ESA update: News, Musings, Federal Register announcements and other holiday happenings
Merry Christmas and Happy New Year, ESA blawg readers. It was good timing for a vacation from blogging. As usual, the Thanksgiving to Christmas period was fairly calm on the Federal front, with only a small number of FWS announcements:
- FWS found that listing the black-tailed prairie dog as either threatened or endangered is not warranted, 74 Fed. Reg. 63344 (Thursday, December 3, 2009). In its analysis, FWS states that "the magnitude and imminence of threats do not indicate that the blacktailed prairie dog is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout its entire range... (and despite plague and climate change) and resulting impacts on the species, occupied habitat (a surrogate measure for population trends and status) in the United States has increased by more than 600 percent since the early 1960s. The species has proven to be quite resilient."
- FWS found that find that listing the Sprague’s pipit, one of the few endemic birds of the North American grasslands, may be warranted. 74 Fed. Reg. 63337 (Thursday, December 3, 2009). The analysis noted that native habitat is disappearing, and "there are no regulatory mechanisms that govern conversion of native grassland to cropland when migratory birds will be impacted."
- FWS also proposed to designate 13 miles
of stream habitat as critical habitat for the vermilion darter. 74 Fed.
Reg. 63366 (Thursday, December 3, 2009). The species is only known
in parts of the upper mainstem reach of Turkey Creek and four tributaries
in Pinson, Jefferson County, Alabama. Suitable streams have pools
of moderate current alternating with riffles of moderately swift current,
and low water turbidity.
The judicial arena was somewhat more active, the long-awaited decision in the epic, nine-year old Ringling Bros. case, ASPCA v. Feld Ent't, 03-2006 EGS, (D.D.C.) was abundantly unfulfilling. Avoiding the thorny substantive issues relating to whether a circus commits an ESA-regulated take through its elephant treatment, Judge Sullivan held that the environmental groups lacked standing. See Washington Post. Discussing the ex-trainer witness and plaintiff, The court found that "Mr. Rider is essentially a paid plaintiff and fact witness who is not credible, and therefore affords no weight to his testimony." (Then again, this conclusion is remarkable in that it shows the lengths to which some animal rights groups have gone to establish a basis for their lawsuits. Could a motion for sanctions and attorneys' fees be forthcoming?) For outstanding coverage of the case and trial, visit Endangered Species and Wetland Report. Photo of a Ringling Bros. elephant and trainer using a bullhook from The Elephant Sanctuary.
Another noteworthy decision was Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. 09-1519-RWT, (D. Md.), in which a wind energy project in West Virginia was stopped because of concerns over Indiana bats. The energy company, according to the Judge, had only itself to blame for its failure to obtain incidental take coverage for its impacts to species. "Sadly, defendants' environmental consultant viewed formal communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly," the judge said. The Beech Ridge case clearly demonstrates the potential power of the ESA to stop projects and actions.
The Indiana bat is hardly the only species that serves as a source of leverage for some interest groups. The Center for Biological Diversity and Turtle Island Restoration Network filed a formal notice today that they intend to sue the Obama administration for illegally delaying protection of penguins under the Endangered Species Act, citing the harms of climate change and industrial fisheries. And from the other side of the political spectrum, but recognizing the similar potential for ESA regulation of western land management, the Pacific Legal Foundation and Riverside County Farm Bureau sued to force action by the FWS on the Kangaroo rat delisting petitions filed in 1995 and 2002.
PLF unquestionably enjoyed FOX's "fair and balanced" three-part series on property rights, entitled Not So Private Property?: Endangered Species Pose Problems for Landowners. The article states that "According to the act, the government can dictate how private property is used if it's home to an endangered species -- and can even require landowners to help pay for programs that preserve certain endangered wildlife." Sadly, but perhaps predictably, FOX neglected to mention that the requirements to pay for protective measures are only triggered when the landowner takes an action that harms a listed species, which in turn triggers the requirements of the ESA.