Aug 042011

The 11th Circuit gave environmentalists a narrow victory Wednesday, ruling 2-1 that water utilities in Florida could not challenge a settlement between EPA and environmental groups that sets a timeline for adoption of numeric nutrient standards for Florida waters (Florida Wildlife Fed'n v. South Fla. Water Mngt. District, 10-10886, 11th Cir.)

No case or controversy remains, the appeals court said.  Chief Judge Joel F. Dubina and Senior Judge R. Lanier Edmondson comprised the majority; Circuit Judge Charles R. Wilson dissented.

Earthjustice, which represents the environmental groups in the litigation, said the court had "struck down a challenge filed by polluting industries and upheld a historic clean water settlement between the U.S. Environmental Protection Agency and Earthjustice. The 2009 settlement requires EPA to set limits on sewage, fertilizer and manure in Florida’s waterways."

At issue was a consent decree approved by a district court on Dec. 30, 2009, which required issuance of water quality standards for Florida's lakes and streams by December 2010.

"The only way that this court could issue a decision that 'directly redresses the injury suffered' from the December 2010 rule is if we were able to strike down the rule itself," the majority said. "In other words, the rule would have to depend on the validity of the consent decree. Because this is not the case, the appellants’ alleged injuries stemming from the December 2010 rule are not redressable and do not present a justiciable claim under the mootness doctrine."

Here's a little more from the court on standing:

When third-party intervenors appeal a consent decree that both the nominal plaintiffs and defendants support, the court’s standing analysis becomes more complicated. While the case is pending in the district court, there is a live case or controversy between the plaintiff and defendant, so the intervenors are free to challenge the proposed consent decree without having to prove standing independently. Once the district court approves the consent decree, however, the original case or controversy evaporates, and an intervenor appealing the decree must assert an independent case or controversy in order to maintain standing.

Wilson didn't like the majority's reasoning:

Under the majority’s view of traceability and redressibility [sic], no one could ever have standing to challenge a consent decree that is entered prior to a final agency rulemaking on the same matter.

Here's the court's initial summary of its decision:

Intervenors-appellants Florida Water Environment Association Utility Council and South Florida Water Management District appeal the district court’s order approving a consent decree between [EPA] and a group of environmentalist organizations. The consent decree settled a suit filed by the plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the state of Florida. The appellants claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree. Because the appellants have not demonstrated a live case or controversy that would give this court jurisdiction over their case, we dismiss their appeal.


Associated Press in Miami Herald

Here's a portion of that story:

One interested observer was Chris Johnson, chief of water quality technical support for Alabama's Department of Environmental Management. He said if EPA can set standards for Florida it could do it for other states.

"It's certainly kind of precedent-setting," Johnson said. "All states have their eyes on Florida."

Aug 042011

U.S. District Judge Donald Molloy did not mince words in a ruling issued yesterday that upheld congressional authority to delist the gray wolf in the Northern Rocky Mountains.

Gray wolves (Photo courtesy FWS)

“If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits,  I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine,” Molloy said in his order. The rider had invalidated his own decision that found the Fish and Wildlife Service's partial delisting of the Northern Rocky Mountain DPS to be unlawful.

He called the rider “a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law."

Those quotes come from a Center for Biological Diversity press release issued late yesterday after Molloy issued his verdict.

Here's another: The rider "sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”

More excerpts on the way...


Order from CBD page

Molloy issued a 35-page order the same day after his ruling on the constitutional issue. In it, he (1) found that Defenders of Wildlife, et al.'s ESA claims over the delisting were unripe, and (2) ruled against the plaintiffs on their NEPA claims (Defenders of Wildlife v. Hall, 08-14-M-DWM, D. Mont.)

Because of the congressional action allowing the delisting of wolves in Idaho and Montana, Molloy said "[t]he only remaining wolves who might potentially be affected by the challenged 2008 10(j) rule are in three or four packs located on Wyoming's Wind River Indian Reservation.  Accordingly, the analysis of the Federal Defendants' jurisdictional challenges must be confined to the effects of 2008 10(j) rule as applies to management of the wolf populations on the Wind River Indian Reservation."

Missoulian coverage (by Rob Chaney). CBD Executive Director Kieran Suckling tells Chaney, "If you have to lose a court case, this is about the best possible way to do it. He lays out the pathway for environmentalists to appeal the decision to the Ninth Circuit and have it overturned."

AP story, which modifies CBD's headline slightly: "Judge reluctantly upholds law stripping Northern Rockies wolves of endangered species status," instead of "Court reluctantly denies challenge to congressional rider that stripped wolves of protection "

New West's take links to a story in the  Lewiston Tribune that quotes Suckling saying, "“I’ve never seen anything like it [Molloy's ruling]. He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court.”

Legal Planet analysis of the ruling and what might happen down the road (by Holly Doremus, UC-Berkeley)

Section 1713 is in this spending bill:   Here is the language:, which essentially turns back the clock to a time when Molloy's invalidation of the partial delisting had not taken place:

Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010.

  Howling for Justice blog

Continue reading »

Aug 032011

He did it again. Judge James Redden of the U.S. District Court in Oregon has ruled that a Biological Opinion on the operation of "14 sets of hydroelectric dams, powerhouses and associated reservoirs," is deficient under the ESA (Columbia Snake River Irrigators Association et al v. Evans, 01-640-RE, D. Or.).

Said the judge in his 24-page ruling yesterday: "Federal defendants have failed . . . to identify specific mitigation plans to be implemented beyond 2013. Because the 2008/2010 BiOp's no jeopardy conclusion is based on unidentified habitat mitigation measures, NOAA Fisheries' opinion that FCRPS operations after 2013 will not jeopardize listed species is arbitrmy and capricious."

Here is the opinion from the court's site. It's posted on our site, as well

More links

NWF press release

Aug 032011

Date:  August 3, 2011   Contacts: Adam Fetcher, DOI (202) 208-6416;  Chris Tollefson, FWS (202) 247-7417

FWS fact sheet   Wyo. Gov. Mead's press releaseMead's letter to Dan Ashe, and Earthjustice statement (also, scroll down)

Salazar, Ashe Finalize Agreement with Wyoming on Revised Gray Wolf Management Plan

WASHINGTON DC - Secretary of the Interior Ken Salazar and U.S. Fish and Wildlife Service (Service) Director Dan Ashe today announced that the Service has reached an agreement with the State of Wyoming that will result in revisions to the state’s management plan for the gray wolf. The points of agreement, first announced in principle in early July, promote the management of a stable, sustainable population of wolves and pave the way for the Service to return wolf management to Wyoming.

“The recovery of the gray wolf serves as a great example of how the Endangered Species Act can work to keep imperiled animals from sliding into extinction. The agreement we’ve reached with Wyoming recognizes the success of this iconic species and will ensure the long-term conservation of gray wolves,” said Secretary Salazar. “I look forward to working with Wyoming to implement this responsible management approach guided by science.”

Under the points of agreement, the State of Wyoming will develop and implement a wolf management plan to maintain a healthy wolf population at or above the Service’s recovery goals, provide for genetic connectivity with other wolf subpopulations in the Northern Rockies, and otherwise ensure that gray wolves in Wyoming are managed so that they will not need to be returned to the Federal List of Endangered and Threatened Wildlife.

“This important agreement enables us to recognize the successful recovery of the gray wolf across the Northern Rocky Mountains. This success is a testament to years of hard work by the states, tribes, landowners and our other conservation partners, all of whom have enabled us to get where we are today,” said Director Ashe. “Responsible management by the state wildlife professionals of the Wyoming Game and Fish Department– which includes regulated, limited trophy game hunts in certain areas similar to those conducted for other game species like elk and mountain lions – will ensure the long-term conservation of this population of wolves.”

Once Wyoming incorporates the revisions into the wolf management plan, the Service will move forward with a proposed rule to delist the gray wolf in Wyoming. That proposed delisting rule will be subject to public and peer review as part of a formal rulemaking process, and a final determination to delist wolves in Wyoming and return management of the species to the State will be dependent upon corresponding changes also being made to Wyoming state statutes and regulations. Until a final determination to delist gray wolves is published, wolves in Wyoming will remain fully protected under the Endangered Species Act.

The Northern Rocky Mountain wolf population is biologically recovered, with more than 1,650 wolves and over 110 breeding pairs. It has exceeded recovery goals for 11 consecutive years, fully occupies nearly all suitable habitat, and has high levels of genetic diversity and gene flow within the region’s meta-population structure. Under state management, the Service expects the Northern Rocky Mountain wolf population will be maintained above recovery levels and no longer faces a risk of extinction.

A fact sheet about the agreement and its provisions is available here.

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.

America’s fish, wildlife and plant resources belong to all of us, and ensuring the health of imperiled species is a shared responsibility. The Service is working to actively engage conservation partners and the public in the search for improved and innovative ways to conserve and recover imperiled species.

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:


More links:

FWS gray wolf page

Wyo. governor eager to present views on sage-grouse

Governor Mead and Secretary Salazar move toward returning Control of Wolves to Wyoming

Recent FWS/DOI releases mentioning the gray wolf

08/03/2011 Salazar, Ashe Finalize Agreement with Wyoming on Revised Gray Wolf Management Plan
05/04/2011 Interior Announces Next Steps in Protection, Recovery, and Scientific Management of Wolves
03/18/2011 Interior Announces Proposed Settlement of Gray Wolf Lawsuit
10/26/2010 Endangered Species Act Protections Reinstated for Northern Rocky Mountain Wolf Population
08/05/2010 Statement of Assistant Secretary Strickland Regarding Court Ruling on the Northern Rocky Mountain Gray Wolf
05/13/2010 Fish and Wildlife Service Celebrates Endangered Species Day
04/12/2010 Secretary Salazar Announces Nearly $66 Million in Grants to Conserve Habitat of Threatened and Endangered Species
05/13/2009 Fish and Wildlife Service Celebrates Endangered Species Day
01/14/2009 Service Removes Western Great Lakes, Portion of Northern Rocky Mountain Gray Wolf Populations from Endangered Species List

Earthjustice statement on FWS-Wyoming agreement:

On August 3, 2011, the U.S. Fish and Wildlife Service announced it had reached an agreement with Governor Mead of Wyoming on possible revisions to Wyoming’s wolf management scheme. Under the agreement, Wyoming would be able to retain its predator status for wolves in nearly 90% of the state (which allows unlimited wolf killing and outright persecution of wolves), and could even pursue aerial gunning of wolves within the small portion of the state where wolves would instead be designated as a “game” species, subject to hunting.

Earthjustice attorney Doug Honnold offered this response: “Wyoming has once again succeeded in strong-arming the FWS into submission, giving tentative approval to an approach to wolves that harkens back to years gone by when wolves were virtually exterminated in the western United States. After all the efforts to promote wolf recovery in the Yellowstone area, this is a major step backward for wolf recovery.”