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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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Plaintiffs lose in two separate Florida cases challenging federal actions related to Perdido Key beach mouse and Everglades restoration

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Fisher v. Salazar,- - F.Supp.2d - -, 2009 WL 3030736 (N.D.Fla.)(William Stafford, District Judge)
INTRO: The plaintiffs, Paul and Gayle Fisher (the "Fishers") and Perdido Key Property Rights, Inc. ("PKPR") (collectively, "Plaintiffs"), filed this action alleging that the defendants (collectively, "Defendants"), through the United States Fish and Wildlife Service ("FWS"), designated critical habitat for the Perdido Key beach mouse "without adequate delineation or justification and without sufficient analysis of the economic and other impacts of the designation." Before the court at this time are the parties' cross-motions for summary judgment.

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The Perdido Key beach mouse can be found in the wild only on Perdido Key, a barrier island consisting of 2,943 acres of coastal land from Perdido Pass in Alabama to Pensacola Bay in Florida. Historically, this mouse ranged the entire length of Perdido Key (16.9 miles), inhabiting burrows dug into primary, secondary, and higher-elevation scrub dunes. By 1980, the effects of human development, coupled with a 1979 category 4 hurricane, led to the extirpation of all but a single colony of thirty mice living at Gulf State Park at the westernmost end of Perdido Key.  Photo of Perdido Key beach mouse by Auburn University and AL Cooperative Research, available at USFWS Panama City Ecological Services Office

BACKGROUND: A final rule designating revised critical habitat was published on October 12, 2006. Final Rule, 71 Fed.Reg. 60238 (Oct. 12, 2006).   The 2006 final rule designates 1300 acres--991 acres of public land and 309 acres of private land--as critical habitat for the Perdido Key beach mouse. Specifically, the revised designation consists of five land units that, together, comprise a little less than half of the total acreage of Perdido Key...  Like the federal government, the State of Florida has an Endangered and Threatened Species Act. Fla. Stat. § 379.2291. By rule, the Florida Fish and Wildlife Conservation Commission ("FFWCC") has listed the Perdido Key beach mouse as an endangered species  

RULING ON STANDING: Quite simply, the facts " 'set forth' by affidavit or other evidence" are so minimal as to preclude this court's finding on a motion for summary judgment that the Fishers have standing to challenge the critical habitat designation of either unit 2 or 4, the only two units consisting of private lands.

RULING ON MERITS:  Even if the court were to assume, for the sake of argument, that Plaintiffs do have standing to challenge the designation of unit 2, unit 4, or both, the court finds that they have not demonstrated that the FWS's designation is invalid...
In this case, the FWS hired Industrial Economics, Inc., to prepare a report analyzing the economic impacts of critical habitat designation on Perdido Key and elsewhere. The consultants' report--dated September 8, 2006-- describes the framework for analysis in some detail...  Plaintiffs disagree with the methods and results of the consulting firm's distributional-effects analysis, but they altogether fail to establish that the FWS's reliance on that analysis was arbitrary and capricious. As mentioned above, an agency decision is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43. Plain-tiffs here have demonstrated nothing of the sort.

KEITHINKING:  Although ultimately tangential to the Courts' conclusions, the opinion includes a useful explanation of the region's approach to regulation of the beach mouse, with excerpts below.  The availability of these programs probably contributed to the Court's readiness to rule against the Plaintiffs, both on their standing, and on the merits.

EXCERPT:  Because incidental take becomes a factor based on a species' presence on land, the FWS has a specific protocol for determining the presence or absence of beach mice. In the words of the FWS: "A single trapping event can provide evidence of beach mouse presence in an area if beach mice are caught; however, due to detection probabilities, a single trapping event, during which no beach mice were caught, does not determine absence. Our trapping protocol recommends quarterly trapping for two years as necessary to determine absence of beach mice.  Final Rule, 71 Fed.Reg. 60238, 60241 (Oct. 12, 2006). If presence of beach mice is documented on private lands where no critical habitat designation exists, private landowners are nonetheless required to minimize impacts on the beach mouse and, where applicable, to obtain permits and perform mitigation. On the other hand, according to FWS, neither a permit nor mitigation is required for property owners who rebuild within the footprint of previous developments...  

In December of 2005, a year before the FWS issued its final rule revising the designation of critical habitat, the Board of County Commissioners entered into an agreement with the FFWCC and the FWS to establish a unified process for mitigating impacts to the Perdido Key beach mouse. Wanting to establish a single administrative mechanism for managing and spending funds generated from various sources for beach mouse conservation, the parties established a conservation fund--the Perdido Key Conservation Management Fund--into which both state and federal permitting applicants may voluntarily contribute funds as a means of mitigating the effects of development on the beach mouse. The three governmental parties agreed to a unified mitigation fee of $100,000 per acre of impact, plus a recurring fee of $201 per development unit per year. The availability of this unified contribution approach was expected to streamline the permitting process, thereby reducing costs and delays, by simultaneously meeting the requirements of all three levels of government (county, state, and federal).

***

Miccosukee Tribe v. USA, No. 08-22966-CIV, 2009 WL 2872989 (S.D.Fla. Sept. 1, 2009)

BACKGROUND: Plaintiff's Complaint contains five counts alleging Defendants violated the Endangered Species Act (ESA) as a result of the Modified Water Deliveries to Ever-glades National Park project (MWD project). N1As part of the MWD project, Defendants, through the Army Corps of Engineers (Corps), plan to construct a one-mile bridge, which would be part of the Tamiami Trail. The Complaint alleges that the construction of the bridge would result in increased water flow and increased water levels in certain areas of the Everglades and, as a result, the habitat of the endangered Snail Kite would be harmed, thus harming the Snail Kite, as well as the endangered Wood Stork.  Defendants move to dismiss all of Plaintiff's claims based on the express language contained in the Omnibus Appropriations Act of 2009, Public Law 11- 8, 123 Stat. 524 (the "Omnibus Act"), N2which Defendants argue renders Plaintiff's claims moot, deprives Plaintiff of any claim upon which relief can be granted, and deprives the Court of jurisdiction over Plaintiff's claims.

KEY RULING: Congress's mandate is clear: the Corps "shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2a to U.S. Highway 41 (the Tamiami Trail) ..." Again, looking at the ordinary meaning of the language employed by Congress, it would be impossible to comply with the mandate of the Omnibus Act and ESA because compliance with ESA in the manner Plaintiff seeks would prevent the Corps from construction of the specified portion of the Tamiami Trail "immediately and without further delay."  When statutory provisions conflict, the latter enacted provision controls to the extent of conflict with the earlier enacted provision. See, e.g., Nguyen v. United States, 556 F.3d 1244, 1253 (11th Cir.2009). Thus, the Omnibus Act exempted this specific portion of the MWD project from complying with ESA.

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The Tamiami Trail project is located in Miami-Dade County in south Florida. The purpose of the Tamiami Trial Modifications component is to identify the alterations to the Tamiami Trail that would improve water flow into Everglades National Park.  Photo of waters flowing under Tamiami Trail from the U.S. Army Corps of Engineers.

KEITHINKING: The Miccosukee Tribe filed five different lawsuits in an attempt to stop the Tamiami Trail project.  Although they obtained one preliminary injunction, and some defeats have been appealed, they have lost every decision that has reached the full merits.  See related links from the Everglades Foundation, South Florida Business Journal, and Miami Today.