A thoughtful and independent Endangered Species Act law blog Fri, 10 Feb 2012 08:23:18 +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/Merger Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/Merger http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/Merger The National Marine Fisheries Service (NMFS) manages and regulates the nation’s fisheries. International trade in fisheries contributes $70 billion annually to our nation's economy, so NMFS, in conjunction with other agencies, plays an important role in ensuring sustainability of our oceans. As President Obama lightheartedly explained in the 2011 State of the Union: "The Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated once they're smoked."

It was more than just a laugh line. One year later, in January 2012, the President announced his plan to consolidate government and to merge NMFS (pronounced “Nymphs”) into the Department of Interior. See The Hill. But as President Truman once said, "the only thing new in the world is the history you don't know." So consider the history: in 1966, the Marine Resources and Engineering Development Act launched a new national program in marine science and ocean exploration. Related proposals to create a Department of Natural Resources failed, so the National Oceanic and Atmospheric Administration (NOAA) was eventually created within the Department of Commerce. NMFS, an entity within NOAA, also merged portions of the Department of Interior's Bureau of Sport Fisheries and Wildlife with the Department of Commerce's Environmental Science Services Administration. In other words, the recent merger proposal is a back to the future moment in federal natural resource management.

The proposal reveals a tension between efficiency and effectiveness. Efficiency concerns favor a merger of Interior and NMFS. Expensive leadership positions could be reduced, less interagency coordination will be needed, and some duplication of functions could be eliminated. Over time, a Department of Natural Resources might even become reality. One department could manage and regulate all our nation’s resources, from sea to shining sea, on subjects ranging from ocean energy to mountaintop mining.  Effectiveness, however, suggests that thoughtful caution is warranted, for three reasons.

First, the effort to reduce duplication could lead to a loss of niche expertise. Huge differences exist between managing mountains, forests, deserts, prairies, wetlands, estuaries, coral reefs and the oceans. Moreover, the White House is actively implementing the National Ocean Policy, seeking to transform our thinking about ocean management. These activities all require specialized expertise. And while the divide of expertise between Interior and NMFS can be frustrating, it also makes a degree of sense. Even in elementary earth science thinking, concepts divide between land, sea or air. If the Department of the Interior serves the land, then why merge NOAA into Interior? Why not a separate Department of Oceans and Atmosphere?

Next, the realities of regulatory independence must be acknowledged. No longer an independent agency within the Department of Commerce, a reorganized NMFS would share walls with governmental entities responsible for dams, mining, grazing and ocean energy. In other words, when NMFS exercises its regulatory authority, for example, by implementing the Endangered Species Act and saying “no” to an industry activity supported by another entity within the Department of Interior (think oceanic oil exploration), NMFS will confront the same difficult interdepartmental politics that already affect the Fish & Wildlife Service regulators. (This is a major concern to the Natural Resources Defense Council.) However, it is also true that regardless of who resolves those inter-agency tensions -- the Secretary of Interior, or the Council on Environmental Quality -- all of them serve the President and his policies.

Finally, and perhaps most significantly, budgetary politics must be considered. As an entity within the Department of Commerce, focused on a job-producing industry, NMFS maintains respectable funding, and high scientific standards, with a budget of roughly $1 billion in 2010. By comparison, even though Americans love our National Parks and endangered species, the National Park System and the Fish & Wildlife Service struggled to meet their mandates with annual budgets in 2010 of $2.7 billion and $1.6 billion, respectively. Would NMFS, when it appears before a whole new group of Congressional committees, as part of a $12 billion Department of Interior, still be able to compete with these other needs and priorities for its slice of the federal funding pie chart?

Perhaps all these concerns can be overcome, and the realities of our federal budget necessitate the merger of NMFS into the Department of Interior. But this dialogue over the structure of government will have lasting impact on our oceans, our fisheries, and our endangered and threatened aquatic species.


Photo of threatened olive ridley sea turtles from the State of Alaska Department of Fish & Game. While the President told his 2011 State of the Union joke about the management of endangered salmon, it becomes more accurate if told about sea turtles: "FWS manages turtles on land. NMFS manages them at sea. Imagine how hard it is to make soup?"
___

Keith W. Rizzardi chairs the Marine Fisheries Advisory Committee, teaches environmental law at St. Thomas University School of Law in Miami Gardens, and writes about the Endangered Species Act on Twitter @ESAlawyer
]]> Sun, 22 Jan 2012 05:03:38 +0000 0 ESA musings http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7J2 Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7J2 http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7J2 TWEETS FROM #ESAlawyer (Jan. 2012)

Case law:

20 Jan. Complex Casitas case involves ESA, public trust & Cal. H2o law. bit.ly/wZ32i9 Fish don't really need water, do they?

U.S. Fish & Wildlife Service

21 Jan. FWS lists 3 pythons, 1 anaconda as invasive species. http://1.usa.gov/xURGdK Maybe they'll stop eating the endangered Key Largo woodrats now?

21 Jan. "Endangered everything" not an option, so FWS offers National Fish, Wildlife, and Plants Climate Adaptation Strategy 1.usa.gov/zZXsVB

20 Jan. FWS reopens comment on 1.9 acres of critical habitat for endangered Chupadera Springsnail in Socorro County, New Mexico 1.usa.gov/zimkOI

19 Jan. it's official! FWS announces establishment of Everglades Headwaters National Wildlife Refuge and Conservation Area. 1.usa.gov/y2jhty

19 Jan. FWS: Recovery Plan for Hawaiian Waterbirds 1.usa.gov/wv1xr9

17 Jan. Lesson in predation: exotic pythons eat endangered wood rats. Will new "injurious species" announcement help? bit.ly/yi7kpO

17 Jan. Citing peer review opinion divide, FWS seeks comment re: proposed Mississippi gopher frog critical habitat 77 FR 2254 1.usa.gov/w7QhuY

15 Jan. Due to taxonomy changes, FWS seeks comment re: Pac.Coast population of western snowy plover crit.habitat 77 FR 2243 1.usa.gov/wsCTGV

13 Jan. Shiloh IV Wind Project proposes Habitat Conservation Plan for Cal. tiger salamander: 77 FR 1498 1.usa.gov/AtyERv & 1.usa.gov/wh0JwB

13 Jan. FWS may list humbolt marten (a West coast weasel) due to timber&fire, disease, habitat mngt & at-risk small populations 1.usa.gov/wCYR77

12 Jan. San Diego County Water Authority signs multiple species conservation plan to ease ESA permitting for 63 covered species bit.ly/xbi5LS

NOAA Fisheries

13 Jan. Species vs. National Security: NOAA on taking marine mammals incidental to U.S. Navy sonar operations 77 FR 842 see 1.usa.gov/wORyVO

12 Jan. NOAA: are beluga whale populations crashing? bit.ly/yE2wMl Is Right Whale Ship Strike Reduction Rule working? 1.usa.gov/AyucPF

12 Jan. NOAA announces recovery plan for Cal. Steelhead DPS 1.usa.gov/wLa8Qh Final plan online soon, draft plan at 1.usa.gov/ywtUAu

11 Jan. NOAA says no to delisting So.Ore./No.Cal. Evolutionarily Signif. Unit of coho salmon b/s insufficiently specific data 1.usa.gov/xoBeBP

Musings & More

19 Jan. Extirpation, maybe even mass extinction; fungus killed up to 6.7M bats, reports USA Today usat.ly/xQXO54

15 Jan. Not just a joke: Will NOAA join FWS? bit.ly/AoLVtz Capitol hill unsure. bit.ly/wrdfBZ NRDC opposed. bit.ly/A9ucpi

14 Jan. Relentlessly unsatisfied critics give Obama C- on animal welfare. huff.to/y16df7 Maybe they'd prefer Ron Paul? bit.ly/wmoJ0R

14 Jan. Western states petition for ESA reform bit.ly/xneo8a could succeed with this House of Representatives bit.ly/ABu5Bv

14 Jan. International aspects of ESA: monkey meat nyti.ms/wGbYft and elephant ivory bit.ly/AfWFkY

14 Jan. Hi readers. My career & ESAblawg.com remain in transition. Tweet renamed: @ESAlawyer Visit Earthblawg.com at St.Thomas Univ.


]]> Sun, 22 Jan 2012 04:41:38 +0000 0 Tweets http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7AD Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7AD http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR7AD Recent tweets from #ESAlawyer:

Gingrich: Environmental stewardship is everyone’s responsibility... Despite flaws...ESA is essential conservation tool bit.ly/yLAdSY

Huntsman: Conservation is conservative. I am not ashamed to be a conservationist. bit.ly/Avxl0c

Paul: I can't find endangered species written in the Constitution and I don't think that's a federal function. bit.ly/wmoJ0R

Perry: need federal-state partnership with landowners & more bit.ly/wIgLxj don't prioritize birds over people bit.ly/w4nDEt

Romney: Cost benefit analysis, lead time for corporate compliance, marketplace orientation mi.tt/yFnCTu

Santorum: ESA is poorly crafted legislation. http://bit.ly/xNYK37

]]> Sun, 22 Jan 2012 04:29:21 +0000 0 Tweets http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR6SN Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR6SN http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8QR6SN Hi everyone, ESAblawg.com is back.

2011 was challenging; an abundance of Endangered Species Act announcements and litigation, plus my own professional chaos, led to a hiatus.  But 2012 comes with a new professional path, and a new plan for ESA blawg. First, my path: I'm now a law professor and Assistant Director of the LLM Program in Environmental Sustainability at St. Thomas University School of Law, in Miami Gardens, FL.  In addition, I was recently elected Chair of the Marine Fisheries Advisory Committee, and I am serving as a consultant on administrative and environmental law issues to Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, FL.  Given these many hats, I needed to make ESAblawg a bit more contained.  So I've got a three part plan.  

1. Microblogging.  "Routine" items related to the Endangered Species Act, such as Federal Register announcements and many U.S. District Court case references, will be published on Twitter at #ESAlawyer  

2.  Delegating.  Law students at St. Thomas University are now working on Earthblawg.com, which will become a useful resource, not just on the ESA, but on other wildlife laws too.

3.  Focusing.  On ESAblawg.com, I intend to publish more in-depth material and monthly musings on the pro's, con's and realities of the Endangered Species Act.

And now, back to work...

Thanks for reading, still.

Keith
]]> Sun, 22 Jan 2012 04:04:11 +0000 0 About ESAblawg http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KB4ZD Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KB4ZD http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KB4ZD Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. �228.4(a) (2004).  

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.



SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes...  The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.
]]> Mon, 01 Aug 2011 02:32:32 +0000 0 U.S. Court of Appeals (9th Cir.) http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6JQ Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6JQ http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6JQ In re: Polar Bear Endangered Species Act Listing and �4(d) Rule Litig., Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C., June 30, 2011).

BACKGROUND: Several lawsuits challenging the Fish and Wildlife Service's (the Service) 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA), and to issue a rule under Section 4(d), were consolidated into multi-district litigation in the D.D.C.  On June 30, the court granted summary judgment to the Service and upheld the listing against all challenges.  Plaintiff Center for Biological Diversity's (CBD) claims against the 4(d) rule are still pending.  The focus of the litigation was mainly on the distinction between the listing categories "threatened" and "endangered" and also on reliability of the state of climate change science when predicting the impacts of climate change on ice habitat of the polar bear.  Following are the court's holdings and analysis.

RULING: The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing.  Center for Biological Diversity (CBD), Natural Resources Defense Council, and Greenpeace (collectively, CBD) claimed that the Service wrongfully concluded that the polar bear did not qualify for endangered status as of 2008.  The Service had maintained that a species must be at "imminent risk" of extinction to qualify for endangered status, which it had not articulated in the 2008 listing rule, but had stated in a "Supplemental Explanation" required from previous remand.  The Service's view was that a species be "currently on the brink of extinction in the wild" and that this understanding was not intended to be narrow or inflexible, as the ultimate determination would depend "on the life history and ecology of the species, the nature of the threats, and the species' response to those threats."  The Supplemental Explanation also described four categories of situations that had been found to satisfy that test in the past and applied each concept to the facts in the polar bear record.  The court applied Chevron deference to the Supplemental Explanation and held that, as applied to the polar bear, the Service's definition of an endangered species represented a permissible construction of the ESA since "Congress did not seek to make any factor controlling when drawing the distinction [between threatened and endangered]" and that there is a "temporal element to the distinction between the categories."

Joint plaintiffs claimed that the polar bear should not have been considered threatened at the time of listing because the Service failed to demonstrate that the polar bear is sufficiently "likely" to become endangered, and the Service arbitrarily selected a 45-year time frame as the "foreseeable future" for the polar bear when a shorter time period would have been more appropriate.  Plaintiffs had argued that a demonstration of 67-90% likelihood was required to establish whether the polar bear would become an endangered species in the foreseeable future, since a large part of the Service's record had relied on Intergovernmental Panel on Climate Change (IPCC) reports that had coincidentally established meanings for the terms "likely" and "very likely."  The court rejected plaintiffs' argument here and stated that neither Congress nor the Service had adopted an official interpretation of "likely," and the Service was not bound to IPCC definitions simply because it had relied on other scientific portions of the IPCC reports.  Plaintiffs had also argued that the Service should have been limited to a shorter time period than the selected 45-year time frame due to the inability to foresee what future regulatory mechanisms may be in place.  The Service had selected 45 years because it again relied on the IPCC report that predicted warming (regardless of choice of emissions scenario) before the point at which projections diverge significantly.  The court upheld the 45-year time frame and emphasized that the ESA's listing provisions require the Services only to consider existing regulatory mechanisms.  In addition, the court noted that Congress and the Services have not yet defined the term "foreseeable future," that a bright line rule was not appropriate, and that the definition should be flexible depending on species and best available science.

RULING: The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualified As a "Distinct Population Segment."   Plaintiffs Center for Biological Diversity (CBD), Safari Club International and Safari Club International Foundation (SCI), and Conservation Force et al. (CF) claimed that the service wrongfully concluded that no polar bear population or ecoregion is "discrete."  The court upheld the Services determination regarding distinct population segments (DPSs) (since it followed formal policy for designating a DPS that had been promulgated through notice-and-comment rulemaking and upheld by prior courts) and found that the Service "articulated a reasonable basis for its conclusion that no polar bear population or ecoregion is meaningfully 'discrete' for the purposes of DPS designation: even if there are behavioral differences among polar bear population segments, polar bears are universally similar in one crucial respect - namely, their dependence on sea ice habitat and negative response to the loss of habitat."

RULING: The Service Did Not Arbitrarily Fail to Consider Other Listing Factors.  Joint plaintiffs also argued that the listing rule should be overturned because of deficiencies in the Service's analysis of several of the listing factors the ESA requires an agency to consider:  1)  that the service failed to "take into account" foreign conservation efforts to protect the polar bear;
2)  that the service failed to rely on the "best available science"; 3) that the service failed to consider whether the threat of overutilization warranted listing the polar bear as "endangered"; and 4) that the service wrongly concluded that existing regulatory mechanisms will not protect polar bears despite anticipated habitat losses.  The court found that FWS did articulate a rational basis for each specific listing determination and the agency explained how the categories apply in the context of the polar bear and the state of its science.  Notably, the court found instances in the record where the Service did take foreign conservation efforts into account, but those efforts concentrate mostly on overharvest and disturbance and would not be sufficient to offset ice loss, which is the primary threat to the polar bear's survival.  In terms of "best available science," plaintiffs argued that climate change predictions were uncertain, pointed to weaknesses in models and claimed that the Service used a partial dataset for the Southern Beaufort Sea polar bear population.  The court found that best available science is to be relied upon even if it is uncertain or even inconclusive and this merely prohibits the Services from disregarding available scientific evidence that is better than the evidence it relied upon.  Plaintiffs did not challenge the Service's models as best available science, but appeared to take the position that the Service should have drawn different conclusion from those models.

RULING: The Service Followed Proper Rulemaking Procedures.  Plaintiff State of Alaska had claimed that FWS failed to satisfy its obligation under Section 4(i) of the ESA to provide a “written justification” explaining why it issued a final rule that conflicts with comments it received from the State.  FWS had sent a lengthy letter to the State of Alaska in  response to its comments, which satisfied 4(i), even if Alaska “may have preferred a different or more detailed explanation.”  The court concluded that 4(i) requires only that FWS provide a “written justification for failure to adopt regulations consistent with the agency’s comments or petition,” a response which is procedural only.

EXCERPT: "As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science."
]]> Sun, 31 Jul 2011 03:51:31 +0000 0 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6CR Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6CR http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA6CR Defenders of Wildlife v. Jackson, CV 09-1814, 2011 U.S. Dist. LEXIS 62461 (D.D.C., June 14, 2011).

BACKGROUND: The U.S. Environmental Protection Agency (EPA) registered Rozol under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) on May 13, 2009 and did not consult with FWS before approving its registration.  

ISSUE: Plaintiffs, Defenders of Wildlife (Defenders) and The Natural Resources Defense Council (NRDC), sought both declaratory and injunctive relief under the ESA and sought an order declaring that EPA’s FIFRA registration of Rozol was not in accordance with the ESA because the EPA had failed to consult with FWS.  More specifically, Defenders requested an order requiring EPA to engage in formal consultation prior to issuing the registration.  The NRDC requested an order requiring the EPA to engage in and complete formal consultation prior to registering Rozol.  The EPA had begun consultation with FWS on September 30, 2010 (a week after the suit was filed) and had argued that plaintiffs’ claims were therefore moot.  Plaintiffs had argued that EPA remains in violation of the ESA until it finishes consulting with FWS and the court could provide an effective remedy by vacating the registration and ordering the EPA not to register Rozol without completing consultation.  

RULING: The court found that Defender’s request was moot because EPA had already begun consulting.  NRDC’s request, however, was not moot because consultation had not yet been completed and therefore an effective remedy would be possible and appropriate: the cessation of the use of a deadly chemical that may jeopardize the continued survival of endangered species until the EPA complies with the mandates of the ESA.  


According to Audubon of Kansas, a participant in the litigation, Rozol is a Poison that Keeps on Killing.  "The most disturbing element of Rozol (chlorophacinone) use is its hazard of secondary poisoning for predators that eat the poisoned animals. Prairie dogs poisoned with Rozol die from internal bleeding. In one non-sanctioned poisoning in South Dakota investigators gathered several hundred of the animals that were continuing to die above ground for three weeks after application." Image available from Audubon of Kansas
]]> Sun, 31 Jul 2011 03:41:58 +0000 0 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA65K Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA65K http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA65K In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, MDL 2179, 2011 U.S. Dist. LEXIS 63642 (E.D. La., June 16, 2011).

This multidistrict litigation consists of hundreds of cases arising from the April 20, 2010 explosion, fire, and capsizing of the Deepwater Horizon drilling unit owned by defendant Transocean.  The court created several pleading bundles.  This particular bundle consists of claims for injunctive relief brought against private parties by thousands of individuals.  Among the many claims for injunctive relief was a claim for violations of the Endangered Species Act.  Transocean filed a motion to dismiss the ESA claim (among others) which was granted.  The court ruled that plaintiffs lacked standing to bring their ESA claim because injuries alleged would not be addressed by injunction.  First, no benefit would be achieved because the well was capped and there is no ongoing release.  In addition, the private companies along with agencies have been and are cleaning up the Gulf of Mexico and plaintiffs do not assert any deficiency in these ongoing remediation efforts.  Finally, the claim depended on the actions of actors that were not before the court.  The Defendants do not unilaterally direct cleanup activities in the Gulf, which are under the control of federal agencies.  In addition, the court found plaintiffs' claims to be moot, that the defendants were not currently "in violation" of the ESA, and that there is no ongoing violation.


Dr. Brian Stacy, NOAA veterinarian, cleans a young Kemp's ridley turtle.  Photo by NOAA/GADNR available from NOAA Fisheries Office of Protected Resources.
]]> Sun, 31 Jul 2011 03:30:29 +0000 0 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5XG Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5XG http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5XG Defenders of Wildlife et al. v. U.S. Fish and Wildlife Service. Wildearth Guardians et al. v. U.S. Fish and Wildlife et al., CV 08-280 TUC DCB, CV 08-820 PHX DCB, 2011 U.S. Dist. LEXIS 66000 (D. Ariz., June 13, 2011).

BACKGROUND: In 1982, the U.S. Fish and Wildlife (FWS) Service issued the Mexican Wolf Recovery Plan.  In 1998 FWS issued a final rule, pursuant to section 10(j) of the ESA, to reintroduce an experimental population of Mexican wolves into the Blue Range Wolf Recovery Area (BRWRA).  FWS oversaw the recovery plan and reintroduction program for the species without complaint until 2003 when it entered into a Memorandum of Understanding with a number of federal, state, local, and tribal entities, including defendant U.S. Forest Service, to create the Adaptive Management Oversight Committee.  On April 30, 2005, the AMOC issued a document entitled the Mexican Wolf Blue Range Reintroduction Project Adaptive Management Oversight Committee Standard Operating Procedure 13, which was challenged by plaintiffs, Guardians and Defenders, in these consolidated cases.  In addition to suing FWS, Guardians also sued the U.S. Forest Service (USFS) for failing to confer with FWS to carry out a program to conserve the Mexican gray wolf.  On December 2009, a consent decree was entered between Defenders and the FWS.  FWS had filed a motion to dismiss Guardians’ claim against it, which was granted, because the court found the Consent Decree to provide all of the relief that Guardians sought.  


Image by Arizona Department of Fish and Game from the Arizona Master Naturalist News Web Log.

ISSUE: With most issues resolved by the Consent Decree, the sole remaining claim in the case was between Guardians and the U.S. Forest Service.  The court considered 1) whether the USFS’s failure to develop and implement its own conservation program for the Mexican wolf is in violation of ESA �7(a)(1); and 2) whether the USFS’s support of the FWS’s Mexican wolf program has hindered the conservation of the subspecies.  The court denied Guardians’ motion for summary judgment because Guardians did not prove that USFS had totally failed to act to conserve the Mexican gray wolf.

RULING: 7(a)(1) requires equal, not agency-specific, responsibility.  The USFS had worked with the FWS to reintroduce the wolf to carry out the recovery plan and from the beginning, USFS participated in the reintroduction process, such as locating release pens, public information, and area management after reintroduction.  From the inception of the reintroduction program in 2008, USFS was an active participant in many ways which included serving alongside FWS as a member of various interagency management teams.  Guardians had argued that USFS did not independently develop its own agency-specific conservation program in accordance with 7(a)(1) and therefore this amounted to inaction.  The court looked to two cases, Pyramid Lake Tribe v. U.S. Dept. of the Navy, 898 F.2d 1410 (9th Cir. 1990) and Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), to reach its conclusion that 7(a)(1) does not require USFS to develop its own independent agency-specific conservation program, but that it has responsibility equal to that of the FWS to use its authorities in furtherance of the conservation of the Mexican gray wolf and has an affirmative duty to carry out a program for the conservation of the Mexican gray wolf.

RULING: The USFS’s Interagency Cooperation and 7(a)(2) Biological Assessments did not Hinder Conservation of the wolf. Guardians had complained that the USFS’s contributions did not add anything to wolf conservation and took no affirmative steps to work with FWS to address the root of the problem:   years of consistent prioritization of uninterrupted implementation of the USFS’s domestic livestock grazing program over the mandate for Mexican gray wolf reintroduction.  The record reflected that USFS had imposed allotment-specific wolf conservation measures to cover wolf/livestock conflicts and that USFS consulted with FWS before issuing grazing permits in the BRWRA.  Therefore, the court did not find total inaction or failure on the part of the USFS to act to conserve the Mexican gray wolf.
]]> Sun, 31 Jul 2011 03:20:44 +0000 0 Case law http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5RV Keith Rizzardi http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5RV http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/KRII-8KA5RV Center for Native Ecosystems v. U.S. Fish and Wildlife Service, CV 08-cv-2744-WDM-BNB, 2011 U.S. Dist. LEXIS 61321 (D. Colo., June 9, 2011).

BACKGROUND: The Graham’s penstemon is an herbaceous perennial plant that occurs uniquely on exposed, raw shale knolls and slopes of western Colorado and eastern Utah with five core populations (four in Utah and one in Colorado).  Sixty percent of these plants occur on Bureau of Land Management (BLM) lands and, according to the BLM, the plant is in severe decline.  After recognizing in the proposed rule that the species had a “strong potential to become an endangered species in the foreseeable future if present threats increase and projected energy development scenarios occur,” and ignoring the advice of peer reviewers, the FWS failed to list the plant in their final rule.  


Image from the rare plants webpage by the Utah Native Plant Society

ISSUE:: Plaintiffs challenged the decision of the U.S. Fish and Wildlife Service (FWS) to withdraw the proposed listing of Graham’s penstemon as a threatened species under the ESA.  The plaintiffs asserted that 1) FWS failed to consider the combined impact of the identified threats to the plants; 2) FWS disregarded the best available information regarding the threat to the plant of oil and gas development, livestock grazing, and off-road vehicles (ORVs); and 3) FWS failed to demonstrate how claimed conservation measures to protect the plant were implemented and effective and improperly relied on future measures.  

RULING: The court granted plaintiffs’ petition for review of agency action.  First, the court failed to take judicial notice of the Pariette cactus listing – a plant occurring in the same area and subject to the same impacts as the penstemon.  Next, the court found that FWS did not consider the impact upon the species of all listing factors together.  FWS had addressed each of the five factors separately and in isolation, but the final rule was devoid of any discussion of the effect of combining two or more factors.  In addition, FWS did not consider best available scientific and commercial information because the rule did not adequately address concerns raised by the BLM, nor did it explain why the previously perceived threats of energy development, grazing, and ORV use had been significantly eliminated.  Plaintiffs had pointed to specific reports and available information from BLM scientists.  Furthermore, when making its listing determination, FWS had relied on the assumption that future draft conservation efforts would be effective when it was instead required to look at existing regulatory mechanisms.
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