Endangered Species & Wetlands Report

A federal judge in Washington, D.C., has declined to order the Interior Department to withdraw its legal filings in a case in Oregon challenging the Western Oregon Plan Revisions (WOPR) on BLM lands (Douglas Timber Operators v. Salazar, 09-1704 JDB, D.D.C.).

U.S. District Judge John Bates previously found that DOI Secretary Ken Salazar’s withdrawal of the Bush Administration WOPR was illegal.

Pacific Rivers Council, which has sued BLM in Oregon over the revisions, asked Bates to issue an order under the All Writs Act “to enjoin the Secretary from making similar filings relying on the vacated and remanded withdrawal.” PRC argued that “Interior seeks to
frustrate this Court’s order with filings in the Oregon case that rely on the vacated and remanded withdrawal.”

Here’s some background from the opinion, issued today (Dec. 23). The first paragraph discusses Bates’ previous opinion.

After considering the parties’ cross-motions for summary judgment, the court rejected the Department’s argument. The Court concluded that “the Secretary lacked inherent authority to withdraw the 2008 ROD without following the procedures required under the FLPMA, and his decision to do so violated the APA.” Id. at 259. The court therefore granted the plaintiffs’ motion for summary judgment with respect to the withdrawal of the ROD, vacating and remanding the withdrawal back to the Department.

In so holding, the court stated that “the legal issue of whether the Secretary’s failure to consult under the ESA prior to approving the ROD in December 2008 ‘was erroneous’ is not properly before this Court.” Id. at 258. Rather, the court stated that the question before it was ”whether the Secretary’s decision to withdraw the ROD without formal proceedings under the FLPMA or the APA based on his conclusion of ‘legal error’ was arbitrary and capricious or in excess of statutory authority.” Id. at 258 n.1. The court also noted that “three challenges to the BLM’s alleged failure to consult under the ESA were filed in the U.S. District Court for the District of Oregon shortly after the December 2008 approval of the ROD.” Id. (citing Oregon Wild v. Shepard, Civ. No. 3:09–00060 (D. Or. filed Jan. 15, 2009); Pacific Rivers Council v. Shepard, Civ. No. 3:09–00058 (D. Or. filed Jan. 15, 2009); Forest Serv. Emp. for Env’t Ethics v. U.S. Fish and Wildlife Serv., 09–6019 (D. Or. filed Jan. 22, 2009)). Finally, the court noted that “because this court is remanding the Secretary’s withdrawal decision, the future record may shed additional light on the reasoning of the Secretary regarding the Western Oregon Plan Revisions ROD.” Douglas Timber, 774 F. Supp. 2d at 261.

Press release is here and below.

Final rule from FWS Midwest Region wolf page

Salazar Announces Recovery of Gray Wolves in the Western Great Lakes, Removal from Threatened and Endangered Species List

States, tribes to assume management responsibility

12/21/2011

WASHINGTON — Secretary of the Interior Ken Salazar today announced that gray wolf populations in the Great Lakes region have recovered and no longer require the protection of the Endangered Species Act. The U.S. Fish and Wildlife Service is publishing a final rule in the Federal Register removing wolves in Michigan, Minnesota and Wisconsin, and in portions of adjoining states, from the list of endangered and threatened wildlife and plants.

From FWS Midwest wolf page

“Once again, the Endangered Species Act has proved to be an effective tool for bringing species back from the brink of extinction,” Secretary Salazar said. “Thanks to the work of our scientists, wildlife managers, and our state, tribal, and stakeholder partners, gray wolves in the western Great Lakes region are now fully recovered and healthy.”

The rule removing ESA protection for gray wolves in the western Great Lakes becomes effective 30 days after publication in the Federal Register.

“Gray wolves are thriving in the Great Lakes region, and their successful recovery is a testament to the hard work of the Service and our state and local partners,” said Fish and Wildlife Service Director Dan Ashe. “We are confident state and tribal wildlife managers in Michigan, Minnesota and Wisconsin will effectively manage healthy wolf populations now that federal protection is no longer needed.”

Wolves total more than 4,000 animals in the three core recovery states in the western Great Lakes area and have exceeded recovery goals. Minnesota’s population is estimated at 2,921 wolves, while an estimated 687 wolves live in Michigan’s Upper Peninsula and another 782 in Wisconsin. Each state has developed a plan to manage wolves after federal protection is removed.

Wolf populations in Wisconsin, Minnesota and Michigan will be monitored for at least five years to ensure the species continues to thrive. If it appears, at any time, that the gray wolf cannot sustain itself without the protections of the ESA, the Service can initiate the listing process, including emergency listing.

In the Service’s May 5, 2011, proposal to delist western Great Lakes wolves, the agency also proposed accepting recent taxonomic information that the gray wolf subspecies Canis lupus lycaon should be elevated to the full species Canis lycaon, and that the population of wolves in the Western Great Lakes is a mix of the two full species, Canis lupus and Canis lycaon. Based on substantial information received from scientists and others during the public comment period, the Service has re-evaluated that proposal, and the final rule considers all wolves in the Western Great Lakes DPS to be Canis lupus.

The Service also previously proposed delisting gray wolves in all or parts of 29 states in the eastern half of the United States. The Service continues to evaluate that portion of the May 5, 2011, proposal and will make a final separate determination at a later date.

Gray wolves were originally listed as subspecies or as regional populations of subspecies in the lower 48 states and Mexico under the ESA in 1973 and its predecessor statutes before that. In 1978, the Service reclassified the gray wolf as an endangered species across all of the lower 48 states and Mexico, except in Minnesota where the gray wolf was classified as threatened.

More information on the recovery of gray wolves in the Western Great Lakes can be found at www.fws.gov/midwest/wolf/

The ESA provides a critical safety net for America’s native fish, wildlife and plants. The Service works to actively engage conservation partners and the public in the search for improved and innovative ways to conserve and recover imperiled species.

To learn more about the Endangered Species Program, visit http://www.fws.gov/endangered/.

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The Bureau of Ocean Energy Management (BOEM) has issued conditional approval to Shell Gulf of Mexico Inc.’s revised Exploration Plan under leases in the Chukchi Sea Planning Area.

“In its Exploration Plan, Shell proposes drilling up to six exploration wells in Alaska’s Chukchi Sea beginning in the 2012 drilling season,” BOEM said in a news release:

Among the conditions of approval is a measure designed to mitigate the risk of an end-of-season oil spill by requiring Shell to leave sufficient time to implement cap and containment operations as well as significant clean-up before the onset of sea ice, in the event of a loss of well control. Given current technology and weather forecasting capabilities, Shell must cease drilling into zones capable of flowing liquid hydrocarbons 38 days before the first-date of ice encroachment over the drill site. Based on a 5-year analysis of historic weather patterns, BOEM anticipates November 1 as the earliest anticipated date of ice encroachment. The 38-day period would also provide a window for the drilling of a relief well, should one be required.

Approval is also conditioned on a series of other measures to increase safety and confirm the availability of response equipment, including a well capping and containment system, and to ensure that Shell takes important steps to avoid conflicts with subsistence activities. In addition to BSEE approvals, Shell must also obtain necessary permits from other agencies — the Environmental Protection Agency, the U.S. Fish & Wildlife Service, and the National Marine Fisheries Service.

Here’s an interesting story on the Web: The Casper Star-Tribune is reporting that the White House prevailed upon congressional negotiators to remove a provision in the recently agreed-to budget package that would have prohibited lawsuits challenging a pending gray wolf agreement between Wyoming and the Fish and Wildlife Service.

Rep. Cynthia Lummis was the key source for Jeremy Pelzer’s article, which notes:

Under the agreement, negotiated by U.S. Fish and Wildlife Service officials and Gov. Matt Mead, the state’s roughly 243 wolves living outside of Yellowstone National Park and the Wind River Indian Reservation could be killed on sight in all but the northwest part of the state, where they would be designated as trophy game and could only be hunted with a license.

The plan also establishes a flex zone covering northern Sublette and Lincoln counties, as well as southern Teton County, in which wolves would be protected only from Oct. 15 until the end of the following February.

A spokesman for Mead told Pelzer the governor was “disappointed” by the news. But Renny MacKay “said Mead is confident Wyoming’s congressional delegation will try again for a no-sue clause, possibly as a stand-alone bill.

“(Mead) will keep supporting any effort to get that legislation through, and he knows that the congressional delegation will too,” MacKay said.

Chances of a stand-alone bill succeeding are remote, however, as a spokesman for Sen. Mike Enzi (R-Wyo.) told the newspaper.

No, the way to get these things done is through an appropriations rider.

Lummis issued a statement yesterday, which is reprinted below.

“The decision to pull the wolf language was based on politics, not policy. Radical environmentalists have the ear of many in Washington and their considerable sway in the White House is the reason for the removal of this important language. When the deal that gives Wyoming the ability to manage wolves is complete, environmental groups will resume their relentless lawsuits. Governor Mead’s successful negotiations with the U.S. Fish and Wildlife Service will ensure that wolf management in our state is returned to the most capable managers: Wyoming’s on the ground experts. I will fight tooth and nail to protect Wyoming’s right to manage wolves and all wildlife within our borders. ”