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    Permission for Cook Inlet seismic surveys
    granted illegally, new lawsuit asserts

    Posted by Steve Davies at 3:44 am Court calls, Critical habitat, Daily Links, ESA, NEPA, NMFS
    May 172012

    Complaint alleges NEPA, MMPA, ESA violations

    A new lawsuit filed by Chickaloon Native Village, Natural Resources Defense Council, Center for Biological Diversity and the Center for Water Advocacy alleges violations of the Marine Mammal Protection Act, Endangered Species Act and National Environmental Policy Act in connection with the National Marine Fisheries Service’s issuance of an Incidental Harassment Authorization for seismic surveys in Cook Inlet (Chickaloon Native Village v. National Marine Fisheries Service, 12-102, D. Alaska).

    Beluga whale (Photograph by Brian J. Skerry)

    The Center put out a press release on the complaint, which likely will be amended to include charges under the Endangered Species Act. (The plaintiffs noted in a footnote that the ESA requires 60-day notice of intent to sue: “Plaintiffs sent such a notice to the Secretary of Commerce on March 29, 2012. Upon expiration of the statutory notice period, plaintiffs intend to seek leave to amend this complaint to add ESA claims against the defendants.”)

    NMFS issued an inadequate Environmental Assessment and should have prepared an EIS, the complaint said:

    Defendants failed to take a hard look at the impacts of the Apache IHA on marine mammals, particularly on the range of direct and indirect behavioral effects that can occur when marine mammals are subjected to sound levels that disturb foraging, habitat access, social organization, predator avoidance, availability of prey species, and other factors affecting reproduction and survival. Among these failures, Defendants dismissed the available literature on the impacts of anthropogenic noise, including airguns, on beluga whales, demonstrating the species’ abandonment of habitat over areas far greater than those assumed in Defendants’ analysis.

    NMFS also did not consider the “cumulative impacts of Apache’s survey, both from the entire three-to-five years of survey activity and in combination with other industrial activities occurring in Cook Inlet, which are increasing noise and chemical pollution in the same marine habitat.”

    The service “failed to adequately consider socioeconomic impacts, including impacts on subsistence hunting caused by the airgun survey’s effects on Cook Inlet belugas and other species, and on subsistence, commercial and recreational fishing caused by its potential large-scale displacement of fish, for tribal members, subsistence users, and others in Cook Inlet,” the complaint said.

    Excerpts from the lawsuit:

    Defendants violated the MMPA, 16 U.S.C. §§ 1361-1421, by issuing an incidental harassment authorization (IHA) that authorizes Apache to repeatedly take beluga whales in their critical habitat, despite the fact that the MMPA limits such authorizations to “small numbers of marine mammals of a species or population stock,” requires no more than a “negligible impact” on species and stocks, and forbids “an unmitigatable adverse impact on the availability of such species or stock for taking for subsistence uses” by native peoples. 16 U.S.C. § 1371(a)(5)(D)(i). Because of the significant risks to this highly endangered beluga population and its critical habitat, the U.S. Marine Mammal Commission, appointed by Congress to provide expert advice on the protection of marine mammals and the implementation of the MMPA, recommended in a letter to NMFS that the authorization not be issued. Defendants’ violations are compounded by their failure to fully consult with representatives from Chickaloon Native Village or the Cook Inlet Marine Mammal Council pursuant to the MMPA and Executive Order 13175.

    Defendants violated NEPA, 40 U.S.C. §§ 4321-4370, by issuing an environmental assessment (EA) that fails to take a hard look at the substantial and wide-ranging impacts of seismic surveys on the marine environment; consider and analyze all reasonable alternatives; identify and implement all feasible mitigation measures; and obtain information essential to the agency’s analysis. Defendants likewise violated NEPA by issuing a Finding of No Significant Impact (FONSI) for seismic surveys conducted by Apache based on the EA rather than preparing an environmental impact statement.

    Third claim for relief targets MMPA compliance

    From the complaint:

    In addition, NMFS violated the MMPA by not ensuring — among other things– that Apache’s activity would have no more than a “negligible impact” on species and population stocks in Cook Inlet; (4) determine and ensure that the activity will not have an unmitigable adverse impact on the availability of such species and stocks for subsistence use; (5) set forth sufficient methods to ensure the least practicable impact on such species and stocks and their habitat, paying particular attention to areas of special significance; and (6) set forth sufficient requirements for the monitoring and reporting of impacts on marine mammals. 16 U.S.C. § 1371(a)(5)(D)(i); 50 C.F.R. § 216.107.

    Defendants failed to comply with each and every one of these mandatory requirements and to make the requisite findings in a manner supported by the record, and therefore the IHA issued on April 30, 2012 is not legally adequate under the MMPA.

    Defendants’ issuance of an invalid IHA and Apache’s subsequent reliance on that authorization will result in the unlawful taking of a large and unknown number of marine mammals, including the taking of endangered Cook Inlet beluga whales over substantial portions of their only remaining habitat. Because the authorization is invalid, Apache’s taking of marine mammals is prohibited under the MMPA. 16 U.S.C. § 1372(a).

    Defendants’ actions are also contrary to Marine Mammal Commission’s advice and recommendations regarding “such steps as [the Commission] deems necessary or desirable for the protection and conservation of marine mammals.” 16 U.S.C. § 1402(a)(4). NMFS has failed to properly explain its substantial deviation from these recommendations, as required by the MMPA. 16 U.S.C. § 1402(d).

    Background from the complaint

    On September 21, 2011, NMFS published notice of its proposal to issue an IHA to Apache in the Federal Register. This notice indicated that Apache requested authorization to take by harassment beluga whales, harbor seals, harbor porpoises, killer whales, and Steller sea lions. 76 Fed. Reg. at 58485. Several plaintiff organizations submitted comments on the proposed permit indicating that, as proposed, it would violate the MMPA, ESA, and NEPA. . . .

    On April 30, NMFS issued an IHA to Apache that authorizes it to take, by harassment, 30 beluga whales, 50 harbor seals, 20 harbor porpoises, 10 killer whales, and 20 Steller sea lions, over a period running from April 30, 2012 through April 30, 2013. Although the seismic surveys will be conducted over a period of three to five years, Apache applied for, and NMFS authorized, only a single year of surveys.  NMFS did not publish the IHA for public review until May 11, 2012. 77 Fed. Reg. 27720 (May 11, 2012).

    Partial screenshot of docket

    Links

    2011 Apache Alaska Corp. Seismic Survey in Cook Inlet, Alaska

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    Day after approving natural gas project in Utah, Salazar, Ashe
    meet with oil and gas reps, tout conservation plan for lizard

    Posted by Steve Davies at 3:56 pm Daily Links, Fish and Wildlife Service, Listings
    May 092012

    Make up your minds, already (Photo courtesy FWS)

    Leapin’ lizards, batman: The dunes sagebrush variety of this particular reptile is getting a lot of attention.

    The Washington Post’s Energy and Environment page has coverage of DOI’s approval of “a major natural gas project in Utah’s Uinta Basin that could develop more than 3,600 new wells over the next decade, while safeguarding air quality and assuring the protection of critical wildlife habitat and outdoor recreation values. The project will support up to 4,300 jobs during development.”

    The quote is not from the Post’s story, but from DOI’s news release. issued yesterday (and reprinted below). In the Post, Steven Mufson writes that “the action doesn’t open any new land for production, because the drilling will take place on leases­ already owned by Anadarko. But the step by Interior assuaged some in Utah, where shortly after taking office President Obama had canceled 77 leases issued by President George W. Bush.”

    In its Biological Opinion, FWS made a number of conservation recommendations regarding protection of — or avoidance of jeopardy to — four endangered Colorado River fishes. Or as they’ve been known all the years they’ve been swimming in endangered waters together, the Colorado River Endangered Fishes — Colorado pikeminnow, razorback sucker, bonytail, and humpback chub by, which will be adversely affected by water depletions of up to 757 acre-feet per year.

    One apparent difference between the DOI release and the Post story is the estimate of jobs created. DOI says 4,300, the Post quotes Anadarko as claiming creation of “as many as 2,900 jobs, directly and indirectly, during construction.”

    But here’s DOI’s full explanation: “The new gas wells proposed under the plan would support an annual average of 1,709 jobs directly and 1,212 jobs indirectly. At peak development, the project would support 4,302 short-term jobs, and support an average of 875 long-term jobs over the production life of the project.”

    It’s all in how you look at it.

    Oddly, if you look at the Post’s E&E page, you won’t find a link to Juliet Eilperin’s story from just three days ago on the fight over the lizard’s conservation status: FWS is scheduled to decide in June whether to list it as threatened or endangered under the ESA. Mufson’s story, done from a political/economic point of view (and posted on the business page), doesn’t mention the lizard. Eilperin explores the lizard listing decision’s impact on a settlement the service reached with environmental groups to make decisions on hundreds of candidate species, including the lizard.

    Here are the story’s first three paragraphs:

    It wasn’t too hard for the Fish and Wildlife Service to decide the fate of 92 freshwater snails, or 17 dragonflies, or indeed more than 500 species over the past year. But when it comes to the dunes sagebrush lizard, trouble looms.

    The small spiny reptile seeks refuge from the hot sun and potential predators in the shinnery oak dunes of southeastern New Mexico and West Texas. Ranchers have been clearing the oak shrubs, and oil and gas companies are drilling in the dunes. If the lizard is designated as an endangered species, some of those activities could be in jeopardy.

    The lizard’s future is among the first in a series of wrenching tests threatening what has been a year-long cease-fire in the fight over endangered-species listings.

    The article frames the upcoming deadlines — reached with Wild Earth Guardians and the Center for Biological Diversity in settlements agreed to last year — in the context of the big election in November.

    The storm may start with the dunes sagebrush lizard, first listed as a candidate for federal protection in 1982. Since then its habitat has been reduced by 40 percent. Fish and Wildlife proposed listing the animal, also known as the sand dunes lizard, as endangered in December 2010.

    The agency was set to issue a final decision a year later but delayed doing so by six months in the face of fierce congressional resistance. Now it must decide by mid-June what to do about the lizard. Some of its habitat overlaps with the oil-rich Permian Basin, which produces 17 percent of the nation’s annual onshore oil supply.

    Permian Basin Petroleum Association President Ben Shepperd, whose group represents 900 oil and gas producers in New Mexico and Texas, estimates that the association has spent between $500,000 and $1 million on consultants who have conducted their own census of the lizard and challenged several aspects of agency’s listing proposal.

    “The evidence does not point to a threat to this species,” Shepperd said, adding that his members fear this decision — along with ones on the lesser prairie chicken and spot-tailed earless lizard, also mandated under the settlement agreement — could restrict oil and gas drilling. “We think the impact is in the billions of dollars.”

    In all, the settlements apply to more than 800 species, but the deadlines are spaced out over five years.

    More lizard and settlement-related links

    Snails, mentioned above

    Final listing rules from 2011 and from this year

    Proposed listings and petition findings for this year (but don’t forget the March 21, 2012, reopening of the public comment period and announcement of a public hearing on proposed designation of critical habitat for the Southern Selkirk Mountains Population of Woodland Caribou)

    Below (just because we can do it) is a screenshot of proposed actions for this year. Click here to access that page with working links.

    Some more recent news:

    The proposed regulation is intended to address sea turtle captures in skimmer trawls — fishing equipment, used primarily in bays and estuaries, that are currently exempt from using TEDs. TEDs prevent turtles from drowning in nets, but limited applicability and lax enforcement are thought to have led to thousands of deaths in 2010 and 2011. Currently, skimmer trawls can use tow-time restrictions instead of TEDs. Tow times limit the amount of time shrimpers can keep their trawls in the water, but evidence is mounting that even when these restrictions are followed, skimmers drown turtles. The proposed rule would abandon the tow time restrictions and require skimmer trawls, pusher-head trawls and wing nets to use TEDs.

    • May 3: Seahorse moves toward protection (Ctr. for Biological Diversity) Excerpt:  “In response to an April 2011 petition from the Center for Biological Diversity, the National Marine Fisheries Service announced today that the dwarf seahorse may warrant protection under the Endangered Species Act. The one-inch-long seahorse, found in seagrass beds in the Gulf of Mexico, Florida and the Caribbean, is threatened with extinction due to decline of seagrass, commercial collection and lingering pollution from the BP Deepwater Horizon oil spill. Today’s announcement kicks off a one-year review of its status to determine if federal protection will be granted.”

    Here’s the DOI press release on the Salazar/Abbey/Ashe visit to the Permian Basin:

    http://www.doi.gov/ui/doi/images/2008-news-release-header.jpg

    Salazar, Ashe Emphasize Importance of Texas Energy Development;
    Highlight Conservation Agreement for Dunes Sagebrush Lizard

    Meet with Industry Officials in Permian Basin

    May 8, 2012

    MIDLAND, Texas – A day after showcasing a successful partnership in Utah between industry and the conservation community to protect environmentally sensitive areas while developing America’s energy resources, Secretary of the Interior Ken Salazar and U.S. Fish and Wildlife Service (FWS) Director Dan Ashe today met with oil and gas industry representatives to emphasize the importance of energy development in the Permian Basin and to highlight expanding voluntary conservation efforts for the dunes sagebrush lizard on the part of ranchers and the oil and gas industry.

    “Expanding responsible oil and gas development is a top priority for President Obama and his administration as part of an all-of-the-above approach to American energy,” Salazar said during the meeting at a ConocoPhillips site outside Midland. “As we pursue this goal, I commend oil and gas operators in Texas and New Mexico for their voluntary participation in conservation agreements to protect this ancient landscape and I encourage their continued stewardship efforts as we pursue balanced energy development.”

    In New Mexico, which contains 73 percent of the lizard’s habitat, 29 oil and gas companies and 39 ranchers are participating in a voluntary project to help conserve the dunes sagebrush lizard, which has been proposed for listing under the Endangered Species Act (ESA). If science shows that the lizard requires listing under the Endangered Species Act, landowners who have entered into a voluntary conservation agreement will receive assurances that no additional conservation steps above and beyond those contained in the agreement will be required. These conservation efforts now encompass more than 95 percent of the habitat area in New Mexico, with no known adverse impacts on energy development.

    In February, the Fish and Wildlife Service signed an agreement (‘Texas Plan’) with the Texas Comptroller of Public Accounts that allows landowners – oil and gas companies and ranchers – to enter into voluntary conservation agreements that help provide certainty for development and protect the shinnery oak dunes that the lizard inhabits and that are characteristic of southeastern New Mexico and West Texas. Individual shinnery oak plants are known to extend over dozens of acres and can achieve ages of more than 13,000 years. Approximately 70 percent of the habitat area for the dunes sagebrush lizard in Texas, which contains 27 percent of the lizard’s total habitat, has already been enrolled in the voluntary conservation agreements.

    The Texas Plan was developed locally in collaboration with the Texas Parks and Wildlife Department, Texas A&M University, the Texas Oil and Gas Association, other state and county government agencies, local landowners, representatives from the ranching community and oil and gas operators and development companies in the area.

    “It is good to see so many members of the oil and gas industry step up to the plate to voluntarily conserve this unique portion of the southern Great Plains,” said Fish and Wildlife Service Director Dan Ashe. “The scientists and professionals in the Fish and Wildlife Service will take these early, proactive measures into consideration in any final listing decision.”

    The Fish and Wildlife Service proposed to list the dunes sagebrush lizard as endangered in 2010 and is currently reviewing and analyzing public comment on the proposal in anticipation of a final decision in June. Under the law, the agency must make listing decisions based upon the best available science. The Fish and Wildlife Service had extended the timeline for a final decision to six months to allow the maximum time for scientific study and voluntary conservation efforts.

    If the dunes sagebrush lizard is listed as endangered or threatened, the Texas Plan would act as a Habitat Conservation Plan for those companies and other landowners who participate, enabling them to continue to develop oil and gas while ensuring the long-term health of lizard populations.

    ###

    Greater Natural Buttes Project-BiOp.pdf

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    FWS to downlist wood bison

    Posted by Steve Davies at 12:56 pm Daily Links, ESA, Fish and Wildlife Service, Listings, Recent actions
    May 022012

    FWS will publish a final rule tomorrow (May 3) downlisting the wood bison.

    For those not familiar with the terminology, “downlist” means “to change from endangered to threatened.” That’s my own definition; it may not be found in any reputable dictionary.

    Just let me sleep (Photo from "The 'splorin' Wolfies" blog)

    The service said it’s changing Bison bison athabascae‘s designation from E to T because there are more of the big fellows in the wild.

    From the FR’s pre-publication version:

    “This action is based on a review of the best available scientific and commercial data, which indicate that the primary threat that led to population decline, unregulated hunting, is no longer a threat and that recovery actions have led to a substantial increase in the number of herds that have a stable or increasing trend in population size. Critical habitat has not been designated because free-ranging wood bison only occur in Canada and we do not designate critical habitat in foreign countries.”

    TABLE 1.—Sizes of wood bison herds in Canada from 1978 to 2008 (data provided by Canadian Wildlife Service).

    Herd Category and Name 1978 1988 2000 2002 2004 2006 2008
    Free-ranging, disease-free herds
    Mackenzie 300 1,718 1,908 2,000 2,000 ~ 2,000 1,600
    Nahanni - 30 160 170 399 400 400
    Aishihik - - 500 530 550 700 1,100
    Hay-Zama - - 130 234 350 600 750
    Nordquist - - 50 60 112 140 140
    Etthithun - - - 43 70 124 124
    Chitek Lake - - 70 100 150 225 300
    Free-ranging, diseased herds
    Wood Buffalo1 National Park - - 2,178 4,050 4,9472 5,6413 4,6394

    1 Excluding adjacent diseased Wentzel, Wabasca, and Slave River Lowlands herds.
    2 Population estimate for year 2003.
    3 Population estimate for year 2005.
    4 Population estimate for year 2007.

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    FWS, NMFS will be allowed to skip words, use
    only maps for critical habitat under new proposal

    Posted by Steve Davies at 7:17 pm Critical habitat, Daily Links, ESA, Fish and Wildlife Service, NMFS
    Apr 302012

    A picture is not just worth a thousand words, it’s also a lot less expensive to publish in the Federal Register.

    And, it’s easier on the eyes.

    It’s hard to argue with the logic of a proposal to be published tomorrow (May 1) by the Fish and Wildlife Service and National Marine Fisheries Service. The agencies said the new process for critical habitat proposals, final designations and boundary changes will be “more efficient [and] less complex.”

    “Previously, when the agencies designated or revised critical habitat for ESA-protected species, they were required to describe, in text, the boundaries of the designation for the Federal Register, in addition to using visual methods such as maps,” FWS and NMFS said in a news release issued today. “These textual descriptions often cost hundreds of thousands of dollars annually to publish and can be difficult to interpret and understand.”

    In the proposal, the agencies said FWS spent $1.97 million in fiscal years 2008-2010 to publish critical habitat designations in the FR. “If we estimate that 50 percent of those costs are spent on the publication of the textual descriptions of the boundaries,” then not publishing those descriptions will save nearly $328,000 per year. Adding that to the cost of reprinting those same CH designations in the Code of Federal Regulations equals $391,742 per year in savings, the agencies said.

    Thus, eliminating the need to publish latitude-longitude coordinates, UTM coordinate pairs or other detailed textual descriptions in the Federal Register and CFR would result in a significant cost savings to the services and the public as a whole.

    So, no longer will readers be forced to thumb (or scroll) past edifying descriptions like this one:

    Land bounded by the following UTM Zone 18, NAD 83 coordinates (E,N): 733143, 99288; 733053, 99268; 733055, 99291; 733065, 99309; 733055, 99320; 733048, 99344; 733053, 99364; 733090, 99377; 733140, 99370; 733143, 99288.

    Nothing else about critical habitat designations will change.

    “The final joint rule . . . will not affect how the two agencies designate critical habitat under the ESA, or alter the criteria or methods used to evaluate areas for inclusion as critical habitat. The boundaries of critical habitat as mapped or otherwise described in the official rulemaking published in the Federal Register will remain the official delineation of the designation.”

    More here: http://www.fws.gov/endangered/improving_ESA/CH_Text.html

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    Redden opens up on Snake River dam removal

    Posted by Steve Davies at 12:47 pm Daily Links
    Apr 272012

    Tear ‘em down, he says in interview to be aired on Idaho Public TV

    Retired federal judge James A. Redden, revered and reviled in the Pacific Northwest for his rulings on Columbia River dam operations, has told an interviewer for Idaho Public Television that the four Snake River dams should come down.

    Said the former chief judge of the U.S. District Court in Oregon:

    “I think we need to take those dams down … And I’ve never ordered them you know – or tried to order them that you’ve gotta take those dams down. But I have urged them to do some work on those dams…and they have.”

    The story was first reported on EarthFix, a public media project operated by a number of radio and TV stations in the Northwest. The New York Times picked up on it today.

    Sharp Park case moves forward

    Posted by Steve Davies at 12:32 pm Biological Opinions, Court calls, Daily Links, ESA, Fish and Wildlife Service
    Apr 272012

    A lawsuit challenging operations at a golf course owned by the city of San Francisco will proceed, U.S. District Judge Susan Illston ruled yesterday (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

    Illston, who had previously denied a request for an injunction to halt park activities, stayed the case while the city consults with the Fish and Wildlife Service on activities that could harm the two federally listed species that occupy the park — the threatened California red-legged frog and endangered San Francisco garter snake.

    Illston said there is some question as to whether the frog population is growing, as asserted by the city.

    New evidence and recent FWS activity have called into question the growth of the frog population at Sharp Park. In its denial of a preliminary injunction, the Court relied heavily on the City’s ability to carefully move the stranded egg masses. See Order at 14-15. The Court noted that during the winter of 2010-11, the City found 159 egg masses; it then requested and received permission to move 128 of them. See Order at 8 (citing Campo Dep. at 104)). However, the FWS has since revoked the City’s authorization to move the stranded egg masses. See Crystal Decl., Ex. 1 (Dec. 8, 2001 FWS letter). It is unclear what effect the revocation will have on the Frog’s population.

    Plaintiffs have also pointed to testimony that calls into question whether the Frog population is increasing. They cite defendants’ expert Lisa Wayne, Sharp Park’s Natural Areas Program Manager, who testified at deposition that she could not say whether the population trend of the Frog at Sharp Park was increasing or decreasing, and that while the 2010-2011 rainy season was the highest she had seen, the egg mass population fluctuates from year to year. Wayne Dep. at 249:15-250:9. Plaintiffs also provide a new declaration from their expert, Dr. Marc Hayes, one of the scientists to originally petition the FWS to list the Frog. See Emery Decl., Ex. B (Hayes Rep. III)). Dr. Hayes now states that rather than increasing, recent analysis shows that egg mass numbers at Horse Stable Pond are merely stable. Id. at ¶ 62. The Court finds that the City has not established that there is no genuine issue as to the growth of the Frog population.

    Illston did not rule on the merits of the plaintiffs’ complaint. Instead, she found that they had standing to pursue their claim and stayed the matter until October, by which time consultation with FWS should be complete.

    The environmental groups’ press release is pasted below the links.

    Here’s the release issued by the environmental groups:

    For Immediate Release, April 26, 2012

    Contact: Brent Plater, Wild Equity Institute, (415) 572-6989
    Jeff Miller, Center for Biological Diversity, (415) 669-7357
    Arthur Feinstein, Sierra Club, (415) 680-0643
    Neal Desai, National Parks Conservation Association, (510) 368-0845

    Judge Cites Evidence Sharp Park Golf Course Is Harming Endangered Frogs,
    Awaits U.S. Fish and Wildlife Service Input

    Order Discusses Harm, Population Impacts to Red-legged Frogs

    SAN FRANCISCO — U.S. District Judge Susan Illston today rejected the City of San Francisco’s attempt to dismiss a lawsuit filed by six conservation organizations over the ongoing killing of red-legged frogs at Sharp Park Golf Course. Explaining that new evidence and recent Fish and Wildlife Service restrictions have called into question San Francisco Park Department claims that the frog population at Sharp Park is growing, the court ordered the city to obtain authorization from the Fish and Wildlife Service for golf course activities that could harm endangered species. The judge ruled conservation groups have legal standing to bring the case, but stayed the lawsuit until October, when San Francisco could face a court trial over Endangered Species Act violations if it does not obtain a federal permit.

    “The court’s ruling lays bare the damage golf course activities such as draining water from wetlands exacts on two of the Bay Area’s most imperiled animals,” said Brent Plater, executive director of the Wild Equity Institute. “We expect the Fish and Wildlife Service to require that the golf course cease killing endangered species and propose a comprehensive mitigation and restoration plan as part of any permit.”

    The Park Department argued that draining aquatic feeding and breeding habitats for the California red-legged frog and San Francisco garter snake at Sharp Park Golf Course somehow benefits the species. In rejecting these assertions, the court cited contradictory testimony from the city’s own experts and staff that the golf course activities harm and kill protected wildlife.

    “The endangered species permit process will weigh the biological impacts of excessive water pumping and habitat destruction to protect one golf course,” said Jeff Miller of the Center for Biological Diversity. “The permit should force the Park Department to change golf course operations to actually protect imperiled frogs and snakes.”

    The Park Department has killed endangered frogs six of the past 10 winters, and its so-called “compliance plan” for endangered species has been a complete failure. In February, the department was caught again killing threatened red-legged frogs at the course, draining Sharp Park’s wetlands in a failed attempt to prevent frogs from breeding in their historic ponds.

    The Washington, D.C. public-interest law firm Meyer, Glitzenstein & Crystal represents the coalition of conservation groups in the lawsuit.

    Background

    The Fish and Wildlife Service last year notified the golf course that it was specifically prohibited from handling or moving frog egg masses at Sharp Park and must obtain a permit for any golf course activities affecting protected species. The Service also denied the Park Department’s request to drain wetlands and dredge lagoons at Sharp Park, cynically referred to by the city as “habitat management and scientific studies.” Water pumping, dredging and other activities harmful to frogs can only occur if the department obtains a federal “incidental take” permit with an accompanying conservation plan.

    The city-owned golf course at 400-acre Sharp Park in Pacifica is plagued by crumbling infrastructure, annual flooding problems and ongoing environmental violations. More than three-dozen San Francisco community, recreation, environmental and social-justice groups have called for closing the golf course and creating a more sustainable public park at Sharp Park. A 2011 peer-reviewed scientific study by independent scientists and coastal experts concluded that the most cost-effective option for Sharp Park is to remove the golf course and restore the functions of the original natural ecosystem, which will also provide the most benefit to endangered species.

    The Park Department has refused to consider this option, and is instead pursuing a plan that would evict endangered species from the site and bail out the golf course’s financial problems with tens of millions of dollars of taxpayer money. The San Francisco Board of Supervisors passed legislation in December 2011 to prevent this from happening, but Mayor Ed Lee, an avid golfer, vetoed the legislation. Further action by the board is expected this year.

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    Rosy view of polar bear aerial survey questioned

    Posted by Steve Davies at 2:26 am Daily Links
    Apr 272012

    Polar Bears International says recent media reports about increasing polar bear numbers in Western Hudson Bay present a highly misleading picture of the actual situation.

    The stories “stem[] from a press release on a preliminary study of the Western Hudson Bay population that relied on a different methodology (aerial vs. capture-recapture) and larger geographic survey area than previous studies,” PBI said.

    The aerial survey was conducted for the government of Nunavut in Canada. The Inuit population in Nunavut is concerned that the hunting quota in Western Hudson Bay will be lowered.

    An article in the Toronto Globe & Mail said the survey “shows the bear population in a key part of northern Canada is far larger than many scientists thought, and might be growing.”

    “The bear population is not in crisis as people believed,” Drikus Gissing, Nunavut’s director of wildlife management, told the Globe & Mail. “There is no doom and gloom.”

    The Globe & Mail story, by reporter Paul Waldie, provided context.

    There’s much at stake in the debate. Population figures are used to calculate quotas for hunting, a lucrative industry for many northern communities. Hunting polar bears is highly regulated but Inuit communities can sell their quota to sport hunters, who must hunt with Inuit guides. A polar-bear hunting trip can cost up to $50,000. Demand for polar-bear fur is also soaring in places like China and Russia and prices for some pelts have doubled in the past couple of years, reaching as high as $15,000.

    The Nunavut hunting quota in the western Hudson Bay area fell to 8 from 56 after the 2004 report from Environment Canada. The Nunavut government increased it slightly last year but faced a storm of protest. Over all, about 450 polar bears are killed annually across Nunavut. Mr. Gissing said a new quota is expected to be announced in June.

    The article also quoted longtime polar bear scientist Andrew Derocher, who questioned the validity of the survey’s conclusions.

    Instead of the survey’s estimate that 1,013 bears are living in the area, PBI chief scientist Steven Amstrup said the more important piece of information is the number of yearlings seen from the air — 22, or 3 percent of the 701 bears “actually counted.”

    “By comparison, in Alaska during the good ice years of the 1980s, about 15 percent of the animals observed were yearlings,” PBI said in an email sent out April 26. (See below for the text.)

    The brief (eight-page) report from Nunavut notes the paucity of young bears. “Relatively few cubs of the year (50) and yearlings (22) were observed in [Western Hudson Bay] in comparison to the recent polar bear surveys in Foxe Basin in 2009 and 2010. Additionally, average litter sizes were the lowest recorded in recent years amongst the 3 Hudson Bay sub-populations suggesting that reproductive output in WH was poor in 2011.”

    MediaMatters, a nonprofit watchdog group (yes, it’s a “liberal” watchdog group) took a look at the story on earlier in April, citing Amstrup’s criticisms.

    More links

    Here’s the reprint from the PBI email:

    The Truth About Polar Bear Numbers April 2012      
    Nearing BearYou may have seen recent headlines stating that the Western Hudson Bay polar bear population–widely considered the most endangered–is, in fact, “healthy and abundant.”Sadly, that’s not the case. So what’s going on? The media flurry stems from a press release on a preliminary study of the Western Hudson Bay population that relied on a different methodology (aerial vs. capture-recapture) and larger geographic survey area than previous studies. Dr. Steven C. Amstrup, PBI’s chief scientist, says that media reports have made the serious mistake of comparing the aerial survey–with a point estimate of 1,013 polar bears–to a capture-recapture study from 2004 showing 934 bears. “It’s not a meaningful comparison,” he says. “It’s reasonable to expect there would be more polar bears in a larger geographic area than a smaller one. But even if the new aerial survey focused on exactly the same geographic area, it wouldn’t be surprising to derive a slightly different population estimate when using a different survey method.” He adds that from the standpoint of population welfare, it’s the trend in numbers that is critical, not a single survey from one point in time–so the aerial count will become meaningful only after several years of data are available. “A single point estimate of population size says nothing about whether the trend is up, down, or stable. Trend can only be addressed by multiple point estimates collected over time.”Dr. Amstrup says the new aerial survey does, however, include a piece of information relevant to trend: Of the 701 polar bears actually counted during the survey, only 22 (or about 3%) were yearlings–a very low percentage. By comparison, in Alaska during the good ice years of the 1980s, about 15% of the animals observed were yearlings.”If that 3% figure is even close to the number of surviving yearlings out there now, it’s not at all clear to me how the Hudson Bay population could be sustaining itself,” he says. “This observation is very much in line with the previously published indications that survival–especially of young–is declining.”Mom and cub on backThe release in question was issued by a Nunavut group interested in increasing polar bear hunting quotas.Scientists who study polar bears emphasize that their concern about polar bears is focused on the future. Because polar bears rely on the sea ice to reach their prey, sea ice losses from a warming Arctic threaten their survival.

    “The available data from Hudson Bay indicate declining condition and survival,” says Amstrup. “But in the bigger picture, whether any one population is currently declining, stable, or increasing is beside the point. Ultimately, all polar bears will disappear from their current ranges if we do not mitigate the rise in greenhouse gases.”

    Photo Credits:

    Bear Photos by Daniel J. Cox/NaturalExposures.com;

    Survey Photo by BJ Kirschhoffer

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    9th Circuit tosses $183,160 in attorney fees
    for IBLA proceedings in Idaho grazing case

    Posted by Steve Davies at 3:43 pm Court calls, Daily Links, NEPA
    Apr 252012

    The Ninth Circuit has invalidated $183,160 in attorney fees that had been awarded to Western Watersheds Project for work the group did in the Interior Board of Land Appeals, prior to filing a lawsuit in federal court in Idaho (Western Watersheds Project v. U.S. Dep’t of the Interior, 10-35836).

    In its ruling today (Wednesday, April 25), the appeals court said U.S. District Court Judge B. Lynn Winmill had relied incorrectly on a 1989 Supreme Court decision that dealt with “a very unusual type of social security case” (Sullivan v. Hudson, 490 U.S. 877, 1989). In that decision, the court found that fees could be awarded for administrative proceedings under § 2412(d)(1)(A) if the administrative proceedings were “intimately tied to the resolution of the judicial action,” and “necessary to the attainment of the results Congress sought to promote by providing for fees.”

    Relying upon this language, the district court here awarded fees incurred in the administrative proceedings. It reasoned that the administrative proceedings were “intimately tied” to its resolution of the district court action because the court was called upon to review the administrative proceedings and relied upon the record compiled by WWP before the ALJ. It concluded that WWP should be compensated for that work as well as the work done in district court. Under its reasoning, fees would be recoverable for most administrative  proceedings in which the district court relies on the administrative record.

    But Hudson is a different type of case, the Ninth Circuit said. And, it added, the Supreme Court has subsequently clarified and narrowed the exception to the general rule prohibiting the award of fees for administrative proceedings.

    The Court, within two years after Hudson, emphasized that because [the Equal Access to Justice Act] is a partial waiver of sovereign immunity it “must be strictly construed in favor of the United States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). Following this principle, the Court has stated consistently that fees for administrative proceedings can only be awarded under § 2412(d)(1)(A) if the district court ordered the further proceedings, and the district court action remained pending until the conclusion of the administrative proceedings. See Melkonyan v. Sullivan, 501 U.S. 89, 96-97 (1991).

    The court said its own decisions have narrowly construed Hudson, and that Congress “has spoken directly to the subject of fees for administrative grazing-permit proceedings and has
    rejected them. Section 504(a) allows administrative fee awards to prevailing parties in administrative proceedings that involve ‘adversary adjudications,’ but goes on to exclude
    licensing proceedings.”

    More links coming…

     

     

     

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    Sonoran bald eagle not listed (again)

    Posted by Steve Davies at 6:09 pm Court calls, Daily Links, ESA, Fish and Wildlife Service, Listings, Recent actions
    Apr 202012

    The Fish and Wildlife Service has declined again to list the bald eagle in Arizona as threatened or endangered. The service’s news release is pasted below.

    Contacts:  Steve Spangle, (602) 242-0210, Steve_Spangle@FWS.Gov,  Tom Buckley (505) 248-6455, Tom_Buckley@FWS.Gov, Jeff Humphrey (602) 242-0210, Jeff_Humphrey@FWS.Gov

    Service Determines Bald Eagle in the Sonoran Desert Does Not Warrant Protection under List of Endangered and Threatened Species

    The U.S. Fish and Wildlife Service today [Friday, April 20] announced the results of a revised 12-month finding on a petition to list the Sonoran Desert Area population of bald eagle (Haliaeetus leucocephalus) as threatened or endangered under the Endangered Species Act (ESA). After review of the scientific and commercial information used in its previous determination, the Service has found that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS) and listing the Sonoran Desert Area population of bald eagle is not warranted at this time.

    Pursuant to a November 30, 2011, court order, the Service drafted a new 12-month finding on the petition to list the Sonoran Desert Area population of bald eagle as a DPS. The court ordered the Service to base this new 12-month finding on the information that was used to reach the February 25, 2010, 12-month finding that this population was not a listable entity under the ESA.

    To determine if a DPS designation is appropriate, the Service has a three-step evaluation process. First, the Service determines whether a vertebrate population is discrete and, if the population is discrete, then determines whether the population is significant. If the population is determined to be both discrete and significant, then the DPS policy requires the Service to determine if the species would meet the requirements for endangered or threatened under the ESA.

    The Service determined that the Sonoran Desert Area population of bald eagle does meet the discreteness criteria under DPS policy. However, the Service determined that this population does not meet the significance requirement. After reviewing the 2010 information, as required by the court, the Service found no direct or indirect evidence that would indicate persistence in the Sonoran Desert Area is biologically or ecologically important to the taxon as a whole. The Service also found that: (1) loss of the population would not result in a significant gap in the range; (2) the population does not represent the only surviving natural occurrence of the bald eagle; (3) and the population’s genetic characteristics do not differ markedly from those of other bald eagle populations.

    The Service then went one step further to provide additional information about the Sonoran Desert Area population of bald eagle and conducted a threats assessment detailing the nature, scope, and likely effect of the threats to the population and the species to determine if the species would meet the listing requirements for endangered or threatened under the ESA, were it a listable entity. Based on the best available information, none of these poses a significant threat at a population level. If the Sonoran Desert Area population of the bald eagle were a listable entity, listing would not be warranted.

    The Sonoran Desert Area population includes all bald eagle territories within Arizona, the Copper Basin breeding area in California near the Colorado River, and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert and adjacent transitional communities.

    The Sonoran Desert population of bald eagles continues to be protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. This finding will not affect the status of the Sonoran Desert population of the bald eagle under State laws or suspend any other legal protections provided by State law.

    This finding will be available on the Internet at http://www.regulations.gov at Docket Number FWS–R2–ES–2008–0059, and http://www.fws.gov/southwest. Supporting documentation used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Southwest Regional Office, 500 Gold Ave SW, Room 6034, Albuquerque, NM 87102. Please submit any new information, materials, comments, or questions concerning this finding to the above address.

    The Endangered Species Act provides a critical safety net for America’s native fish, wildlife and plants. This landmark conservation law has prevented the extinction of hundreds of imperiled species across the nation and promoted the recovery of many others.

    The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals, and commitment to public service. For more information on our work and the people who make it happen, visit www.fws.gov. Connect with our Facebook page at www.facebook.com/usfws, follow our tweets at www.twitter.com/usfwshq, watch our YouTube Channel at http://www.youtube.com/usfws and download photos from our Flickr page at http://www.flickr.com/photos/usfwshq.

    More news from the Southwest…

    Preliminary strategy for jaguar recovery is complete (press release, 4/19/2012)

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    Judge Walton will consider four "extra-record" documents
    in coal industry suit over EPA 404 permit guidance

    Posted by Steve Davies at 5:40 pm Army Corps of Engineers, Clean Water Act, Court calls, Daily Links, EPA, Wetlands
    Apr 202012

    Friday, April 20, 2012 – A federal judge ruled today that when he decides a mining industry challenge to EPA-issued guidance on 404 permits, he would take into consideration four documents not presently in the record (Nat’l Mining Ass’n v. Jackson, 10-1220 RBW, D.D.C.).

    But at the same time, U.S. District Judge Reggie B. Walton rejected the plaintiffs’ motion to add eight other documents to the record:

    [T]he crux of the plaintiffs’ argument seems to be that because the documents predate the issuance of the Final Guidance and were either authored by EPA employees or sent to EPA employees by the [Kentucky Division of Water], they should be added to the administrative record. See id. at 9-10. It is not enough for the plaintiffs to assert that “the EPA knew about these” documents, Pls.’ Reply at 4; rather, the plaintiffs “must offer non-speculative grounds for their belief that the [agency] actually considered [the documents in question].” Marcum, 751 F. Supp. 2d at 81 (emphasis added). And the plaintiffs have not done so here.

    “The court will consider the final four documents at issue as extra-record evidence because they shed light on an issue not addressed by the administrative record itself,” Walton said. “While the administrative record is not so bare as to frustrate judicial review as to all of the plaintiffs’ claims, it is entirely bare as to how the EPA has applied the Final Guidance.”

    Walton, who has already ruled previously in the case, said he would “consider these documents in connection with the plaintiffs’ claim that the EPA has applied the Final Guidance as a binding rule.”

    Those four documents are:

    • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Document 9)
    • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Doc. 10)
    • Affidavit of KDOW employee R. Bruce Scott (Doc. 11)
    • Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environtmental Protection (“WVDEP”) employee Jeffrey Parsons, dated Nov. 20, 2011 (Doc. 12)

    Walton added that “[h]aving concluded that the four documents postdating the issuance of the Final Guidance are appropriate for consideration as extra-record evidence,” he did nlot need to address the parties’ arguments over whether he should actually “take judicial notice of these documents.”

    Here’s a list of the eight documents that did not make the cut. They are numbered according to their document number in the motion:

    1. Permitting Procedures for Determining ‘Reasonable Potential’, authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000
    2. Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water (“KDOW”) employee, dated July 7, 2000
    3. Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Dec. 21, 2009, commenting on proposed National Pollutant Discharge Elimination System (“NPDES”) Draft Permit for Premier Elkhorn Coal Company
    4. E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated Dec. 21, 2009
    5. E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated Nov. 5, 2010 and attached spreadsheet
    6. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 10, 2011
    7. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 12, 2011, and
    8. E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011

    More

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