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

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 on April 27, 2012
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.

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

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…

 

 

 

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

Sonoran bald eagle not listed (again)

 Posted by on April 20, 2012
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)

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

Apr 192012
 

These kids are remarkably talented. A screenshot of the 40 semifinalists’ work is below. Their creations will be exhibited at the Ogden Museum of Southern Art/University of New Orleans starting June 14.

Here’s the news release announcing the winners. The grand prize winner “will be honored at the Association of Zoos and Aquariums’ Congressional Reception in Washington, D.C. on May 9, 2012 and have his/her name engraved on a special trophy. In addition, the winner will receive an art lesson from Wyland, a plaque, and art supplies. First-place category winners will receive a plaque and art supplies.”

Apr 192012
 

Activities outside the range of the polar bear, including emissions of greenhouse gases, won’t be considered in determining the “take” of the bears under the Endangered Species Act, if a Fish and Wildlife Service proposal published April 19 becomes final.

“None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear,” the proposed regulatory language says

Here’s the explanation of that paragraph (Paragraph 4) in the proposal, which summarizes the service’s thinking:

[W]e find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear’s range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be unaffected by Alternative 2 for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear (including some areas within the State of Alaska) would be consistent with the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.

Environmental groups expressed their displeasure with the proposal.

“The proposed rule severely undermines protection for polar bears by exempting from portions of the Endangered Species Act all activities that occur outside of the bears’ range. But the species is endangered precisely because of activities occurring outside the Arctic — namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice,” the Center for Biological Diversity said in a news release (linked above).