Jul 272011
 

The D.C. Circuit Court of Appeals has vacated the Fish and Wildlife Service's critical habitat designation for San Diego fairy shrimp on 143 acres of private property in eastern San Diego County (Otay Mesa Property L.P. v. U.S. Dep't of the Interior, 09-383).

San Dieguito shrimpo

The San Diego fairy shrimp

The court said that "[s]everal factors taken together point to a lack of substantial evidence for the Fish and Wildlife Service’s determination that plaintiffs’ property was 'occupied' by the San Diego fairy shrimp in 1997":

"We emphasize that it is the combination of . . . factors that leads us to vacate the Fish and Wildlife Service’s designation of plaintiffs’ property. We rely on no single factor alone. On remand, moreover, [FWS] may be able to justify a re-designation. Our conclusion in this case is thus quite narrow: The current record is simply too thin to justify the action the service took."

More excerpts:

[T]he potential existence of San Diego fairy shrimp outside plaintiffs’ property does not itself show that San Diego fairy shrimp occupy plaintiffs’ property, and occupation of plaintiffs’ property was the rationale supplied in the agency’s final rule. To be sure, the Endangered Species Act allows designation of critical habitat both for land occupied by the species in question and for 'specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.' 16 U.S.C. § 1532(5)(A)(ii). But the [FWS] here designated plaintiffs’ land as critical habitat on the basis that it was occupied, not on the basis that it was a 'specific area[] outside the geographical area occupied by the species . . . essential for the conservation of the species.' See, e.g., 72 Fed. Reg. at 70,664 (“All areas designated as critical habitat for San Diego fairy shrimp are occupied . . . .”). If the [service] believes that plaintiffs’ land is critical habitat not because it is occupied, but rather because it is 'essential for the conservation of the species,' then it must say so in its agency decision and justify that determination. See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).

“We are pleased that the appellate court agreed that occupied should mean just that, and not whatever the agency argues it should mean,” said Nancie Marzulla, attorney for the landowners. “This land should never have been designated as critical habitat in the first place.”

Jul 272011
 

In a major triumph for the Fish and Wildlife Service and environmentalists, the House has approved an amendment by Rep. Norm Dicks (D-Wash.) to strike language in the Interior spending bill that would have prevented FWS from listing species or designating critical habitat.

By a vote of 224-202, the House OK'd Dicks' amendment today (Wed., July 27).

See previous coverage here

The House is now debating another Dicks amendment, which would strike language that would prohibit boat inspection and safety checks at the Yukon-Charley Rivers National Preserve on the Yukon River. Rep. Don Young (R-Alaska) is unhappy about National Park Service enforcement on the preserve.

Yesterday, the House approved an amendment to the bill that would shift $4.367 million from the Interior Solicitor's office to fund dental health programs within the Indian Health Service. Go here for debate on the measure.

Here's part of the Daily Digest from today's Congressional Record, with information on yesterday's proceedings

Department of the Interior, Environment, and Related Agencies Appropriations Act, 2012: The House resumed consideration of H.R. 2584, making appropriations for the Department of the Interior, environment, and related agencies for the fiscal year ending September 30, 2012. Consideration of the measure began yesterday, July 25th.

Pages H5543-78

Agreed to:
Bass (NH) amendment that increases funding, by offset, for several land acquisition accounts by a total of $20 million;

Pages H5546-48

Tipton amendment that increases funding, by offset, for the land acquisition accounts of the Bureau of Land Management and the Forest Service by $2,500,000 each;

Pages H5549-50

Griffin (AR) amendment that increases funding, by offsest, for the North American Wetlands Conservation Fund by $3 million;

Pages H5561-62

Carter amendment that redirects $1 million in funding with respect to National Park Service, Construction;

Pages H5565-66

Gosar amendment that allows use of funds in the bill to operate charter schools; and

Pages H5569-70

Gosar amendment that increases funding, by offset, for Indian Health Services by $4,367,000.

Pages H5575-78D847

Rejected:

Lamborn amendment that sought to eliminate funding for several land acquisition accounts and apply $50,721,000 to the spending reduction account and

Pages H5548-49 

Jackson Lee (TX) amendment that sought to increase funding, by offset, for Environmental Programs and Management by $5 million.

Pages H5573-75 

Withdrawn:
Norton amendment that was offered and subsequently withdrawn that would have redirected $300,000 in funding with respect to National Recreation and Preservation and

Pages H5564-65

Mica amendment that was offered and subsequently withdrawn that would have increased funding, by offset, for National Park Service, Construction by $2 million.

Pages H5566-69

Proceedings Postponed:
Clarke (MI) amendment that seeks to increase funding, by offset, for Environmental Programs and Management by $10 million;

Pages H5544-46

Dicks amendment that seeks to strike the proviso relating to funding limitations for carrying out certain subsections of the Endangered Species Act;

Pages H5550-61

Tonko amendment that seeks to increase funding, by offset, for National Recreation and Preservation by $8,408,000;

Pages H5562-63

Amash amendment (No. 5 printed in the Congressional Record of July 25, 2011) that seeks to striking funding for the National Capital Performing Arts/Capital Concerts and apply the savings to the spending reduction account;

Pages H5563-64

Dold amendment that seeks to increase funding, by offset, for Environmental Programs and Management by $24,700,000;

Pages H5570-71

Reed amendment (No. 44 printed in the Congressional Record of July 25, 2011) that seeks to increase funding, by offset, for State and Private Forestry by $8,291,000; and

Pages H5571-72

Scalise amendment, as modified, that seeks to reduce funding for the Office of the Secretary, Departmental Operations by $420,000.

Pages H5572-73

H. Res. 363, the rule providing for consideration of the bill, was agreed to yesterday, July 25th.

Amendments: Amendments ordered printed pursuant to the rule appear on pages H5581-82.

Quorum Calls--Votes: Three yea-and-nay votes and 11 recorded votes developed during the proceedings of today and appear on pages H5507, H5508, H5508-09, H5531, H5531-32, H5532-33, H5533, H5533-34, H5534, H5535, H5535-36, H5536, H5538, H5538-39. There were no quorum calls.

Adjournment: The House met at 10 a.m. and adjourned at 11:34 p.m.