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  • Audio file (If file doesn’t begin playing immediately, right-click to download it and then listen) USGS links Assessment of undiscovered oil resources in the Bakken and Three Forks Formations, Williston Basin Province, Montana, North Dakota, and South Dakota, 2013 Input-form data for the U.S. Geological Survey assessment of the Devonian and Mississippian Bakken and Devonian Three [...]

  • Other links Pesticide report leaves tough questions unanswered (Defenders of Wildlife) Feds Are Failing to Protect Endangered Species From Pesticides (Center for Biological Diversity) Press release from National Research Council (4/30/2013) Federal Agencies Should Use a Common Approach to Evaluate Risks That Pesticides Pose to Endangered and Threatened Species WASHINGTON — When determining the potential effects [...]

  • “W.Va. members of Congress promise action against EPA” is the headline in the West Virginia Record, whose article noted that 80 percent of the state’s congressional delegation had posted press releases criticizing the D.C. Circuit’s decision that said EPA had the authority to partially revoke a permit for the Spruce Mine. (Only Jay Rockefeller appears [...]

  • The National Academy of Sciences’ National Research Council will release a report next week evaluating the effects of pesticides on threatened and endangered species. Here’s the statement from NAS: Evaluating Risks That Pesticides Pose to Endangered, Threatened Species – New Report A new report from the National Research Council examines how the U.S. Environmental Protection [...]

  • U.S. District Court Judge Joseph C. Spero dismissed an ESA citizen suit seeking to force consultation under the ESA “regarding the effects of 382 registered pesticides on endangered and threatened species” (Center for Biological Diversity v. EPA, 11-293-JCS, N.D. Cal.). “Plaintiffs have not pled sufficient facts to show that the EPA was required to reinitiate [...]

  • The D.C. Circuit reversed and remanded a lower court decision that had scolded EPA for revoking a Clean Water Act permit that already had been approved by the U.S. Army Corps of Engineers (Mingo Logan Coal Co. v. U.S. EPA, 12-5150, 4/23/13). Wrong, the appeals court said. “[W]e reverse the district court insofar as it [...]

  • Daily Digest (April 19, 2013): Asian elephant shot, loggerhead sea turtle egg snatcher sentenced, DOI budget proposed

    Catching up on the Fish and Wildlife Service: The service’s main page features the following news releases: FWS is investigating the shooting of an Asian elephant traveling with Ringling Brothers and Barnum and Bailey Circus in Tupelo, Miss. “The incident occurred in the early morning of April 9, 2013, outside the Bancorp South Arena,” the [...]

  • Daily Digest (April 17, 2013)

    The American Bird Conservancy is touting a study that concludes feral cats are killing endangered Hawaiian petrels. The proof is in the pictures, ABC said. For the first time, videos were taken showing cats preying on petrels. In one, a feral cat “wait[ed] near the entrance of a burrow for over one hour.  When the [...]

  • Link to the full document The Obama Administration today released its National Fish, Wildlife and Plants Climate Adaptation Strategy, which the service said “provides a roadmap of key steps needed over the next five years to reduce the current and expected impacts of climate change on our natural resources, which include: changing species distributions and [...]

  • Audubon writer Ted Williams suspended, pulled from masthead, for Orlando Sentinel column on feral cats

    Update, 3/25/13: The media are starting to take note of Williams’ suspension. See the article and the list of links below for more coverage of this story. Veteran conservation journalist Ted Williams, who for years has penned the Incite column for Audubon magazine, has been suspended and had his name removed from the publication’s masthead, [...]

SCOTUS declines to review tri-state water dispute

 Posted by on June 28, 2012  Supreme Court
Jun 282012
 

Here’s some Supreme Court news we overlooked: On Monday, the court, by not granting petitions for writs of certiorari filed by Alabama, Florida and Southeastern Federal Power Customers, essentially validated Atlanta’s right to water from Lake Lanier (Docket).

The 11th Circuit Court of Appeals last year reversed a district court ruling, finding:

ACT and ACF basins

First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the [Rivers and Harbors Act]. The Corps’ denial of Georgia’s 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County’s contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and [1958 Water Supply Act].

Coverage of the non-decision decision can be found here, here and here (scroll over those links to see the sources).

Links

More legal background, courtesy of SCOTUSBlog

These documents concern the D.C. Circuit’s decision in Feb. 5, 2008, that an agreement to reallocate Lake Lanier’s storage space “constitutes a major operational change on its face and has not been authorized by Congress.” The court reversed the district court’s decision. Litigation continued in the 11th Circuit.

Docket: 08-199
Title: Georgia v. Florida, et al.
Issue: The validity of, and ability of Florida and Alabama to challenge, a settlement agreement involving water allocation from Lake Lanier in Georgia.

Supreme Court grants review of 9th Circuit Clean Water Act decisions

 Posted by on June 25, 2012  Daily Links, EPA, Supreme Court
Jun 252012
 

Two major Ninth Circuit decisions will be reviewed by the Supreme Court, which means that those decisions are almost surely in danger of being overturned.

The cases are Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (11-460) and a pair of consolidated petitions, Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center (11-347).

Here I will cut and paste the summary at Legal Planet provided by law professor Richard Frank, Director of the California Environmental Law and Policy Center at UC-Davis:

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council arises out of a Ninth Circuit decision interpreting the Clean Water Act’s NPDES permit requirements expansively.  In its 2011 opinion, the Court of Appeals ruled that Los Angeles County must obtain permits for urban runoff that collects in channelized river systems maintained and “improved” by county flood control agencies.

Decker v. Northwest Environmental Defense Center, No. 11-338, and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347, are consolidated petitions challenging a controversial 2010 Ninth Circuit decision.  That opinion concluded that channelized stormwater runoff from logging roads that eventually flows into streams and rivers requires an NPDES permit from federal regulators under the Clean Water Act.  In so ruling, the Court of Appeals held that EPA’s so-called silviculture rule does not exempt such logging-related runoff from the Act’s permit requirements.

Frank previewed the cases Thursday. SCOTUSBlog.com has briefs.

In both cases, as noted by Frank, the court sought the opinion of the Solicitor General. A lot of good that did the government: The court rejected the recommendations of the Obama Administration’s top lawyer to deny certiorari of each decision.

I don’t think I’m going out on a limb here in predicting that the Ninth Circuit’s decision to mandate that logging runoff be regulated as industrial stormwater will not survive its date with the justices this fall.

Incidentally — or perhaps not incidentally — Justice Stephen Breyer recused himself from consideration of the petitions. I assume that means he won’t be participating in oral argument either, but have sent an email to the Public Information Office of the Supreme Court in an attempt to ascertain that information.

My best guess as to why Breyer recused himself — and why he likely would continue to remain “recused” — is that his brother, U.S. District Judge Charles R. Breyer from the Northern District of California, sat by designation on the Ninth Circuit panel that issued the decision.

House subcommittee cuts funds for endangered species in DOI budget

 Posted by on June 21, 2012  Budget, Daily Links, FWS, Listings
Jun 212012
 

Criticism of the House Appropriations Committee’s Interior subcommittee was fairly easy to find after the subcommittee’s approval yesterday (June 20) of a bill that would cut the Fish and Wildlife Service budget by $317 million – or 21 percent – below the current year. According to the House Approps news release:

The subcommittee bill would reduce spending in the Resource Management account by 15 percent, while “maintaining funding for programs such as invasive species and mitigation fish hatcheries. The bill also cuts several unauthorized FWS programs by up to 50 percent.

The committee report does not appear to be available yet. The report is the textual explanation of the bill, whose section on the Fish and Wildlife Service’s Resource Management budget is reprinted below.

The House news release is here:  (Excerpt: “ ‘This bill cuts spending on programs by more than a billion dollars, and prevents the EPA and other federal bureaucracies from stepping out of their lane and stifling our economic recovery. At the same time, it funds programs that are necessary and important to the American people, including the maintenance of national parks, wildfire fighting and prevention efforts, and the stewardship of the nation’s vast natural resources and federal lands,’ House Appropriations Chairman Hal Rogers said.”)

Here’s the language from the Interior appropriations bill:

UNITED STATES FISH AND WILDLIFE SERVICE

RESOURCE MANAGEMENT

For necessary expenses of the United States Fish and Wildlife Service, as authorized by law, and for scientific and economic studies, general administration, and for the performance of other authorized functions related to such resources, $1,040,488,000, to remain available until September 30, 2014, except as otherwise provided herein: Provided, That not to exceed $14,564,000 shall be used for implementing subsections (a), (b), (c), and (e) of section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) (except for processing petitions, developing and issuing proposed and final regulations, and taking any other steps to implement actions described in subsection (c)(2)(A), (c)(2)(B)(i), or (c)(2)(B)(ii)), of which not to exceed $4,500,000 shall be used for any activity regarding the designation of critical habitat, pursuant to subsection (a)(3), excluding litigation support, for species listed pursuant to subsection (a)(1) prior to October 1, 2011; of which not to exceed $1,123,000 shall be used for any ac­tivity regarding petitions to list species that are indigenous to the United States pursuant to subsections (b)(3)(A) and (b)(3)(B); and, of which not to exceed $1,123,000 shall be used for implementing subsections (a), (b), (c), and (e) of section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) for species that are not indigenous to the United States.

CONSTRUCTION

For construction, improvement, acquisition, or removal of buildings and other facilities required in the con­servation, management, investigation, protection, and utilization of fish and wildlife resources, and the acquisition of lands and interests therein; $17,755,000, to remain available until expended.

LAND ACQUISITION

For expenses necessary to carry out the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460l– 4 et seq.), including administrative expenses, and for acquisition of land or waters, or interest therein, in accordance with statutory authority applicable to the United States Fish and Wildlife Service, $15,047,000, to be derived from the Land and Water Conservation Fund and to remain available until expended, of which, notwithstanding section 7 of such Act (16 U.S.C. 460l–9), not more than $4,000,000 shall be for land conservation partnerships authorized by the Highlands Conservation Act (Public Law 108–421), including not to exceed $160,000 for administrative expenses: Provided, That none of the funds appropriated for specific land acquisition projects may be used to pay for any administrative overhead, planning or other management costs.

COOPERATIVE ENDANGERED SPECIES CONSERVATION FUND

For expenses necessary to carry out section 6 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), $14,129,000, to remain available until expended, of which $2,707,000 is to be derived from the Cooperative Endangered Species Conservation Fund; and of which $11,422,000 is to be derived from the Land and Water Conservation Fund.

NATIONAL WILDLIFE REFUGE FUND

For expenses necessary to implement the Act of Octo­ber 17, 1978 (16 U.S.C. 715s), $11,958,000.

NORTH AMERICAN WETLANDS CONSERVATION FUND

For expenses necessary to carry out the provisions of the North American Wetlands Conservation Act (16 U.S.C. 4401 et seq.), $22,333,000, to remain available until expended.

NEOTROPICAL MIGRATORY BIRD CONSERVATION

For expenses necessary to carry out the Neotropical Migratory Bird Conservation Act (16 U.S.C. 6101 et seq.), $1,893,000, to remain available until expended.

MULTINATIONAL SPECIES CONSERVATION FUND

For expenses necessary to carry out the African Ele­phant Conservation Act (16 U.S.C. 4201 et seq.), the Asian Elephant Conservation Act of 1997 (16 U.S.C. 4261 et seq.), the Rhinoceros and Tiger Conservation Act of 1994 (16 U.S.C. 5301 et seq.), the Great Ape Conservation Act of 2000 (16 U.S.C. 6301 et seq.), and the Marine Turtle Conservation Act of 2004 (16 U.S.C. 6601 et seq.), $4,735,000, to remain available until expended.

STATE AND TRIBAL WILDLIFE GRANTS

For wildlife conservation grants to States and to the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, the Northern Mariana Islands, American Samoa, and Indian tribes under the provisions of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.) and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), for the development and implementation of programs for the benefit of wildlife and their habitat, including species that are not hunted or fished, $30,662,000, to remain available until expended: Provided, That of the amount provided herein, $2,134,000 is for a competitive grant program for Indian tribes not subject to the remaining provisions of this appropriation: Provided further, That $2,866,000 is for a competitive grant program for States, territories, and other jurisdictions with approved plans, not subject to the remaining provisions of this appropriation: Provided further, That the Secretary shall, after deducting $5,000,000 and administra­tive expenses, apportion the amount provided herein in the following manner: (1) to the District of Columbia and to the Commonwealth of Puerto Rico, each a sum equal to not more than one-half of 1 percent thereof; and (2) to Guam, American Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands, each a sum equal to not more than one-fourth of 1 percent thereof: Provided further, That the Secretary shall apportion the remaining amount in the following manner: (1) one-third of which is based on the ratio to which the land area of such State bears to the total land area of all such States; and (2) two-thirds of which is based on the ratio to which the population of such State bears to the total population of all such States: Provided further, That the amounts apportioned under this para­graph shall be adjusted equitably so that no State shall be apportioned a sum which is less than 1 percent of the amount available for apportionment under this paragraph for any fiscal year or more than 5 percent of such amount: Provided further, That the Federal share of planning grants shall not exceed 50 percent of the total costs of such projects and the Federal share of implementation grants shall not exceed 50 percent of the total costs of such projects: Provided further, That the non-Federal share of such projects may not be derived from Federal grant programs.

ADMINISTRATIVE PROVISIONS

The United States Fish and Wildlife Service may carry out the operations of Service programs by direct expenditure, contracts, grants, cooperative agreements and reimbursable agreements with public and private entities. Appropriations and funds available to the United States Fish and Wildlife Service shall be available for repair of damage to public roads within and adjacent to reservation areas caused by operations of the Service; options for the purchase of land at not to exceed $1 for each option; facilities incident to such public recreational uses on conservation areas as are consistent with their primary purpose; and the maintenance and improvement of aquaria, buildings, and other facilities under the jurisdiction of the Service and to which the United States has title, and which are used pursuant to law in connection with management, and investigation of fish and wildlife resources: Provided, That notwithstanding 44 U.S.C. 501, the Service may, under cooperative cost sharing and partnership arrange­ments authorized by law, procure printing services from cooperators in connection with jointly produced publica­tions for which the cooperators share at least one-half the cost of printing either in cash or services and the Service determines the cooperator is capable of meeting accepted quality standards: Provided further, That the Service may accept donated aircraft as replacements for existing air­craft.

Ecological services funding proposed by Obama Administration

Hastings, Gohmert preside over roast of ESA attorney fees

 Posted by on June 19, 2012  Congress, Court calls, Daily Links, ESA, FWS, NMFS
Jun 192012
 

Today’s House Natural Resources Committee, meeting in Room 1324 of the Longworth House Office Building, held the latest in what has turned into a multi-year series of hearings on the federal government’s payment of attorney fees to plaintiffs bringing Endangered Species Act lawsuits.

In the committee’s telling, virtually all of those taxpayer dollars have gone to environmental groups, which are staffed largely by people who have enough money of their own to afford the low wages. They then use those fees to fund even more lawsuits against the Fish and Wildlife Service, and occasionally even against the National Marine Fisheries Service, though NMFS was mentioned sparingly during the hearing.

I felt as if I had seen this show before.  That’s probably because I had, and I’ll ferret out the links to those long-ago hearings as quickly as you can say “Google me,” or perhaps “GPO me,” the meaning of which I’d rather not speculate on right now. GPO’s website contains a trove of transcripts, so I have no doubt I’ll find corroborating evidence that this subject has been explored at length — even, as the lawyers might say, ad nauseam.

In the meantime, there’s a hearing to cover. If you want to watch it, click on the Twitter image below. Our preview of the hearing, which includes a link to attorney fee data obtained by the committee in May, is here.

Also, the obligatory Twitter link. (Incidentally, I think 140 characters is a bit parsimonious. 160 would be just about right.)

Hastings called attorneys for conservation groups “an army of environmental lawyers” who are diverting attention and funding from species recovery.

“Over $21 million has been paid out in attorney fees in recent years,” Hastings said, adding that ”two lawyers received more than $2 million each.”

The chairman of the committee mentioned the Center for Biological Diversity and Wild Earth Guardians by name, alleging that the latter organization received 34 percent of its revenue from attorney fees in 2010.

Apparently it does “pay to play,” he said.

[Addition: The Center disputed Hastings' numbers. CBD's full statement is pasted below, but the gist is this: Instead of more than $2 million, the Center in fact collected $553,000 in 2009, or "about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures." CBD called on Hastings to correct the information. Hastings swiftly responded, ]

In his response, Rep. Edward Markey (D-Mass.) defended the practice of using citizen suits to hold the government accountable. But he began by attacking House Republicans.

“Today, on the House floor, Republicans are pursuing their great American giveaway: two omnibus bills would hand out millions of acres of land to oil and gas companies, hand-pick old-growth forests for logging interests and trample on the rights of Americans working, living of traveling within 100 miles of our borders.”

“They’re attacking the ability of citizens to bring suits against the federal government when it fails to follow the law.”

Markey delivered a riposte to the committee’s May analysis, which found $13 million had been spent on fees in ESA cases since 2009. Last year, Republicans proposed cutting the endangered species program by $72 million.

Markey said the cost of losing ESA cases represents two-tenths of 1 percent of all fees paid ($8.7 billion) from the Treasury Department’s Judgment Fund since 2009.

In 2006, the Bush Administration paid out $18.7 million in one telecommunications case lost by the government, Markey said.

Markey noted that funds coming from the Judgment Fund don’t count against the agencies’ own budgets.

-30-

CBD statement

For Immediate Release, June 27, 2012

Contact:        Bill Snape, (202) 536-9351

Hastings Relies on False Information in Attacks on Endangered Species Cases

WASHINGTON, D.C.— The Center for Biological Diversity today called on Rep. Doc Hastings (R-Wash.) to correct false information about attorney fees collected in cases involving the Endangered Species Act. A June 19 statement posted on the House Natural Resources Committee’s website incorrectly claims that U.S. Department of Justice documents showed the Center had collected more than $2 million in attorney fees from fiscal year 2009 to present. In fact, the amount the Center received was $553,000 — about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures.

In his latest attack on the Endangered Species Act, Hastings is trying to claim that environmental groups are getting rich from lawsuits designed to protect our most imperiled plants and animals from extinction.

“The government’s own figures simply don’t bear out the tired, debunked story that Representative Hastings is peddling,” said Bill Snape, senior counsel with the Center. “In this case, Hastings’ calculations are just plain wrong. If we’re going to have a real discussion about the best way to save endangered species, it has to be based on facts.”

Hastings, the chairman of the House Natural Resources Committee, requested attorney fees figures from the Department of Justice for Endangered Species Act cases from fiscal year 2009 to present. The Justice Department documents show 24 payments to the Center during those years, for a total of $552,897. The typical fee was less than $20,000, often for work on cases that stretched over several years. Many of the cases originated during the Bush administration, which the Interior Department’s own inspector general found was guilty of political interference in forcing science-based decisions to be overturned by Republican appointees.

Among the cases the Center worked on during that period:

A historic agreement to speed up protection decisions on 757 of the country’s most imperiled but least protected plants and animals;

  • Restoring critical habitat protection for species that had it curtailed due to political meddling by the Bush administration;
  • Winning a court order requiring the Fish and Wildlife Service to begin planning for the recovery of the jaguar, one of the most imperiled mammals in North America.

Importantly, the figures from Justice also show that industry groups collected a similar amount in attorney fees (about $550,000) during that same time period in lawsuits opposing Endangered Species Act protections.

“We go to court when the government fails to follow its own laws, meant to protect plants and animals from extinction,” Snape said. “When we prevail — that is, when a judge agrees the government must be held accountable — we’re eligible for attorney fees, at less than fair-market value. To inflate these numbers reeks of a cynical political ploy to gin up another misleading talking point. Unfortunately, it’s consistent with Chairman Hastings’ past rhetoric, which conveniently downplays the success of endangered species recovery efforts.”

The Center sent Hastings a letter today asking him to correct the errors on the House committee’s website.

Hastings’ response

DOJ Documents Confirm Center for Biological Diversity Received Millions in Taxpayer Funds from ESA-Related Lawsuits

WASHINGTON, D.C., June 27, 2012 - The Center for Biological Diversity today sent a letter to House Natural Resources Committee Chairman Doc Hastings claiming their organization had only received $553,000 in taxpayer funds resulting from Endangered Species Act (ESA) related attorney fees and court cases. This claim conflicts with data obtained from the Department of Justice (DOJ), which shows over $2 million in taxpayer dollars have been paid out to the Center for Biological Diversity and their attorneys for cases open between 2009-2012.The Center for Biological Diversity appears to have derived their erroneous number by including only checks made out directly to the Center for Biological Diversity over a select period of years. Attorney fees are typically paid out to the attorney of record. The Center for Biological Diversity is conveniently failing to include the majority of funds that were paid directly to their hired lawyers. Nine of the lawyers who have received payouts are currently employed by the Center for Biological Diversity.

“American taxpayers have a right to know how much of their money is going to pay attorneys and settlement costs for lawsuit-happy organizations that make a living off of suing the federal government. The numbers from the Justice Department speak for themselves,” said Chairman Hastings. “One frequent collector of taxpayer dollars spent a week inventing a way to misconstrue and hide data to make it appear as though they haven’t received millions in taxpayer dollars. The most direct way to have openness and transparency on exactly what funds a group has taken from taxpayers in ESA-related settlement and attorney fees is for them to publicly reveal all of their data for the past two decades.”

On March 19, 2012, Chairman Hastings sent a letter to the Environment and Natural Resources Division of the Department of Justice asking for detailed information on how much taxpayer money is being spent on ESA-related litigation and settlements. In response to this request, DOJ ran a search through their Case Management System (“CMS”) and provided the Committee information based on all cases where the ESA was one of the statutes at issue in the litigation.

According to this document from the DOJ containing 276 pages of case information, the Center for Biological Diversity was involved in over 50 individual cases, open between 2009 and 2012, where they were the lead plaintiff. The amount of attorney fees and court costs associated with these cases is $2,286,686.91. Of this amount, $138,114.45 was in court costs and $2,148,572.46 was in attorney fees.

These five examples alone of court cases filed by the Center for Biological Diversity where CBD received attorney fee payments between 2009-2012 far exceeds the $553,00 that the Center for Biological Diversity claims to have received:

  • Center for Biological Diversity v. Environmental Protection Agency, et. al. in California; paid $172,000 on November 22, 2010 to attorney for CBD Justin Augustine.
  • Center for Biological Diversity et. al., v. U.S. Army Corps of Engineers in Montana; paid $165,000 on March 23, 2009 to attorney for CBD Geoff Hickox.
  • Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $159,044 on February 9, 2012 to attorney for CBD Melanie Kay.
  • Center for Biological Diversity v. U.S. Fish and Wildlife Service in Arizona; paid $95,000 on April 23, 2010 to attorney for CBD Geoff Hickox.
  • Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $51,866 on August 13, 2009 to attorney for CBD John T. Buse.

###

Printable PDF of this document

Contact: Jill Strait, Spencer Pederson or Crystal Feldman 202-226-9019

Shovelnose sturgeon protection upheld on “similarity of appearance” grounds

 Posted by on June 18, 2012  Court calls, Daily Links, FWS, Listings
Jun 182012
 

The U.S. District Court for the District of Columbia — Judge James E. Boasberg, that is — has upheld protections for the shovelnose sturgeon because it looks so much like the pallid sturgeon, which is listed as endangered (Illinois Commercial Fishing Association v. Salazar, 10-1642 JEB, D.D.C.).

The Fish and Wildlife Service listed the shovelnose as threatened partly on the basis that it looked so much like the endangered pallid sturgeon.

The judge said that listing the shovelnose as threatened is justified to protect the endangered pallid.

Can you tell them apart?

“Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit,” Boasberg said.

It’s not easy to tell the difference between the two fish.

The judge said that even “fish biologists and commercial fishermen – both of whom have more specialized knowledge of fish species than enforcement personnel — have trouble distinguishing between the shovelnose sturgeon and pallid sturgeon.”

Here are some excerpts, in no particular order:

“If trained fish biologists struggle to distinguish between the shovelnose and pallid sturgeon – even when aided by scientific tools designed specifically for that purpose – it is certainly reasonable to infer that enforcement personnel will have at least as much (and probably more) trouble doing so. Unlike fish biologists and commercial fishermen, the agents who enforce the ESA do not focus on fish, let alone a particular species of fish. Rather, they are responsible for enforcing ESA protections for all listed species within their jurisdiction, from plants and birds to reptiles and mammals.”

“The second criterion for listing a species as threatened or endangered under the similarity-of-appearance provision is that enforcement personnel’s “substantial difficulty” poses an additional threat to an endangered or threatened species. See 16 U.S.C. § 1533(e)(B). This requirement is met here because the evidence in the record demonstrates that (1) take of pallid sturgeon incident to commercial shovelnose-sturgeon fishing is a threat to the pallid sturgeon, and (2) the inability to effectively enforce the ban on taking pallid sturgeon allows fishermen to take the endangered fish with impunity, rendering the ban futile.”

“As discussed in Section III.A.2, supra, a prohibition on the take of shovelnose sturgeon substantially advances law-enforcement efforts to protect the pallid sturgeon. It eliminates the difficult law-enforcement task of attempting to distinguish between the species. In addition, it facilitates prosecution of poachers who might otherwise be able to avoid punishment by arguing that they reasonably believed they had lawfully taken a shovelnose sturgeon.”

“Listing the shovelnose as a threatened species under the similarity-of-appearance provision also furthers the ESA’s goal of conserving the endangered pallid sturgeon. Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit. For instance, scientists have observed a large difference in the mortality rates and maximum ages of pallid sturgeon in areas with commercial shovelnose harvest compared to those without. See AR 70 (observed mortality rate of 37-39% in areas with commercial shovelnose-sturgeon harvest compared to 12% mortality rate in areas without); see also AR 2982-84 (study finding difference in age classes between areas with commercial shovelnose harvest and without); AR 93 (published study noting that “current recovery efforts underway for the endangered pallid sturgeon may be jeopardized” by commercial shovelnose fishing); AR 3030 (study stating that “[i]ncidental and illegal harvest of pallid sturgeon has been documented in the Mississippi River, and this may be a significant impediment to survival and recovery of the species in some portions of its range”) (internal citations omitted).”

Catching up (somewhat): Gamesa won’t go forward with wind farm in Indiana bat habitat; timber thinning project nixed by judge who finds elimination of lynx analysis units should have been analyzed under NEPA; shovelnose sturgeon listing upheld on “similarity of appearance” grounds

 Posted by on June 15, 2012  BiOps, Court calls, Daily Links, ESA, FWS, Listings, NEPA
Jun 152012
 

The law firm that has been threatening to sue over a planned wind farm in Pennsylvania has gotten its wish: The energy company that wanted to build the project has withdrawn it.

In a blog post June 13, Meyer Glitzenstein & Crystal said that Gamesa decided not to move forward “after years of controversy,” no doubt engendered in part by the numerous notice letters sent by MG&C on behalf of its environmental clients.

Here’s the item in full from the law firm’s Wildlife and Environment Blog:

Indiana bat

Company Pulls The Plug On Industrial Wind Farm In Critical Indiana Bat Habitat

by Meyer Glitzenstein & Crystal

After years of controversy, energy company Gamesa has withdrawn its plans to build an industrial wind power facility near Shaffer Mountain, Pennsylvania.  The project would have been placed in an important migratory corridor for Golden eagles and in the midst of a maternity colony of critically endangered Indiana bats.  This would have been the first time that a wind project – which according to leading experts would have killed and harmed Indiana bats due to turbine collisions and a pressurizing condition called barotrauma – would be sited in such a sensitive location for an endangered species.  On behalf of several conservation organizations and community members, we submitted multiple notice letters and comments to the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers detailing various violations of the Endangered Species Act, Clean Water Act, and National Environmental Policy Act, which inevitably influenced the company’s decision to withdraw from this project in lieu of more sustainable project locations elsewhere that will better allow for clean, renewable energy without sacrificing our nation’s important natural resources.

More WE-Blog (and other) links

Thinning project doesn’t survive court challenge related to lynx habitat

The Split Creek project, which would involve the precommercial thinning of about 7,000 acres of lodgepole pine in the Caribou-Targhee National Forest, cannot proceed because of NEPA and ESA violations, a federal judge ruled June 6 (Native Ecosystems Council v. U.S. Forest Service, 11-212-CWD, D. Idaho).

U.S. Magistrate Judge Candy Dale said the Forest Service should have prepared an Environmental Impact Statement when it issued a revised map in 2005 that eliminated eight Lynx Analysis Units in the forest, lifting restrictions on thinning for about 400,000 acres.

Canada lynx

The Forest Service issued an EA on the project, but Dale said the significance of the project warranted preparation of an EIS. In addition, the service illegally “tiered” the project under NEPA by relying on the 2005 revised map, which itself had not been analyzed under NEPA. Finally, the service should have consulted with the Fish and Wildlife Service over whether the revision of the 2005 map — and with it, the elimination of nearly 400,000 acres of land within the LAUs — would jeopardize lynx or their critical habitat.

Alliance for the Wild Rockies, a co-plaintiff in the case, issued a press release June 7. (Excerpt: “Mike Garrity, Executive Director of the Alliance for the Wild Rockies said, “In essence, the Court stopped the project because the Forest Service simply changed a map in 2005 to eliminate protective restrictions for lynx on 400,000 acres of the Caribou-Targhee National Forest without following the requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The agency then claimed that it wasn’t lynx habitat and authorized tree cutting on 7,000 acres of lodgepole pine located within the Island Park and Madison-Pitchstone Plateaus Subsections of the Caribou-Targhee National Forest.”)

Here’s the shovelnose sturgeon decision. More on this decision in a bit.

Can you tell them apart?

 

 

 

 

 

 

Colorado/New Mexico conservation area moves ahead; Salazar to make announcement today

 Posted by on June 15, 2012  Conservation areas, Daily Links, FWS
Jun 152012
 

Sangre de Cristo Mountains (Photo by Steve Garufi)

Protection of the Sangre de Cristo Mountains in Colorado will get a big boost today when Interior Secretary Ken Salazar announces an agreement with billionaire hedge fund manager and conservationist Louis Bacon. (press release here)

The Denver Post reported this morning that the announcement, to be made at 11 a.m. Mountain Time (1 pm ET), concerns Bacon’s offer of 90,000 acres’ worth of easements on his land in the mountain range.

This morning, Bacon’s name was added to the list of speakers at the Fort Garland Museum, where DOI had already said Salazar would “make a major conservation announcement for Colorado and the nation.” (Later today, ESWR will post an audio file of the subsequent teleconference, scheduled for 11:45 am MT, 1:45 pm ET.)

Louis Bacon

But let’s let Denver Post reporter Bruce Finley tell the story, since he had an interview with Salazar yesterday and appears to have broken the news. Click the link in the second paragraph above for the full text. Incidentally, as you might have guessed, a “fourteener” peak is one that rises more than 14,000 feet above sea level.

90,000 Colorado acres offered for national protected area

By Bruce Finley
The Denver Post

The proposed Sangre de Cristo Conservation Area is advancing today with an unprecedented offer to protect 90,000 acres that includes three fourteener peaks — aimed at encouraging other private landowners to participate.

Interior Secretary Ken Salazar said he will announce an agreement with billionaire New York hedge- fund manager and conservationist Louis Bacon for an easement preventing future development.

This would be one of the largest easements the federal government has secured — and the largest parcel the Obama administration has protected in its campaign to preserve pristine landscapes for wildlife and recreation.

Bacon’s holdings span grasslands, forests and tundra between Great Sand Dunes National Park and La Veta Pass on the east side of the San Luis Valley — including Mount Lindsey and Blanca and Little Bear peaks. The parcel would fill a crucial gap in the emerging 5-million-acre corridor through Colorado and New Mexico.

* * *

The Sangre de Cristo mountains are one of the nation’s last relatively uninterrupted migratory corridors for wildlife including deer, elk, cougars, black bears and bighorn sheep. Federal agencies own significant portions. But Bacon, media mogul Ted Turner in New Mexico and owners of the Taylor Ranch east of San Luis control much of the land extending south from Great Sand Dunes National Park along the mountains and the Rio Grande River toward toward Santa Fe.

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En banc 9th Circuit says Forest Service must consult on mining NOI’s in critical habitat

 Posted by on June 12, 2012  Court calls, Critical habitat, Daily Links, FWS, NMFS
Jun 122012
 

An en banc panel of the Ninth Circuit Court of Appeals has held that the Forest Service must consult with FWS and/or NMFS before approving Notices of Intent to conduct mining in endangered species’ critical habitat (Karuk Tribe of California v. U.S. Forest Service, 05-16801, 6/1/2012).

In its June 1 ruling, the court overturned a previous decision issued by a three-judge panel that included Circuit Judges William A. Fletcher and Milan D. Smith Jr., and Senior U.S. District Judge James D. Todd, sitting by designation from the Western District of Tennessee. Fletcher dissented from the court’s initial opinion.

K-14 – Lower Seiad and Portuguese Creek Claims

This time around, Fletcher got to write the opinion, from which Smith and Chief Judge Alex Kozinski dissented. Circuit Judges Mary Murguia and Sandra Ikuta joined those two in all respects but one — the section where Smith said that the majority had “render[ed] the Forest Service impotent to meaningfully address low-impact mining,” which “effectively shuts
down the entire suction dredge mining industry in the states within our jurisdiction.”

“The informal Notice of Intent process allows projects to proceed within a few weeks,” Smith wrote. “In contrast, ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for months or years.”

District rangers made “affirmative, discretionary decisions”

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

Authorization of action brings NOI approval under ESA’s umbrella: Majority

The court took note of the Forest Service’s contention that “approval of a NOI is merely a decision not to regulate the proposed mining activities. See 70 Fed. Reg. at 32,720; id. at 32,728 (“a notice of intent to operate was not intended to be a regulatory instrument”).”

“But the test under the ESA,” the court continued, “is whether the agency authorizes, funds, or carries out the activity, at least in part. 50 C.F.R. § 402.02 (emphasis added).”

In addition, the court said that in its 1988 Penfold decision (full cite below), “we held that BLM’s review of notice mines was a ‘federal action’ — albeit, a ‘marginal’ instead of a ‘major’ action. Under Section 7 of the ESA, a federal agency action need not be ‘major’ to trigger the duty to consult. It need only be an ‘agency action.’ Thus, Penfold cuts against rather than in favor of the Forest Service and the Miners.”

The dissenters saw things differently. Here are some excerpts:

Until today, it was well-established that a regulatory agency’s “ ‘inaction’ is not ‘action’ ” that triggers the Endangered Species Act’s (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency’s decision not to act forces it into a bureaucratic morass.

. . .

Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.

Background from the decision:

The Tribe brought suit in federal district court alleging that the Forest Service violated the ESA, the National Environmental Policy Act (“NEPA”), and the National Forest Management Act (“NFMA”) when it approved the four NOIs to conduct mining in and along the Klamath River in the Happy Camp District. Karuk Tribe of Cal. v. U.S. Forest Serv. (“Karuk I”), 379 F. Supp. 2d 1071, 1085 (N.D. Cal. 2005).

 The Tribe sought declaratory and injunctive relief. The New 49’ers and Raymond Koons, an individual who leases several mining claims to the New 49’ers on the Klamath River, intervened as defendants in the suit. Id. at 1077. Initially, the Tribe also  challenged five Plans of Operations approved by the Forest Service during the 2004 mining season, but the Tribe dropped those claims in April 2005 after the agency agreed in a stipulated settlement that it violated the ESA and NEPA when it approved the Plans. In other words, the Forest Service agreed that it had a duty under the ESA to consult with the appropriate wildlife agencies, and under NEPA to prepare additional environmental review documents, before approving the Plans.

In July 2005, the district court denied the Tribe’s motion for summary judgment and ruled against the Tribe on all remaining claims. Id. at 1103. Briefing on appeal was stayed by agreement of the parties until we decided a case involving suction dredge mining in the Siskiyou National Forest in Oregon. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545 (9th Cir. 2009). When briefing resumed, the Tribe pursued only the ESA claim, arguing that the Forest Service violated its duty to consult with the expert wildlife agencies before approving the four NOIs.

In April 2011, a divided panel of this court affirmed the district court’s denial of summary judgment, holding that the Forest Service’s decision to allow proposed mining activities to proceed pursuant to a NOI did not constitute “agency action” under the ESA. Karuk Tribe v. U.S. Forest Serv. (“Karuk II”), 640 F.3d 979 (9th Cir. 2011). We agreed to rehear the case en banc. 658 F.3d 953 (9th Cir. 2011).

Armstrong’s decision

In her decision in 2005, U.S. District Judge Saundra Brown Armstrong said the “Ninth Circuit’s holding in [Sierra Club v.] Penfold 857 F. 2d 1307 (1988)] makes clear that a federal agency’s review of mining “notices” is not a “federal action” within the meaning of NEPA. Although this factor is also not necessarily dispositive with respect to an ESA claim, it weighs heavily in favor of a finding that the Forest Service[] does not “authorize” an NOI merely by reviewing it and, thus, the NOI review process, in and of itself, is not a “federal action.”

Coverage of the decision, as well as links to the oral argument and briefs filed in the case, can be found at turtletalk.wordpress.com, which looks to be an excellent place to keep abreast of legal developments affecting Native Americans.

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Hastings calls another hearing on costs, impacts of ESA litigation

 Posted by on June 8, 2012  Court calls, Daily Links, ESA, FWS, Listings, NMFS
Jun 082012
 

Endangered Species Act litigation has been a favored subject of House Natural Resources Committee chairmen for years, and Rep. Doc Hastings (R-Wash.) is no exception.

But Hastings may be unique in scheduling a hearing on ESA litigation so soon after the committee heard witnesses hold forth on that very subject.

Doc Hastings (R-Wash.)

In December, the committee held a hearing, ”The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts.”

He’ll take another look on June 19, at a hearing entitled “Taxpayer-Funded Litigation: Benefitting Lawyers and Harming Species, Jobs and Schools.”

A committee spokesperson said no more details — such as a witness list — are available, but we’re guessing that Hastings will grill Interior Department and Fish and Wildlife Service officials in an attempt to find out exactly how much is spent dealing with litigation — not just in attorney fees, but in complying with court orders and settlements. In March, he sent a letter to Assistant Attorney General for Environment and Natural Resources Ignacia Moreno asking for information on ESA cases handled by DOJ since 2009.

Assistant Attorney General Ronald Weich’s letter in response is here, and the attachments are here.

Then at the end of May, Hastings fired off some more letters, to Interior Secretary Ken Salazar, NOAA Administrator Jane Lubchenco, Bonneville Power Administration  CEO Steve Wright, and Moreno, requesting details on four cases costing the government more than $7 million in attorney fees, as well as on the settlements between FWS and WildEarth Guardians, and FWS and the Center for Biological Diversity, that involve close to 800 species.

The officials were asked to provide answers by June 14. That information — or however much of it they can provide — is likely to be a bone of contention at the upcoming hearing.

Both the Fish and Wildlife Service and critics of the ESA have claimed that lawsuits brought by environmental groups sap agency resources that could be used to focus on species recovery and listings.

Environmentalists, however, argue that without the lawsuits, species that deserve federal protection would not get it. It was hoped that the FWS-WEG-CBD settlements reached last year would reduce the time agency biologists and others spend dealing with litigation.

Virtually all attorney fees awarded in ESA cases lost or settled by the government come from the Treasury Department’s Judgment Fund. Only in special circumstances is the money deducted from the agency’s program budget. A GAO report released in April found that between March 2001 and September 2010, more than $21 million was paid in attorney fees involving ESA cases.