be a benefit to listed fish. The amount of benefit would vary by ESU or DPS, but it could be significant over time."  Ultimately, the BiOp concluded that "issuance of the permit 1554, as proposed, is not likely to jeopardize the continued existence of endangered UCR spring Chinook salmon, endangered UCR steelhead, threatened MCR steelhead, or threatened SR fall Chinook salmon, nor destroy nor adversely modify any critical habitat."

FOR ADDITIONAL RESOURCES on salmonid species in the Pacific Northwest, visit the NOAA Northwest Regional Office

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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 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.

    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.

    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

    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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    "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)

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