Sep 302015
 

The Tenth Circuit Court of Appeals has released the audio of the oral arguments that took place on Monday in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service (14-4151). The government is appealing a district court decision that found FWS's take regulations for the Utah prairie dog ran afoul of the Commerce Clause.

For briefs filed in the case, see Pacific Legal Foundation's web site   (click "Documents" on the left)

Editor's note: I want to personally thank the Tenth Circuit Clerk's office for responding promptly to my request for the audio file.

Sep 302015
 

Go here to watch House hearing

Oversight Hearing on:
  • "Respecting State Authority, Responsibilities and Expertise Regarding Resource Management and Energy Development"
  • Hearing Memo
Member Statements:

The Honorable Rob Bishop
Chairman

Witnesses and Testimony:

The Honorable Steve Bullock
Governor, State of Montana
(Disclosure Form)

The Honorable Dennis Daugaard
Governor, State of South Dakota
(Disclosure Form)

The Honorable Gary Herbert
Governor, State of Utah
(Disclosure Form)

The Honorable Matt Mead
Governor, State of Wyoming
(Disclosure Form)

Related Documents:

Senate EPW subcommittee hearing (audio from CapitolHearings.org)

Webcast here

Files

 

Sep 292015
 

The Fish and Wildlife Service will propose listing 49 plants and animals from the Hawaiian islands as endangered, and the Eastern Massasauga rattlesnake, known from 10 states, and the elfin-woods warbler, a bird species in Puerto Rico, as threatened. (links go to more info.)

The proposals are in three separate notices to be published Wednesday, Sept. 30. A table with the Hawaiian species is below. More on the rattlesnake is at http://www.fws.gov/midwest/Endangered/. FWS did not propose critical habitat for the rattlesnake.

Michigan DNR page on rattlesnake

Click on the pic to go to the snake's own web page

"The historical range documented for eastern massasauga rattlesnakes included western New York, western Pennsylvania, the lower peninsula and on Bois Blanc Island in Michigan, the northern two-thirds of Ohio and Indiana, the northern three-quarters of Illinois, the southern half of Wisconsin, extreme southeast Minnesota, east-central Missouri, the eastern third of Iowa, and far southwestern Ontario, Canada," FWS said in the proposed rule.

FWS said the current range "still reflects this distribution," but it is more restricted than in 1999, when the eastern massasauga rattlesnake was first identified as a candidate species, "because populations in central and western Missouri have since been reclassified as western massasauga rattlesnakes."

The Hawaiian species include 39 plants and 10 animals. Of the second group, seven are bees.

Sep 292015
 

The D.C. Circuit Court Appeals has upheld the federal government's approval of Enbridge Pipelines' Flanagan South pipeline, concluding that NEPA review of the pipeline's entire 593-mile length was not required (Sierra Club v. U.S. Army Corps of Engineers, 14-5205).

The 593-mile pipeline, which has been built, carries crude oil from Illinois to Oklahoma. Sierra Club contended that collectively, the environmental reviews required by various federal agencies should have triggered an analysis of the entire pipeline under the National Environmental Policy Act.

However, the court, while saying that "the agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions," concluded that they "were not obligated also to analyze the impact of
the construction and operation of the entire pipeline." It continued:

"We also reject Sierra Club’s Clean Water Act challenge to the Corps’s verifications of Flanagan South’s water crossings under Nationwide Permit 12 because the Corps was authorized to  conduct its review on a regional rather than nationwide basis, and the Corps’s District Managers adequately supported their verification decisions. Finally, we hold that the district court did not abuse its discretion in denying Sierra Club’s motion to supplement and amend its complaint, because the proposed new allegations would not have affected the dispositive legal analysis."

The circuit judges on the decision were Janice Rogers Brown, Nina Pillard and Robert Wilkins. Pillard wrote the opinion for the court; Brown concurred separately, opining that the majority had expended too much "angst" in reaching its decision.

"While the majority ultimately arrives at the same destination, its route is needlessly circuitous, creating the impression that Sierra Club’s challenges fail by a hairsbreadth rather than a hectare," she said.

Background

Sierra Club also claimed that one of the agencies, the United States Army Corps of Engineers, unlawfully authorized dredge and fill activities at the pipeline’s nearly two thousand minor water crossings by verifying that they fell within the authority of a general permit, Nationwide Permit 12, that the Corps had promulgated under the Clean Water Act. Sierra Club argued that the Corps impermissibly conducted its analyses of the water crossings’ cumulative impacts by region, rather than considering the pipeline as a whole, and that its conclusions that the crossings would have only minimal adverse environmental effects were inadequately supported and conclusory.

The Flanagan South oil pipeline pumps crude oil across 593 miles of American heartland from Illinois to Oklahoma. Almost all of the land over which it passes is privately owned. As soon as Enbridge Pipelines (FSP), LLC, (Enbridge) began building the pipeline in 2013, the Sierra Club, a national environmental nonprofit organization, sued the federal government seeking to set aside several federal agencies’ regulatory approvals relating to the pipeline and to enjoin the pipeline’s construction and operation in reliance on any such approvals.

On appeal, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals. Sierra Club also presses its challenge to the Corps’s Clean Water Act verifications of the pipeline’s many water crossings. Sierra Club further contends that the district court reversibly erred by failing to allow the organization to supplement and amend its complaint. Sierra Club’s proposed new complaint added claims that the Corps and the Bureau of Indian Affairs within the U.S. Department of the Interior (the Bureau) had, while the litigation was pending, completed separate NEPA analyses relating to each of the easements the agencies had granted for the pipeline to cross federally controlled land, and that those analyses were insufficient.

 

Sep 282015
 

Timber companies and the Carpenters Industrial Council could not demonstrate that they have standing to pursue claims against BLM for adopting land management plans for six districts in western Oregon.

The cases decided by U.S. District Judge Richard Leon are American Forest Resource Council v. Jewell (14-368), Carpenters Industrial Council v. Jewell (13-361), and Swanson Group Manufacturing v. BLM (14-211).

 

Sage-grouse decision: Not warranted (Links)

 Posted by on September 22, 2015
Sep 222015
 

The Interior Department announced the decision, ahead of a formal announcement and press conference in Colorado at noon ET (10 MT). (click the link to go to a video announcement.) DOI sage-grouse pageDOI release  |  NRCS release

More links (and scroll down for releases from National Audubon Society, Cornell Lab of Ornithology, WildEarth Guardians and Defenders of Wildlife)

National Audubon Society press release

The Greater Sage-Grouse Will Avoid “Endangered” Status Due to Herculean Land Conservation Effort

Following Unprecedented Collaboration, Sagebrush Ecosystem Begins Path to Recovery

COMMERCE CITY, Colo. (September 22, 2015)—Today, the Department of the Interior announced that Endangered Species Act (ESA) protections are not warranted for the Greater Sage-Grouse, an impeccably-camouflaged, robust bird that has danced its way into hearts across the American West even as its numbers have dropped from over 16 million to between 200,000 and 500,000. Currently, conservation plans for the sage-grouse include commitments from federal agencies like the Bureau of Land Management (BLM), the Forest Service, state wildlife agencies and private landowners. Commitments range from the investment of nearly $500 million to protect and restore 4.4 million acres of habitat that sits on over 1,100 private properties to protections on 65 million acres of sage-grouse habitat on BLM land.

“This is a new lease on life for the Greater Sage-Grouse and the entire sagebrush ecosystem,” said National Audubon Society President and CEO David Yarnold (@david_yarnold). “Unprecedented cooperation by private landowners, states, and the federal government has created a framework for conservation at a scale unique in the world. Finding a shared path forward beats scaring all the stakeholders into their corners. Of course, now all of these stakeholders have to fulfill their commitments in order to make today’s decision stick.”

Faced with an endangered listing for the bird, stakeholders came to the table to develop a conservation strategy deemed strong enough by the U.S. Fish and Wildlife Service to stave off ESA protections and keep the bird’s recovery dependent on the current plans.

“The Greater Sage-Grouse indicates the health of the entire sagebrush ecosystem and the Western way of life,” said Brian Rutledge, VP and Central Flyway policy advisor for Audubon. “During this process we have learned to not allow the perfect to be the enemy of the good, and we have arrived at a good plan for both people and wildlife.”

Audubon has worked with key state and federal officials to get to today’s historic announcement. From serving on the Wyoming Sage Grouse Implementation Team, which resulted in the state’s strategy of protecting core habitat becoming a model emulated across the rest of the bird’s range, to partnering with the Natural Resources Conservation Service (NRCS), which helps private landowners implement sage-grouse protections on their property, Audubon has effectively demonstrated a commitment to protect and restore a long-undervalued ecosystem.

“We achieve more when we work together, and today’s decision not to list the Greater Sage-Grouse proves the power in partnerships," NRCS Chief Jason Weller said. “With the support of partners like the Audubon Society, we have been able to help ranchers implement conservation strategies that improve sagebrush ecosystems, reduce risks to sage-grouse and keep working lands for working. We’re grateful to Audubon for their contributions in this successful wildlife conservation effort and look forward to continued partnership to drive conservation on working lands.”

In addition to the decision on the sage-grouse and integral to its conservation, Secretary of the Interior Sally Jewell signed into the federal record of decision, 14 Regional Management Plans put forth by the BLM earlier this year. The plans represent a key part of the federal government’s role in sage-grouse recovery, and include approximately 65 million acres of sage-grouse habitat that sits on federally controlled land.

“With the BLM plans now officially in place, we finally have science-based regulatory assurance from the federal government in protecting 65 million acres of sage-grouse habitat on public lands,” said Rutledge. “Now that all major players have skin in the game, we can move forward to protect a landscape that’s home to not only this iconic bird but also 350 additional species of plants and animals—and people who have lived here for generations too.”

To learn more about this bird, its habitat and Audubon’s work on its conservation, please visit www.audubon.org/sage-grouse.

The National Audubon Society saves birds and their habitats throughout the Americas using science, advocacy, education and on-the-ground conservation. Audubon's state programs, nature centers, chapters and partners have an unparalleled wingspan that reaches millions of people each year to inform, inspire and unite diverse communities in conservation action. Since 1905, Audubon's vision has been a world in which people and wildlife thrive. Audubon is a nonprofit conservation organization. Learn more at www.audubon.org and @audubonsociety.

###

Cornell Lab of Ornithology (9/22/15)

Statement by Dr. John W. Fitzpatrick on the USFWS decision not to list the Greater Sage-Grouse for protection under the Endangered Species Act

Today the U.S. Fish and Wildlife Service announced its decision not to grant Endangered Species Act protection to the Greater Sage-Grouse. The U.S. Department of the Interior also finalized the range-wide strategy (in the form of several Environmental Impact Statements) for sage-grouse habitat on Bureau of Land Management and U.S. Forest Service lands in 10 western states. These decisions come after about a decade of cooperative conservation work and unprecedented coalitions among state and federal agencies, conservationists, energy companies, and private ranchers. States have invested more than $200 million in sage-grouse, and the federal government has invested $300 million—with another $200 million on the way.

Dr. John W. Fitzpatrick, Louis Agassiz Fuertes Director of the Cornell Lab of Ornithology, says:

“This decision by USFWS is an important milestone in the history of the Endangered Species Act. It shows how the Act can be effective, not only when it calls for emergency regulations to save a species, but also as an incentive for governments, conservation groups, and private landowners to collaborate towards conserving a species before its populations become critically endangered. To all of those in the West who are working together, amidst so much controversy, to preempt a listing through proactive conservation, we say, ‘Great progress so far–please stay the course.’

“Lawsuits may fly from both sides of the debate over sage-grouse conservation. But today we welcome this huge opportunity for science-based conservation groups to partner with federal and state governments as well as the ranching community to measure the effectiveness of management plans across all 11 sage-grouse states. We need to highlight the successes, and call out the shortcomings, always paying strict attention to demonstrable biological facts. For this reason, dedicated and intensive monitoring will be absolutely imperative in following through on the promise of today’s USFWS decisions.

“The Cornell Lab of Ornithology stands ready to assist sage-grouse conservation efforts with all of our information science resources. Besides the obvious role of dedicated professional biologists in population monitoring, the coming decade provides a huge opportunity for citizen-scientists to contribute. For example, birders can seek out sage-grouse and other sagebrush bird species in all seasons and enter their sightings into eBird.

“The challenge now is to document how sage-grouse populations respond to management plans in both breeding and wintering areas, to make course corrections on habitat protection where necessary, and to structure dedicated resources for the long-term, as this is sure to be a decades-long effort. Today’s ESA decision isn’t the end, it’s the beginning of a phase requiring less arguing and even more doing. No doubt these management plans aren’t perfect, but they do provide a solid base for everyone to move forward boldly on behalf of sagebrush and sage-grouse conservation.

“In addition to monitoring, dire need exists for funding research into how to restore degraded habitats in the West, not just for the benefit of Greater Sage-Grouse but also for the other 350 species that rely on the Sagebrush Steppe. Simply restricting development in key areas will help, but we also need to revitalize native plant communities so we can restore the carrying capacity of the lands we’ve protected for sage-grouse.

“Finally, I hope that in all our discussions about sage-grouse in the coming months, we respect today’s decision as a victory for private landowners. Courageous ranchers throughout the range of the species have welcomed Greater Sage-Grouse onto their properties, embracing the idea that this uniquely spectacular bird can coexist with economically viable private land use. Today’s decision underscores the continuing opportunity for landowners to take advantage of incentives and benefits for sage-grouse conservation on private land. I hope we are entering a new era in which collaborative conservation for a potentially endangered species is considered to be a financial opportunity for private landowners.”

###

WildEarth Guardians

For Immediate Release September 22, 2015

Contact:

Erik Molvar, Wildlife Biologist, WildEarth Guardians, (307) 399-7910

Feds Fail Sage Grouse

Endangered Species Act Protections Denied; Land Use Plans a Huge Lost Opportunity

WASHINGTON, D.C. – After years of delay, today the federal government denied much needed Endangered Species Act protections to the imperiled greater sage grouse. The decision was coupled with the release of final land management plans aimed at protecting imperiled grouse populations across 10 western states. Instead of ensuring a future for the greater sage grouse, however, the final plans are replete with crippling flaws and loopholes rendering them inadequate to address threats from industrial development, livestock grazing, and invasive weeds.

“The sage grouse faces huge problems from industrial development and livestock grazing across the West, and now the Interior Department seems to be squandering a major opportunity to put science before politics and solve these problems,” Like other politicians before her, today Secretary Jewell declared victory before the battle is actually won,” said Erik Molvar wildlife biologist with WildEarth Guardians. “The government’s plans fall far short of ensuring this iconic, imperiled bird is protected from the serious threats posed by fossil fuel extraction, grazing and development.”

In 2011, the Bureau of Land Management assembled a team of sage grouse experts to draft a science-based blueprint for protection measures necessary to protect and recover sage grouse populations. In 2013 the U.S. Fish and Wildlife Service assembled state officials to determine what areas were “essential” for sage grouse persistence designate them as ‘Priority Areas for Conservation.’ In the end, the new federal plan amendments ignore both sets of recommendations and adopt conservation measures far weaker over a geography of designated Priority Habitats far smaller than those proposed by expert scientists.

“The sage grouse planning effort began with great ideas and sound science, but what came out the other end of the sausage grinder is a weak collection of compromises that will not and cannot conserve the species,” said Molvar. “Sage grouse are facing real and imminent threats from fossil fuel production and inappropriate livestock grazing, and the birds need mandatory, science-based solutions if we have any hope to reverse more than 100 years of declines.”

The federal plans suffer from four crippling flaws:

  • Some 16 million acres of Priority Areas for Conservation were stripped from the final Priority Habitats designated in the new federal plan amendments. As detailed in a GIS analysis by WildEarth Guardians, Nevada was left with tiny fragments of Priority Habitat in its federal plan, about half of what the state itself originally proposed for protection.
  • Federal experts reviewed the science and recommended closing Priority Habitats to future leasing for oil and gas drilling, but instead these most sensitive sage grouse habitats were re-opened to leasing after years of a moratorium on leasing.
  • Priority Habitat protections from oil and gas drilling are much weaker in Wyoming than any other state, despite the fact that Wyoming faces the greatest threats from drilling and more than 40% of the worldwide sage grouse habitat is in this state.
  • Virtually all sage grouse protections in the new plans come with the option for exceptions and waivers, loopholes that have been abused in the past to the detriment of sage grouse.

Any one of these problems is serious enough to undermine efforts to maintain and recover sage grouse populations, and makes listing under the Endangered Species Act more necessary.

Over half of the remaining sage grouse populations are on federal lands, making the decision to withhold adequate protections on BLM and Forest Service administered public lands a key failure preventing a finding that ‘adequate regulatory mechanisms’ exist to protect the birds and avoid an ESA listing. Sage grouse populations are down 27% from 2010 when the U.S. Fish and Wildlife Service originally determined the sage grouse warranted ESA protections. At that time the Service found those protections were precluded by other priorities. Industrial projects and oil and gas leasing, which were largely on hold over the past six years while federal sage grouse plans were being developed, will now move forward. Drilling will now resume in grouse habitat under the new, weak plans.

“In the final sage grouse plans, the Obama administration threw science out the window in favor of political expediency,” said Molvar.  “Strong, science-based plans could have neutralized the serious threats that sage grouse are facing, but instead we have weak plans that cannot justify the decision to deny Endangered Species Act protections.”

 

-30-
Defenders of Wildlife

FOR IMMEDIATE RELEASE

September 22, 2015

Contact: Courtney Sexton; csexton@defenders.org, 202-772-0253

Landmark Decisions Fall Short of Conserving Sage-Grouse
Despite improvements, final plans inconsistent with government’s own “best available science”
as listing is taken off the table

WASHINGTON, DC — Today Secretary of the Interior Sally Jewell and Department of Agriculture Secretary Tom Vilsack announced sweeping decisions with far-reaching consequences for the imperiled greater sage-grouse, the Sagebrush Sea and hundreds of fish and wildlife that depend on this vital landscape.

The Obama administration announced the conclusion of a four-year federal land use planning process designed to implement a National Greater Sage-Grouse Planning Strategy, an unprecedented effort to improve the management of more than 60 million acres of the Sagebrush Sea. Today’s announcement involved the completion of final decision documents for 14 Bureau of Land Management (BLM) and Forest Service conservation plans for the sage-grouse, a species that occurs on millions of acres of public lands throughout the American West. The planning effort recognized the importance of conserving large expanses of sagebrush grasslands for sage-grouse and other sagebrush-dependent species, designating tens of millions of acres as priority habitat on federal lands, including approximately 13 million acres of Sagebrush Focal Areas. Though the final plans will result in the general improvement in management of the covered lands, they failed to incorporate key prescriptions identified by the government’s own scientists as necessary for the long-term conservation and recovery of the grouse.

The U.S. Fish and Wildlife Service (FWS) determined that the greater sage-grouse does not warrant protection under the Endangered Species Act (ESA), a decision based largely on the final federal land use plans. Current advanced scientific understanding of the species, combined with the inadequacy of the plans to protect and restore the sage-grouse, undermines the Service’s decision not to list the bird under the ESA.

The following is a statement from Jamie Rappaport Clark, President and CEO of Defenders of Wildlife:

“We commend the administration’s unprecedented and epic land use planning process covering millions of acres of public lands throughout the American West, but the final plans fall short of what is necessary to eliminate known threats to the greater sage-grouse. While the final federal sage-grouse plans advance wildlife management on millions of acres of public lands, they failed to adopt key conservation measures identified by the government’s own scientists and sage-grouse experts as critical to conserving the bird, such as protecting winter habitat or confronting the growing threat of climate change to the species’ habitat.

“Listing decisions under the ESA must be based upon the best available science and specific listing criteria, including the adequacy of regulatory mechanisms to address ongoing threats and support long-term conservation and recovery of imperiled species. In this case, the shortcomings of the federal sage-grouse conservation plans and a lack of regulatory certainty are contrary to and undermine the Fish and Wildlife Service’s determination that the species no longer warrants protection under the ESA.”

Westerners love their sage-grouse and, like the majority of Americans, support land management that does not sacrifice our rich fish and wildlife heritage for short-term profits from unsustainable land use and development. They also support decisive action to save the sage-grouse—including listing the bird under the ESA—to prevent the species from becoming extinct. The fate of the sage-grouse, and hundreds of other species, is linked to the future of the Sagebrush Sea. More still needs to be done to ensure the bird’s long-term survival on this fragile and vital landscape.”

# # #

Background:

The iconic greater sage-grouse once ranged across 297 million acres in North America and numbered as many as 16 million birds. Today, greater sage-grouse range has been reduced by nearly half and populations have experienced long-term declines. Sage-grouse require large expanses of healthy sagebrush steppe, an increasingly rare habitat in the West. Millions of acres of the Sagebrush Sea have been lost to agriculture and development over the past 200 years. What remains is fragmented and degraded by poorly managed oil and gas drilling, livestock grazing, min­ing, unnatural fire, invasive weeds, off-road vehicles, roads, fences, pipe­lines and utility corridors.

The U.S. Fish and Wildlife Service determined greater sage-grouse warranted protection under the Endangered Species Act (ESA) in 2010, and committed to consider the bird for listing by this month. This date certain prompted federal agencies, states and counties to initiate a multitude of planning processes to implement new conservation measures to conserve sage-grouse on millions of acres in the west with the hope of averting the need to list the species. The shortcomings of the final plans coupled with recent demographic information and the latest research published by the U.S. Geological Survey on the plight of sage-grouse, are a blunt reminder that strong, science-based conservation measures—and  listing under the Endangered Species Act are necessary at this time to protect the species.

###

Sep 212015
 

Interior Secretary Sally Jewell, joined by four Western governors, the directors of the Fish and Wildlife Service, Bureau of Land Management and U.S. Geological Survey, and the chiefs of the Forest Service and Natural Resources Conservation Service, "will make a major announcement related to the historic conservation effort for the greater sage-grouse" in Colorado tomorrow.

News organizations have widely reported that Jewell and the assembled agency heads (along with a rancher from Nevada and an executive with Audubon Rockies) will be announcing the long-awaited decision on whether listing of the greater sage-grouse is "warranted" under the Endangered Species Act.

Given the hoopla surrounding the event, the attendance by the governors of Wyoming, Nevada, Colorado and Montana, and the wording of the Interior Department's media advisory, it appears unlikely that the outcome can be anything other than "not warranted."

Of course, that is speculation, but it's informed speculation. Hardly a week has gone by in the last few months without a news release about a new commitment of money and or/land to conserve the iconic sagebrush species, along with a mention of the "unprecedented" landscape-scale effort undertaken by the feds, states and ranchers.

The advisory followed the same script.

"[T]he long-term decline of the greater sage-grouse and its sagebrush habitat has sparked an unprecedented collaborative, science-based conservation effort across 11 western states." It hardly seems possible that the dignitaries are showingup to hear about a proposed listing of the bird.

Indeed, last week Jewell told media attending a briefing sponsored by the Christian Science Monitor that she was "optimistic that a not warranted [decision] is possible," according to an article in the Washington Examiner with the wishful headline, "Interior chief sees no endangered species listing for sage grouse."

""What has happened in this collaborative work is really the way I think the Endangered Species Act should work," she said.

One example of that collaboration is the Colorado Habitat Exchange, announced by Gov. John Hickenlooper last week.

"The Colorado Habitat Exchange works to engage ranchers in voluntary conservation efforts by offering financial incentives to create, maintain and improve habitat on their property," the governor's office said in a news release. "Landowners earn conservation credits for these activities, which they can sell to industry to compensate for development, such as roads, oil and gas facilities and other infrastructure that impact species and habitat."

The state has asked FWS and BLM to "recognize" the exchange. “No one wants to see this bird on the Endangered Species List, and this program is our best chance of keeping the bird off the list, now and in the future,” said Terry Fankhauser, executive vice president of the Colorado Cattlemen’s Association.

But Erik Molvar, Sagebrush Sea Campaign Director for WildEarth Guardians, warned that although voluntary conservation is "laudable," conservation banking cannot be used "as an alternative to having real sage grouse protections."

So far, banking's track record is not enviable, he said, pointing to efforts for the lesser prairie-chicken as an example.

Molvar also said he doesn't know what the final decision will be. The government, he said is keeping the announcement "close to the vest."

"There is a growing sense, though no certainty, that the bird will not be listed — at least for now," a story in today's Los Angeles Times said.

More coverage:

Sep 182015
 

An array of environmental and social justice groups called on the Fish and Wildlife Service and National Marine Fisheries Service to withdraw proposed regulations that would add steps to the Endangered Species Act's listing petition process.

In a letter to FWS Director Dan Ashe and NOAA Administrator Kathryn Sullivan, 175 groups said the proposed changes "would impose unprecedented restrictions on the right of citizens to petition the federal government to protect endangered species and exceed the services’ statutory authority."

But "more than that," they said that if made final, "the revisions would set a dangerous, far-reaching precedent that would undermine the rights of citizens to petition the government to vindicate their rights under an array of environmental, social justice, and other laws." The letter continued:

"[T]he fundamental right to petition federal agencies to protect the environment and human communities is particularly important in our modern society because of the federal government’s powers to create uniform national standards and prevent the undue influence of vested interests on state governments. Recognizing this fact, Congress has expanded and strengthened the right to petition beyond what is provided for in the [Administrative Procedure Act] under many laws including the Clean Air Act, the Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA), as well as the ESA."

The most significant change proposed would require petitioners to submit their petitions "to all states where the declining species is found," at least 30 days before sending it to FWS. "The petitioner must then submit any and all information received from a state as an appendix to his or her petition. The petitioner is also required to attach all information received, even if a state is hostile to the petition’s objective — e.g., because it believes that listing a species under the ESA would represent a loss of regulatory control over wildlife within its borders —and even if that information is false or deliberately undermines the petition."

In addition, "The petitioner would also be required to submit (and certify) that s/he has submitted 'all relevant information' about the species that s/he seeks to protect under the ESA, a requirement that would be virtually impossible to meet, and could cost a petitioner thousands of dollars to comply with. If the petitioner fails to comply with these new mandates and incur these financial burdens, the petition would be summarily rejected."

"Nothing in the ESA supports the imposition of such onerous mandates on a would-be petitioner," the groups said in the letter. "Nor does the language of the APA or any other environmental law suggest that a petitioner must submit his or her petition to any other entity prior to filing it with a federal agency. Herein lies the danger: Because the proposal is divorced from all statutory text in both the ESA and APA, it would be a precedent without limitation."

Among the signatories: Center for Biological Diversity, Humane Society of the United States, Greenpeace U.S.A. and Friends of the Earth. But there were many smaller groups, as well -- Juniata Valley Audubon Society, Palm Beach County Environmental Coalition, Reef Relief, Tualatin Riverkeepers and Seven Generations Ahead, to name a few.

The letter follows:

 

Sep 172015
 

The service also found that petitions for two species -- Stephens' kangaroo rat and the Cahaba pebblesnail -- did not merit further review. Stephens' kangaroo rat is listed as endangered, so the petition was to delist. The full Federal Register notice is here

More links