The Endangered Species Act law blog. Wed, 11 Nov 2009 01:45:23 +0000 http://www.esablawg.com/esalaw/ESBlawg.nsf en http://www.esablawg.com/esalaw/ESBlawg.nsf/rss.gif http://www.esablawg.com/esalaw/ESBlawg.nsf Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KSPT-7XM5MR Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KSPT-7XM5MR http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KSPT-7XM5MR National Wildlife Federation v. Souza, 2009 U.S. Dist. LEXIS 99674 (S.D. Fla., Oct. 23, 2009)

BACKGROUND: In 2007, the Corps issued a Clean Water Act ("CWA") � 404 permit to J.D. Nicewonder. Such permit has since been transferred to the Intervenor. Plaintiffs allege that by issuing this permit the Corps "has permitted the destruction of 645 acres of the Cocohatchee Slough in Collier County for a 1,713-acre luxury residential golf community known as 'Mirasol.'" (D.E. No. 1 at 2-3). Plaintiffs allege that the Cocohatchee Slough "stores and filters water needed to sustain life in the Western Everglades." Id. at 2. Plaintiffs also allege that the Cocohatchee Slough "provides essential 'core' foraging habitat for the endangered word stork." Id. at 3. Specifically, Plaintiffs allege violations of the Endangered Species Act ("ESA"), the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedures Act ("APA").

RULING: After careful consideration, the Court finds that the FWS's biological opinion is inadequate with regard to its failure to analyze the impacts of other federal projects in the area in analyzing the environmental baseline and based on the FWS's calculation of fish prey density in the opinion. The Court declines to reach Plaintiffs' argument that Corps's reliance on this biological opinion with respect to these issues was arbitrary and capricious. The Court, however, finds all Plaintiffs' other arguments are without merit.

KEITHINKING: Noteably, the opinion by Judge Jose Martinez includes a specific endorsement of the Corps' Southwest Florida Environmental Impact Statement as sufficient to meet the ESA's 7(a)(1) affirmative duty to conserve listed species.

EXCERPT RE: CONSERVATION DUTY.   In this case, the Court finds that the preparation and implementation of the Southwest Florida Environmental Impact Statement demonstrates that the Corps has created a meaningful program to conserve the wood stork and that it has carried out programs for the conservation of the wood stork. The Corps "initiated the . . . [SWFEIS] out of concern [for] whether the incremental (permit-by permit) reviews 17 were adequately addressing cumulative and secondary effects of the wetland filling the rapidly growing Southwest Florida area." (D.E. No. 52-5 at 2). The Corps specifically notes that scrutiny of their process is important because of the "important resources" in the area, including ten endangered or threatened species. Id. at 1, 3. In the SWFEIS, the Corps proposes "to use the information in . . . [the SWFEIS] in the review of future permits" to better identify issues relevant to the proposed project. The Corps has also developed "a set of standardized natural resource criteria" to be used in review permit applications in southwest Florida. Id...   The SWFEIS also gives recommendations "for the recovery of the species" with specific emphasis on the protection or restoration of existing wetlands. Id. at 14 (stating that the "ability of the species to search for new locations gives great hope for the recovery of the species but only if that species has 'options' for establishing nesting locations."); see also (D.E. No. 52-5 at 60) (stating that "[m]aintenance/restoration of short hydroperiod wetlands restores historic [wood stork] nesting productivity and foraging habitat availability."). Thus, the Court finds that the Corps has created a program to preserve the wood stork in compliance with section 7(a)(1) of the ESA.

EXCERPT RE: ENVIRONMENTAL BASELINE.   It is undisputed that the FWS does not estimate the amount of short hydroperiod wetlands in the entire action area nor does it estimate the number of wetlands needed to sustain the wood storks; however, there is no requirement under the law that such data be included in the environmental baseline nor is there any indication that the FWS's failure to include such information was arbitrary, capricious, or an abuse of discretion. Under the APA, this Court gives substantial deference to the FWS's decisions as to "what evidence to find credible" and "drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue," finding such decisions inadequate only where they are arbitrary, capricious, or an abuse of discretion. Sierra Club v. Van Antwerp, 526 F. 3d 1353, 1361 (11th Cir. 2008). Here, the FWS's failure to include the specific information noted by Plaintiffs does not meet this standard.  The Court, however, finds that the FWS did not adequately consider the other federal projects in their biological opinion. Plaintiffs argue that the FWS's discussion of the environmental baseline is arbitrary and capricious because the biological opinion fails to discuss the combined impacts of other federal projects in the action area including Saturnia Falls, Parklands, Cypress Run, and Bonita Beach Road. This Court agrees...

While the biological opinion does reference these other projects, see (D.E. No. 32-4, biological opinion at 2, 6, 107), there is no analysis of these projects or their impacts. "Simply reciting the activities and impacts that constitute the baseline and then separately addressing only the impacts of the particular agency action in isolation is not sufficient." Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127-28 (D.D.C. 2001); see also Greenpeace v. Nat'l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000) ("Although BiOp2 states that its conclusions are based on a 'cumulative effects analysis,' . . . and even contains a section titled 'Cumulative Effects,' . . . in fact this section contains no analysis whatsoever and is nothing more than a list of the fisheries regulated by the state of Alaska or granted by treaty to Native Americans. The section contains no explanation of how the various groundfish fisheries and fishery management measures interrelate and how the overall management regime may or may not affect Steller sea lions."). Thus, the Court finds that the analysis of the environmental baseline in the biological opinion was arbitrary and capricious with regard to the FWS's failure to adequately assess the other federal projects in their biological opinion.

EXCERPT RE: FISH PREY DENSITY.  The Court, however, does find that the FWS's calculation of fish prey density was arbitrary, capricious, and an abuse of discretion. In the biological opinion, the FWS calculated the fish prey density, or number of fish per square meter, per hydroperiod. The FWS performed this calculation by extrapolating the fish densities from the Trexler Study (D.E. No. 34-6) to the seven hydroperiods used by the FWS in this case. 13 The fish densities used in the Trexler Study and adopted by the FWS in their biological opinion were based on "throw-trap samples" or fish caught by use of a throw-trap. (D.E. No. 34-6 at 16). The Trexler Study states that these throw-traps were used to target small fish or fish less than 8 cm in length. 14 In the biological opinion, however, the FWS uses the data in the Trexler Study as if it represents all fish, regardless of their size, found in a specific hydroperiod. The FWS does not explain this discrepancy in the biological opinion. In addition, neither the Defendants nor the Intervenor has specifically responded to this discrepancy in their briefs. The Court finds that the FWS's unexplained reliance on this source of data which applies only to fish less than 8 cm as a basis for determining the density of all fish in the hydroperiods was arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins., 463 U.S. 29, 43 (1983) (stating that a "reviewing court should not attempt itself to make up for deficiencies . . [and cannot] 'supply a reasoned basis for the agency's action that the agency itself has not given.'") (quoting SEC v. Cheney Corp., 332 U.S. 194, 196 (1947)); Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87, 105 (1983) (stating that the relevant inquiry in determining whether an agency decision should be overturned is whether there is "a rational connection between the facts found and the choice made."). ]]> Mon, 09 Nov 2009 03:05:09 +0000 1 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XG34S Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XG34S http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XG34S 74 Fed. Reg. 56770 / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Listing the Salmon-Crested Cockatoo as Threatened Throughout Its Range with Special Rule
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list the salmon-crested cockatoo (Cacatua moluccensis) as threatened,  with a special rule, under the Endangered Species Act of 1973, as amended (Act). This proposal, if made final, would extend the Act’s protections to this species and amend the regulations at 50 CFR part 17 to create a special rule under authority of section 4(d) of the Act that provides measures that are necessary and advisable for the conservation of the salmon-crested cockatoo. The Service seeks data and comments from the public on this proposed listing and special rule. DATES: We will accept comments received or postmarked on or before February 1, 2010.

EXCERPT: Under a settlement agreement approved by the U.S. District Court for the Northern District of California on June 15, 2009 (CBD, et al. v. Salazar, 09-cv-02578-CRB), the Service must submit to the Federal Register a proposed listing rule for the salmon-crested cockatoo by October 30, 2009...  We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the salmon-crested cockatoo. The species is at risk of extinction in the foreseeable future throughout all of its range primarily due to extensive logging and conversion of lowland forests to agricultural lands and plantations (Factor A) and uncontrolled, illegal trapping for the domestic and international pet trade (Factor B). Also, existing regulatory mechanisms, as implemented, are inadequate to mitigate the current threats to the salmon-crested cockatoo (Factor D). Although El Nino forest fires are not currently adversely affecting the salmon-crested cockatoo, fires will be a threat in the foreseeable future due to the extensive planned logging and clearing of land and predicted increase in number and severity of El Nino events due to global climate change (Factor E).


Cockatoos are a distinct group of parrots distinguished by the presence of an erectile crest and the lack of dyck texture in their feathers, which produces blue and green coloration in the plumage of other parrots. The salmon-crested cockatoo (also known as the Seram, Moluccan, pinkcrested, or rose-crested cockatoo) is the largest and the most striking of Indonesia’s white cockatoos, standing 15.6–20 inches high, and with plumage from pale salmon-pink to whitish-pink. The species is listed on the IUCN (International Union for Conservation of Nature) Red List as ‘Vulnerable’ because it has suffered a rapid population decline as a result of trapping for the pet bird trade and because of deforestation in its small range. Image from the Greater Vancouver Zoo.

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74 Fed. Reg. 56757 / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Listing the British Columbia Distinct Population Segment of the Queen Charlotte Goshawk Under the Endangered Species Act.
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to list the British Columbia distinct population segment (DPS) of the Queen Charlotte goshawk (Accipiter gentilis laingi) as threatened, except on the Queen Charlotte Islands (a significant portion of  the DPS’s range), where we propose to list the goshawk as endangered, under the Endangered Species Act of 1973, as amended (Act). This proposal, if made final, would  extend the Act’s protection to this subspecies in British Columbia, Canada, on Vancouver Island and the surrounding smaller islands, the Queen Charlotte Islands, and the coastal mainland west of the Coast Mountains. The Service seeks data and comments from the public on this proposal. DATES: We will consider comments received on or before January 4, 2010.

EXCERPT: Our analysis of threats suggests that as additional forest is logged, habitat quality will continue to decline for the British Columbia DPS of the Queen Charlotte goshawk and its prey. With reduced prey populations, and less favorable habitats in which to hunt, we expect that Queen Charlotte goshawks within the British Columbia DPS would have reduced nesting success. Ultimately, this is expected to result in even smaller populations than currently occur (352 to 374 breeding pairs). Smaller populations likely would become increasingly vulnerable to factors such as predation, disease, prey fluctuations, hybridization, and inbreeding depression. We conclude, therefore, that while extinction is not imminent, the Queen Charlotte goshawk is in danger of extinction in the foreseeable future within the British Columbia DPS. Therefore, we propose to list the Queen Charlotte goshawk in portions of British Columbia (not including the Queen Charlotte Islands, as explained below) as a threatened species under the Act.


The Queen Charlotte goshawk is a comparatively small, dark subspecies of northern goshawk (Accipiter gentilis) that nests and forages in the temperate, rainforest-dominated archipelagos and coastal mainland of southeast Alaska and British Columbia. Goshawks typically nest and forage in old-growth forest, but use mature second-growth (previously harvested, regenerating stands that have developed adequate structure) where old-growth forest is limited.  Photo of adult male Queen Charlotte Goshawk, by Rich Lowell, Alaska Department of Fish & Game, from U.S. FWS

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74 Fed. Reg. 56978 / Vol. 74, No. 211 / Tuesday, November 3, 2009 / Rules and Regulations
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Cirsium loncholepis (La Graciosa Thistle)
ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating final revised critical habitat for Cirsium loncholepis (La Graciosa thistle). We are designating approximately 24,103 acres (ac) (9,754 hectares (ha)) of habitat in San Luis Obispo and Santa Barbara Counties, California, as critical habitat for C. loncholepis. This final revised designation constitutes a reduction of approximately 16,986 ac (6,873 ha) from the 2004 designation of critical habitat for C. loncholepis. DATES: This rule becomes effective on December 3, 2009.

EXCERPT: The Ballistic Missile Defense System (BMDS) is a critical national security concept to provide an effective defense for the United States, and Vandenberg Air Force Base states that the Conventional Strike Missile program has been planned for a location in the vicinity of proposed La Graciosa Thistle critical habitat.  While the base provides large buffers around launch facilities, communications and utility corridors exist throughout the base, including through otherwise undeveloped areas. VAFB states that designation of critical habitat could result in closure of areas needed for development, a reduction in the availability of operational land required for present and future needs, and project delays due to administrative requirements.

KEITHINKING: The changes to critical habitat also remove areas that were susceptible to off-road vehicle use and did not contain the necessary PCEs to justify a critical habitat designation.  
]]> Wed, 04 Nov 2009 00:55:33 +0000 0 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC376 Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC376 http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC376 74 Fed. Reg. 56058 / Vol. 74, No. 208 / Thursday, October 29, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States
ACTION: Proposed rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for polar bear (Ursus maritimus) populations in the United States under the Endangered Species Act of 1973, as amended (Act). In total, approximately 519,403 square kilometers (km2) (200,541 square miles (mi2)) fall within the boundaries of the proposed critical habitat designation. The proposed critical habitat is located in Alaska and adjacent territorial and U.S. waters. DATES: We will consider comments we receive on or before December 28, 2009.

EXCERPT RE: LOCATIONS.  Currently, there are two polar bear populations in the United States as defined under the Marine Mammal Protection Act (MMPA): the southern Beaufort Sea population, which extends into Canada; and the Chukchi and Bering Seas population, which extends into the Russian Federation (Russia). Although the two U.S. populations are not distinguishable genetically, the population boundaries are thought to be ecologically meaningful and distinct enough to be used for management.  

EXCERPT RE: PRIMARY CONSTITUENT ELEMENTS. Based on the needs identified above and our current knowledge of the life history, biology, and ecology of the species, we have determined that the primary constituent elements (PCEs) for the polar bear in the United States are: (1) Sea-ice habitat used for feeding, breeding, denning, and movements, which is sea ice over marine waters that occur over the continental shelf at depths 300 m (984.2 ft) or less. (2) Terrestrial denning habitat, which includes topographic features, such as coastal bluffs and river banks, with suitable macrohabitat characteristics. Suitable macrohabitat characteristics are: (a) Steep, stable slopes (range 15.5–50.0�), with heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or relatively level ground below the slope and relatively flat terrain above the slope; (b) unobstructed, undisturbed access between den sites and the coast; and (c) the absence of disturbance from humans and human activities that might attract other bears. (3) Barrier island habitat used for denning, refuge from human disturbance, and movements along the coast to access maternal den and optimal feeding habitat. This includes all barrier islands and their associated spits, within the range of the polar bear in the United States, and the water, ice, and terrestrial habitat within 1.6 km (1 mi) of these islands. For purposes of this proposed rule, we are proposing three critical habitat units based on the three PCEs described above.


As polar bears evolved from brown bears, they became increasingly specialized for hunting seals from the surface of the sea ice. Snow cover, both on land and on sea ice, is an important component of polar bear habitat in that it provides insulation and cover for polar bear dens.  Sea ice is rapidly diminishing throughout the Arctic, and declines in optimal polar bear sea-ice habitat have already been documented.  The proposal would designate habitat in three areas or units: barrier islands, sea ice and terrestrial denning habitat. Photo by FWS from The Physical Environment.

KEITHINKING: It could become the largest ever designation of critical habitat, and in turn, will probably spawn the largest ever litigation over whether or not some future federal agency action "adversely modifies" the critical habitat.  As FWS explained in the rule, "Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for polar bear populations in the United States."  Also, as FWS explained in its special 4(d0 rule on the threatened species listing, "in the event critical habitat is designated for the polar bear in the future, nothing in this special rule affects the prohibition against destruction or adverse modification of any critical habitat through a Federal action, and Federal agencies would be required to consider the destruction or adverse modification standard in the consultation process under section 7 of the ESA."  See links to rule in ESA blawg.

This critical habitat designation could easily turn into an alternative tool for regulating climate change.  See prior ESA blawg.  Notably, FWS listed three specific types of activities that it believes trigger the "adverse modification" threshold: (1) Actions that would reduce the availability or accessibility of polar bear prey species. (2) Actions that would directly impact the PCEs. (3) Actions that would render critical habitat areas unsuitable for use by polar bears.  The third category could prove especially controversial; inevitably, the dispute will be over how direct or attenuated the cause and effect relationship needs to be between the proposed federal action, and the affects on polar bears.  (Interestingly, in its own comment letters on the ESA regulations, the State of California asserted that "carbon dioxide emissions have a direct adverse impact on the polar bear and its habitat.")  Expect the battle over the application of the adverse modification standard to be intense.  NRDC already stated that it expects the FWS to expand its ESA review of oil and drilling activity.   The Los Angeles Times.  WWF emphasized the close relationship with climate change issues.  But on the other side of the issue, the State of Alaska plans to continue former Governor Sarah Palin's opposition to the designation.  See NPR article.  The 60-day comment period is now underway.

FOR MORE INFORMATION, visit FWS Alaska office, and articles in sustainablebusiness.com, and New York Times and blogs and other media including Van Ness Feldman,
]]> Sat, 31 Oct 2009 00:59:25 +0000 2 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC2WL Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC2WL http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7XC2WL 74 Fed. Reg. 55524 / Vol. 74, No. 207 / Wednesday, October 28, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Status Review of Arctic Grayling (Thymallus arcticus) in the Upper Missouri River System
ACTION: Notice of intent to conduct status review.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), under the authority of the Endangered Species Act of 1973, as amended (Act), give notice of our intent to conduct a status review of Arctic grayling (Thymallus arcticus) in the upper Missouri River system. We conduct status reviews to determine whether the entity should be listed as endangered or threatened under the Act. Through this notice, we encourage all interested parties to provide us information regarding Arctic grayling in the upper Missouri River basin. DATES: We must receive information no later than November 27, 2009.


The Arctic grayling is a fish belonging to the family Salmonidae (salmon, trout, charr, whitefishes), subfamily Thymallinae (graylings), and is represented by a single genus.  Previously, FWS determined that fluvial Arctic grayling of the upper Missouri River did not constitute a species, subspecies, or DPS under the ESA, annd withdrew the fluvial Arctic grayling from the candidate list.  With this notice (and spurred along by litigation) FWS is initiating a new status review for Arctic grayling of the upper Missouri River system. Photo from Montana Fish Wildlife and Parks

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74 Fed. Reg. 55525 / Vol. 74, No. 207 / Wednesday, October 28, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the Northern Leopard Frog (Lithobates Ranapipiens) in the Western United States as Threatened
ACTION: Notice of a 90–day petition finding; reopening of the information solicitation period.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public information solicitation period on our July 1, 2009, initiation of status review and 90–day finding on a petition to list the western U.S. population of the northern leopard frog (Lithobates Ranapipiens) as threatened under the Endangered Species Act of 1973, as amended (Act). This action will provide all interested parties with an additional opportunity to submit information and materials on the status of the northern leopard frog.   Information previously submitted need not be resubmitted as it has already been incorporated into the public record and will be fully considered in the 12–month finding... we request that we receive information on or before November 27, 2009.
]]> Sat, 31 Oct 2009 00:45:41 +0000 0 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X93GL Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X93GL http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X93GL The Delta Smelt Consolidated Cases, 2009 WL 3273843 (E.D. Cal., Oct. 8, 2009)

INTRO: This case concerns the United States Fish and Wildlife Service's (FWS) December 15, 2008 biological opinion (BiOp or 2008 BiOp) concerning the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) on the threatened delta smelt, prepared pursuant to Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. �� 1536(a)(2). Before the court for decision are cross motions for summary judgment on Plaintiffs' Stewart & Jasper Orchards', et al., (Stewart Plaintiffs) sixth claim for relief, which alleges that "because the delta smelt is a purely 'intrastate species,' and because it has no commercial value," the application of sections 7(a)(2) and 9 of the ESA to the delta smelt is an "invalid exercise of constitutional authority" under the Commerce Clause...

EXCERPT: although Congress had multiple motivations for passing the ESA, including ethical and aesthetic considerations, the ESA has strong underpinnings in market regulation. Among other things, one of the ESA's regulatory goals is to protect a monetarily valuable natural resource, our planet's biodiversity, which is proclaimed by express Congressional findings. "To allow extinction of animal species is ecologically, economically, and ethically unsound." 119 Cong. Rec. 25,668 (1973) (statement of Sen. Tunney). "The value of this genetic heritage is, quite literally, incalculable.... From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations." H.R. Rep No 93-307, at 57. It is "hard to imagine a stronger expression of Congress' belief that species preservation substantially affects the national economic interest." Bldg. Indus. Ass'n of Superior Cal. v. Babbit, 979 F.Supp. 893, 907 (D.D.C.1997)...  Protecting "biodiversity" as a whole cannot be accomplished by protecting only those species that are mobile enough to cross state lines or those whose ranges happen to extend over multiple states. Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity. The application of section 7 to the facts of this case is a valid exercise of Congress' Commerce Clause power.

CONCLUSION: All of Plaintiffs' and Amici's contentions and arguments have been fully considered. They are not new and have been universally unsuccessful before other courts. The analysis here is not different...  (1) Plaintiffs do not have standing to contest the application of ESA � 9, and, even if they did, arguendo, any such claim would be unripe and if the merits reached, the section 7 analysis is equally applicable to reject the claim as a matter of constitutional law on the merits. Plaintiffs' motion for summary judgment is DENIED...  (2) A section 7 claim is raised in the complaint, Plaintiffs have standing to bring such a claim, and Federal Defendants' and Defendant Intervenors' motions for summary judgment focus on section 7. These motions are ripe for adjudication...  (3) The application of section 7 to require federal agencies to evaluate effects of planned Project operations on the delta smelt is a valid exercise of Congress' Commerce Clause power. Federal Defendants' and Defendant Intervenors' motions for summary judgment on Plaintiffs' sixth claim for relief are GRANTED.


The export of Northern California’s water from Sacramento Delta to benefit agricultural areas west of San Joaquin Valley, accomplished in part by the Tracy Pumping Plant (pictured above) kills millions of  fish (including California's delta smelt) and involves billions of dollars (and don't forget, many millions in attorney's fees).  Photo from IndyBay.org
]]> Wed, 28 Oct 2009 01:14:32 +0000 0 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X92YE Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X92YE http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X92YE 74 Fed. Reg. 55177 / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 90-day Finding on a Petition To List the American Dipper in the Black Hills of South Dakota as Threatened or Endangered
ACTION: Notice of 90-day petition finding.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the distinct population segment (DPS) of American dipper (Cinclus mexicanus unicolor) in the Black Hills of South Dakota as threatened or endangered and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). For the purposes of this finding, we evaluated whether the petition presents substantial information to indicate whether the petitioned entity (the American dipper in the Black Hills of South Dakota) is a listable entity. Based on our review of the best available scientific and commercial information, we conclude that the American dipper in the Black Hills of South Dakota is not a listable entity under the Act. Because the petition did not present substantial information that the American dipper in the Black Hills of South Dakota is a DPS, we did not evaluate whether the information contained in the petition regarding threats was substantial. Therefore, we will not initiate a status review to determine if listing this subspecies is warranted in response to this petition. However, the public may submit to us new information  concerning the subspecies, its status, or threats to it at any time.


The American dipper is a small, gray passerine bird that inhabits western Canada, Mexico, and the western United States, including the Black Hills of South Dakota. The American dipper utilizes permanent, clean, cold, and swift mountain streams with abundant and healthy populations of benthic macroinvertebrates, the dipper’s prey.  Photo from South Dakota Department of Game Fish and Parks.

EXCERPT: On October 2, 2008, we received a petition dated September 29, 2008, requesting that we list the DPS of American dipper in the Black Hills of South Dakota as threatened or endangered under the Act and designate critical habitat for that DPS. In addition, the  petition, submitted by the Biodiversity Conservation Alliance, Center for Native Ecosystems, Native Ecosystems Council, and Prairie Hills Audubon Society, requested emergency listing of the DPS...  we find that the petition does not present substantial scientific or commercial information to indicate that listing the American dipper in the Black Hills of South Dakota may be warranted. This finding is based on the lack of substantial scientific evidence to indicate that the American dipper in the Black Hills of South Dakota may meet the elements of being a valid DPS and, therefore, a listable entity under the Act. Although the population appears to meet the criteria for being discrete, neither the information in the petition nor the information readily available in our files suggests that the Black Hills dipper population may be significant in relation to the remainder of the taxon. Therefore, we conclude that the American dipper in the Black Hills of South Dakota does not satisfy the elements of being a DPS under our 1996 policy and, therefore, is not a listable entity...
]]> Wed, 28 Oct 2009 00:48:33 +0000 0 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3TX5 Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3TX5 http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3TX5 74 Fed. Reg. 53683 / Vol. 74, No. 201 / Tuesday, October 20, 2009 / Proposed Rules
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration / 50 CFR Part 223
Endangered and Threatened Wildlife and Plants; Proposed Threatened and Not Warranted Status for Distinct  Population Segments of the Spotted Seal
ACTION: Proposed rule; 12–month petition finding; status review, request for comments

SUMMARY: We, NMFS, have completed a comprehensive status review of the spotted seal (Phoca largha) under the Endangered Species Act (ESA). Based on the findings from the status review and consideration of the factors affecting this species, we conclude the spotted seal exists as three (3) distinct population segments (DPS) within the North Pacific Ocean. These are the southern, Okhotsk, and Bering DPSs. Based on consideration of information presented in the Status Review, an analysis of the extinction risk probabilities for each of these DPSs, and assessment of the factors in section 4(a)(1) of the ESA, we have determined the southern DPS is likely to become endangered throughout all or a significant portion of its range in the foreseeable future, and should be listed as  a threatened species. The Okhotsk and Bering Sea DPSs are not in danger of extinction nor likely to become endangered throughout all or a significant portion of their ranges in the foreseeable future. Accordingly, we are now issuing a proposed rule to list the southern DPS of the spotted seal as a threatened species. No listing action is proposed for the Okhotsk and Bering Sea DPSs. Because the southern DPS occurs outside the United States, no critical habitat can be designated. We request comments and information related to this proposed rule and finding.
DATES: Comments and information regarding this proposed rule must be received by close of business on December 21, 2009.


The spotted seal (also known as the largha seal) is a close relative of the harbor seal (Phoca vitulina). Spotted seals are associated with ice during the spring breeding season. From March through May, spotted seals are principally found within the frontal zone of sea ice in the Bering Sea, Sea of Okhotsk, and Japan Sea.  The main concern about the conservation status of spotted seals stems from the likelihood that their sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming and sea ice decline in the foreseeable future. A second major concern, related by the common driver of carbon dioxide (CO2) emissions, is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem.  Photo of spotted seal adult by Josh London from NOAA Bering Sea Ice Expedition.

***

74 Fed. Reg. 53889 / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Rules and Regulations
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration / 50 CFR Parts 223 and 622
Sea Turtle Conservation; Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic
ACTION: Final rule.

SUMMARY: This rule implements an area closure and associated gear restrictions applicable to the bottom longline component of the reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico to reduce incidental take and mortality of sea turtles. Specifically, this rule prohibits the use of bottom longline gear for the harvest of reef fish shoreward of a line approximating the 35–fathom depth contour in the eastern Gulf of Mexico and limits bottom longline vessels operating in the reef fish fishery east of longitude 85°30′W to 1,000 hooks onboard, of which only 750 may be actively fished or rigged for fishing. DATES: This rule is effective on October 16, 2009.


All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA).  Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related activities in the Gulf of Mexico and along the Atlantic seaboard.  The purpose of this rulemaking is to balance the continued operation of the bottom longline component of the reef fish fishery while maintaining adequate protective measures for sea turtles until the Council’s preferred management strategy can be implemented.  Green (Chelonia mydas) turtles (picture above by  Caroline S. Rogers, USGS, available from NOAA) are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.
]]> Thu, 22 Oct 2009 22:06:32 +0000 0 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3VXX Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3VXX http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7X3VXX 74 Fed. Reg. 53999 / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Buena Vista Lake shrew
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise our designation of critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) under the Endangered Species Act of 1973, as amended (Act). Our proposal is the same as the proposed critical habitat we published on August 19, 2004 (69 FR 51417). In total, approximately 4,649 acres (ac) (1,881 hectares (ha)) occur within the boundaries of the proposed revised critical habitat designation. The proposed revised critical habitat is located in the Central Valley floor of Kern County, California. DATES: To allow us adequate time to conduct this review, we request that we receive information on or before December 21, 2009.

EXCERPT: On October 2, 2008, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Eastern District of California challenging the Service’s designation of critical habitat for the shrew (Center for Biological Diversity v. United States Fish and Wildlife, et al., Case No. 08-CV-01490-AWI-GSA). A July 9, 2009, settlement agreement stipulates the Service will, within 90 days of the signed agreement, submit to the Federal Register for publication a new proposal of critical habitat for the species which encompasses the same geographic area as the August 19, 2004, (69 FR 51417) proposed designation. Additionally, the Service agreed to submit to the Federal Register for publication, on or before March 22, 2012, a final determination on revised critical habitat for the shrew. The current designation of critical habitat for the Buena Vista Lake shrew (70 FR 3438, January 24, 2005) remains in full force and effect until we publish a new final rule revising critical habitat for the shrew.

KEITHINKING: The litigation stemmed from the Center for Biological Diversity's fundamental distrust of the Bush Administration and the changes it made to the final rule compared to a much more protective proposed rule. See CBD press release.  Photo below from YubaNet.com, attributed to US Fish & Wildlife Service (but perhaps actually from CBD?)

]]> Thu, 22 Oct 2009 21:50:00 +0000 0 Federal Register http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4VT Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4VT http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4VT  “FWS represents only about 7 percent of total federal expenditures related to the Endangered Species Act,” John Platt recently explained in his Scientific American article reviewing a 2007 U.S. Fish & Wildlife Service report on ESA expenditures.  “The Federal Highway Association spent $34,977,711. The Army spent $45,093,322, while the Army Corps of Engineers spent $211,976,370. The Department of Energy's Bonneville Power Administration spent a whopping $533,223,325. Even the Bureau of Indian Affairs spent $75,000.”  

Predictably, salmonid species were also a big part of those 2007 expenditures (costs now exceed $1 billion annually.)  And salmonids will continue to be big bucks in 2009-2010, as demonstrated by the estimated $200 million cost for tearing down four dams along the Klamath River.  See New York Times  And don't forget about the potentially massive costs of altering the hydroelectric dams associated with the Federal Columbia River Power System and the Columbia and Snake Rivers.  See Heartland Institute article.  

So is all the money well spent?  Fiscal conservatives will soon point to evolving science, and Matthew Preusch’s article in The Oregonian explaining that “some salmon are evolving to survive in Northwest rivers that have been radically altered by dams.”  Then again, these types of watershed restoration projects probably deserve high fiscal prioritization, given the benefits not only to salmonids but also to the many other riparian dependent species.  In contrast, many other species receive disproportionate dollars and attention due to their “charismatic megafauna” status, and thanks to the lawyers who represent them, a point emphasized by SFist.com's protest on the excessive funding for sea lions and the UK Guardian's discussion of pandas in zoos.  

But for the less-financially minded people who want to protect species, no matter what the cost, their lawyers have good reason to turn to the judiciary.  Sure, on rare occasion, governmental action is motivated by media attention, as with the recent efforts to control the problem of invasive snakes.  See U.S. Geological Survey report  and related article in Wired.    See also, Paw Talk article on Exotic Consequences.  (And immediate action is certainly needed, as the USGS report states that “the greatest environmental impact of invasion by giant constrictors would be predation on endangered species, either via further endangerment or outright extinction.”)  Sometimes, government is also motivated to fix its own mistakes, as with the ongoing effort by the Department of Interior to do a mea culpa for the abuses by a former Bush Administration official.  See recent Denver Post about how the "feds take a fresh look at once-rejected protections," and prior ESA blawg story and links.  But much too often, litigation settlements and court-orders determine the docket of ESA-related actions taken by the Federal government, as the recent news coverage shows, once again:  

• Wolf hunting.  Citing the loss of hunting opportunities and the “threat of problem wolves,” the National Rifle Association is asking a federal court judge to allow the group to join a lawsuit regarding the removal of wolves from the list of animals protected under the Endangered Species Act in Montana and Idaho.  See the Helena-based Independent Record.  (Evidence suggests that wolves are only a limited threat to livestock; for example, a Minnesota news site reported today that a federal program that reimburses Minnesota farmers for livestock lost to wolves will receive $700,000 this coming year.)

• Polar bear critical habitat.  Polar bears remain the iconic species of global climate change, and with much litigation underway, the FWS rulemaking effort to establish critical habitat for the species continues to garner national attention, including a recent New York Times story.   The proposed rule is currently undergoing review within the White House Office of Management and Budget.

• Listing penguin species.  In another Scientific American article,  John Platt discusses the plight of the penguin, and the imminent lawsuit planned by the Center for Biological Diversity to force a decision on the previously proposed listing of the species (a proposed made by the Bush administration).  See also, ESA blawg.

• Yellowstone Grizzly bear listing status.  In September, Judge Malloy reversed a FWS judgment call and concluded that Yellowstone grizzly bears should retain their status as listed species, because “promises, or good intentions for future actions” were “unenforceable and non-binding,” and because whitebark pine nuts, a key source of bear nutrition, were in decline.  See New York Times blog.

• Leatherback sea turtle critical habitat.  Oceana sued NOAA for failing to designated critical habitat for endangered leatherback sea turtles, seeking more protection for a broad swath of ocean feeding areas and migration routes, and ensuring additional scrutiny of harm to turtles from offshore wind and wave energy, coastal power plants, or pollution from agricultural runoff.  Under the terms of a settlement agreement, an initial decision is expected by December 4, 2009.  See AP story.   But the Sarasota Herald Tribune also notes that 2009 also marked a dismal nesting year for loggerhead sea turtles, continuing a downward trend.

Photo of a leatherback turtle from Carl Safina: Hope and Inspiration for the Oceans.
]]> Fri, 16 Oct 2009 02:26:51 +0000 1 ESA musings http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4D7 Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4D7 http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-7WV4D7 74 Fed. Reg. 52612 / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the Arroyo Toad (Anaxyrus californicus)
ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise designated critical habitat for the arroyo toad (Anaxyrus californicus), pursuant to the Endangered Species Act of 1973, as amended (Act). The previous final rule designated 11,695 acres (ac) (4,733 hectares (ha)) of critical habitat and was published in the Federal Register (FR) on April 13, 2005. We now propose to designate approximately 109,110 ac (44,155 ha) of lands located in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, Orange, and San Diego Counties, California, which, if finalized as proposed, would result in an increase of approximately 97,415 ac (39,422 ha) of critical habitat.

KEITHINKING: In seeking public comment, one of the questions repeatedly posed by FWS is whether the potential exclusion from final revised critical habitat is or is not appropriate and why, for tribal lands, Department of Defense lands, and other non-Federal lands covered by various habitat conservation plans.  For more information, visit Center for Biological Diversity and The Press-Enterprise (covering Riverside County)

EXCERPT: the PCEs specific to the arroyo toad include rivers or streams with hydrologic regimes that supply water to provide space, food, and cover needed to sustain eggs, tadpoles, metamorphosing juveniles, and adult breeding toads. Breeding pools must persist a minimum of 2 months for the completion of larval development…  less than 12 in (30 cm) deep; with areas of flowing water with current velocities less  than 1.3 ft per second (40 cm per second).



Arroyo toads (pictured above from Canyon Land Conservation Fund) have been extirpated from approximately 75 percent of the habitat they originally occupied.  At present, arroyo toads are limited to isolated populations primarily in the headwaters of coastal streams, extending from Monterey County southward to San Diego County, and extending eastward into the riparian environments of San Bernardino and Riverside Counties.  California red-legged frogs, (pictured below, from Wikipedia) inhabit dense, shrubby or emergent riparian vegetation and still or slow-moving perennial and ephemeral water bodies, has disappeared from 70% of its range, and is now only found in about 238 streams or drainages in 23 counties of California.  Ironically, the species is an important food source for the endangered San Francisco Garter Snake.



74 Fed. Reg. 51825 / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the California Red-Legged Frog (Rana aurora draytonii)
ACTION: Proposed rule; reopening of comment period, availability of revised draft economic analysis, and amended required determinations.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our September 16, 2008, and April 28, 2009, proposal to revise the designation of critical habitat for the California redlegged frog under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a revised draft economic analysis (DEA). We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed revision of critical habitat and the associated revised DEA. Comments previously submitted on this rulemaking do not need to be resubmitted. These comments have already been incorporated into the public record and will be fully considered in preparation of the final rule.

FOR MORE INFO: visit Central Valley Business Times

***

74 Fed. Reg. 51988 / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter
ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the southwest Alaska Distinct Population Segment (DPS) of the northern sea otter (Enhydra lutris kenyoni) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 15,164 square kilometers (km2) (5,855 square miles (mi2)) fall within the boundaries of the critical habitat designation. All the critical habitat is located in Alaska. DATES: This rule becomes effective on November 9, 2009.


The value of sea otter foraging habitat is inversely proportional to water depth. For example, research in southeast  Alaska shows that 84 percent of foraging occurs in depths between 2 and 30m.  NOAA applied the 20-m (65.6-ft) depth contour, and the areas designated as critical habitat include the intertidal zone, as well as adjacent shallow waters where otters may feed while being relatively protected from marine predators.  Sea otter photo from WikiMedia.

KEITHINKING: NOAA repeatedly refused to exercise its discretion to exclude areas from critical habitat, finding that the inhabited communities in southwest Alaska, U.S. Navy, and State of Alaska would bear  insignificant costs as a result of the designation of critical habitat.  For more information, visit AP wire or Center for Biological Diversity

***

74 Fed. Reg. 52066 / Vol. 74, No. 194 / Thursday, October 8, 2009 / Proposed Rules
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Part 17
Endangered and Threatened Wildlifeand Plants; Revised Critical Habitat for the Preble’s Meadow Jumping Mouse (Zapus hudsonius preblei) in Colorado
ACTION: Proposed rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise designated critical habitat for the Preble’s meadow jumping mouse (Zapus hudsonius preblei) in Colorado, where it is listed as threatened in a significant portion of the range (SPR) under the Endangered Species Act of 1973, as amended (Act). The proposed revised critical habitat is located in Boulder, Broomfield, Douglas, El Paso, Jefferson, Larimer and Teller Counties in Colorado. Approximately 418 miles (mi) (674 kilometers (km)) of rivers and streams and 39,142 acres (ac) (15,840 hectares (ha)) fall within the boundaries of the proposed revised designation. The proposed revised designation would therefore add 184 mi (298 km) of rivers and streams and 18,462 ac (7,472 ha) to the existing critical habitat designation of 234 mi (376 km) and 20,680 ac (8,368 ha).
DATES: To ensure that we are able to consider your comments and information, we request that you provide them to us by December 7, 2009.


The Preble's meadow jumping mouse (photo, and related article from NRDC's onearth) constructs day nests composed of grasses, forbs, sedges, rushes, and other available plant material. They may be globular in shape or simply raised mats of litter and are most commonly above ground but also can be below ground. They are typically found under debris at the base of shrubs and trees or in open grasslands. An individual mouse can have multiple day nests in both riparian and grassland communities  and may abandon a nest after approximately a week of use .  Apparent hibernation nests of the PMJM have been located both within and outside of the 100-year floodplain of streams

KEITHINKING:  The Obama Administration is reopening numerous past decisions of the Bush Administration for further public review.  The Preble’s Meadow Jumping Mouse is just one example.  See story in the Salt Lake Tribune.   This particular proposal would double the critical habitat for the mouse, and responds to allegations of past political interference with sound science.  See also, MSNBC and Denver Post.  Critics of the designation fear its potential effects upon regional growth in Colorado.  See Colorado Springs based Gazette.com
 


]]> Fri, 16 Oct 2009 02:00:17 +0000 0 Federal Register Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States Licensenonadult