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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« New ESA consultation rules officially rescinded, but debate encouraged to continue | Main| FWS initial review of petition says listing of American pika may be warranted »

11th Circuit largely deferential to FWS biological opinion in Everglades, but rejects habitat-based approach to incidental take statements

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Miccosukee Tribe of Indians v. USA, No. 08-10799 (11th Cir. May 5, 2009)

REGIONAL CONTEXT: In 1948, the U.S. Army Corps of Engineers undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams…. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits the Cape Sable Seaside Sparrow against the Everglades Snail Kite, a hawk.  Kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates. Both birds are protected by the 1973 Endangered Species Act, 16 U.S.C. §1531 et seq. The Act outlaws the “take” of any endangered species.

STATUTORY BACKGROUND: The Endangered Species Act, Section 7(a)(2) requires every federal agency to ensure that its actions will not jeopardize the continued existence of any endangered species. 16 U.S.C. §1536(a)(2). To coordinate their efforts to comply with section 7(a)(2), the agencies involved, here the Army Corps of Engineers and the Fish & Wildlife Service, consult with each other…  If the proposed action would not jeopardize the species but still might result in incidental harm to it, the Service attaches to the biological opinion an incidental take statement establishing the terms and conditions under which the incidental take may occur. 50 C.F.R. § 402.14(i).

KEY FACTUAL BACKGROUND: In the early 1980s Congress authorized a restructuring of the Corps’ water management system in order to restore wildlife in the Everglades. Someone decided that the best way to figure out how to correct the unplanned environmental consequences was to undertake a series of trial-and-error tests… In 1995, under “Test 7,” the Corps began releasing large amounts of water through the S-12 gates…  In 1998, the Corps created an “Interim Structural and Operational Plan” that altered Test 7 by closing the gates during sparrow breeding season…  Between 1999 and 2002, the Corps and the Service consulted and developed the “Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow” (Interim Plan). During the same period, a regional drought cut the number of kites statewide in half, from 3,400 to 1,700 birds…  In 2002, the Corps then implemented the Interim Plan, which changed the S-12 water release schedule… Water began to back up north of the gates—in the kites’ critical habitat and on Miccosukee tribal land. Birds cannot sue, but a tribe can and this one did.  In November 2005 the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging its 2002 approval of the Interim Plan.  In November 2006 the Service issued another biological opinion… but it still found that the kite would not be jeopardized by allowing the Interim Plan to continue until 2010 or 2011 for the good of the sparrow.

The Cape Sable seaside sparrow (picture above by  Lori Oberhofer from Everglades National Park) lives primarily in and around Everglades National Park. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels, needing favorable breeding conditions without long periods of interruption.  The Everglade Snail Kite (picture below from South Florida Water Management District), a type of hawk, lives in the marshes of Florida and Cuba.  Kites feed primarily on apple snails, which require periods of inundation to reproduce, but the birds nest in woody vegetation that dies off if that inundation lasts too long or if the water level goes too high. It is, in that respect, a Goldilocks kind of bird.  

KEY RULINGS:  The Miccosukee Tribe launches a three-front assault on the 2006 biological opinion and the incidental take statement. The Tribe’s first contention is that the 2006 biological opinion is ‘not in accordance with law’ because it fails to follow proper procedures… The Tribe’s second contention is that the 2006 biological opinion is arbitrary and capricious because it arrives at conclusions that are counter to the scientific data in the record or are so implausible that they go beyond an acceptable difference of expert opinion... The tribe’s third contention is that the incidental take statement is deficient because it improperly quantifies incidental take in terms of habitat markers and fails to provide a meaningful trigger for re-consultation.

     HOLDING RE: IMPROPER PROCEDURES: The Tribe argues that the Service ignored a number of studies and scientists’ statements that show “alarming” and dramatic declines in the kite population. But the Tribe’s arguments do not hold water… While the 2006 biological opinion’s predictions do differ from those of some scientists who have studied the kite, the basic data is not in dispute and was taken into account by the Service when it drafted the opinion. That is all the Endangered Species Act requires the Service to do with the “best scientific and commercial data available.” 16 U.S.C. §1536(a)(2); Marsh, 490 U.S. at 377–78, 109 S. Ct. at 1861.
     The Tribe also contends that the legislative history of the Endangered Species Act demonstrates that Congress generally wished to “give the benefit of the doubt to the species.” H.R. Rep. No. 96-697, at 12 (1979) (Conf. Rep.), as reprinted in 1979 U.S.C.C.A.N. 2572, 2576. The Tribe argues that those nine words from the Joint Explanatory Statement of the Conference Committee, quoted in the House Conference Report, demand a presumption in favor of the species if the evidence is balanced between likely jeopardy and no jeopardy.  To begin with, we are reluctant to read into the words that Congress has enacted as law, words that it did not enact as law. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006)… Putting that reluctance aside for the time being, the context of the benefit of the doubt language in the conference report suggests only that agencies, including the Service, cannot hide behind uncertain scientific data to shirk their duties under the Act…
     Because the Tribe has not demonstrated that the Service failed to consider any major scientific work or any material fact when it rendered the 2006 biological opinion, we reject its procedural attack on the 2006 biological opinion.

     HOLDING RE: BIOP CONCLUSIONS:  The 2006 biological opinion concedes that the Interim Plan will continue to harm the kite habitat by flooding it…  The biological opinion acknowledges that the Interim Plan may also cause water levels to decline rapidly in kite habitat during the spring, threatening its nests.  However, the opinion concludes that “Degradation of designated critical habitat within WCA-3A is expected to continue under he Interim Plan but this is reversible with improved hydrologic conditions. No permanent loss of critical habitat is expected.”  …Evidently the Service is under the impression that flooding twenty percent of the kites’ critical habitat to a depth that kills the woody vegetation the bird likes to perch on, that drives off the apple snails it likes to eat, and that reduces its nesting success is not “adverse modification” of critical habitat within the meaning of the Act. The Service asserts that “no permanent loss of critical habitat is expected.” (emphasis added) But the Service does not cite, and we are unable to find, any decision holding that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification.” …  Whether short-term impacts on critical habitat amount to “adverse modification” depends to a large extent on the life cycle of the species. Some species may be eradicated if their habitats are negatively affected even for a relatively short time. Restoration of a habitat cannot resurrect the dead.
     Nevertheless… we limit our conclusion, of course, to the facts of this case. Those facts involve a long-term program for restoring the Everglades’ natural flow in a way that would cause temporary flooding of twenty percent of the critical habitat of a long-lived species of kite with a high adult survival rate and a wide range. The flooding is being done in an effort to avoid the extinction of an endangered sparrow in the area. The aim is to eventually restore the natural flow of the Everglades, a restoration which hopefully will benefit both endangered birds. In light of these facts, the Service’s determination in its 2006 biological opinion that the action will not jeopardize the kite or adversely modify its habitat within the meaning of the Endangered Species Act is not arbitrary and capricious.

     HOLDING RE: INCIDENTAL TAKE STATEMENT: The Tribe’s last contention is that the Fish & Wildlife Service’s incidental take statement is defective because it fails to specify, in numbers of birds, how much “take” is permissible. An incidental take statement may lawfully authorize harm to an endangered species as long as the statement sets a ‘trigger’ for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species. 50 C.F.R. § 402.14(i)(4)…  The Service’s “Final ESA Section 7 Consultation Handbook,” however, does provide guidance about how impact on the species may be measured… and it allows the Service to use, without specific justification, habitat impact measurements (also called “habitat markers”) to express take instead of using actual head counts of members of the species.  Legislative history recently led the Ninth Circuit to invalidate an incidental take statement. See Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1037 (9th Cir. 2007) (“Congress has clearly declared a preference for expressing take in numerical form, and an Incidental Take Statement that utilizes a surrogate easureinstead of a numerical cap on take must explain why it was impracticable to express a numerical measure of take.”)… We apply instead the rule that specific population data is required unless it is impractical. See Allen, 476 F.3d at 1037–38. The rule makes sense. The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.
     We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced.

KEITHINKING: Other noteworthy aspects of the decision include the distinguishing of Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)(suggesting that Congress intended “to give the benefit of the doubt to the species.”) by noting that Conner “does not suggest that there is any presumption in favor of the species if, as in this case, there is abundant data,” and the distinguishing of Rock Creek Alliance v. United States Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1008 (D. Mont. 2005) (“tie in the evidence should go to the species.”) as “based in part on significant scientific blunders by the Service.”  The 11th Circuit also showed judicial restraint, accepting the biological opinion’s conclusions regarding whether the agency actions might jeopardize snail kite populations.  However, the 11th Circuit was not deferential to an ESA policy handbook, and after a discussion of Chevron, Christensen, Mead, and Skidmore, refused to grant the Service's interpretation of the ESA (as expressed in its policy manual) Chevron deference, reaching a different conclusion based on the statute.  Specifically, the Court held, based on Chevron step one, that Congress had clearly spoken, giving different instructions as to the requirements of an incidental take statement.