Steve Davies

is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He moved back to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication. Click LinkedIn below for more detail.

Feb 072014
 

The Fish and Wildlife Service plans to reopen the comment period on its proposal to delist the gray wolf throughout the lower 48 states, following release today of a review that says FWS didn’t use the best scientific information available.

The “key conclusions” from the report by the National Center for Ecological Analysis and Synthesis:

  • There was unanimity among the panelists that, although there was much good scientific work in the Proposed Rule, the rule is heavily dependent upon the analysis of Chambers et al. 
  • Some reviewers also noted a lack of appropriate use of the literature on species level taxonomy 
  • There was unanimity among the panelists that Chambers et al was not universally accepted and
  • that the issue was ‘not settled’. The issues raised by Chambers et al could be definitively answered relatively soon.
  • There was unanimity among the panel that the rule does not currently represent the ‘best available science’
  • Neither the panel as a whole, not any of its members in their individual reviews, made any management or policy recommendations. 

The comment period will be reopened until midnight, March 27. (FWS press release)

Jan 162014
 

The two cranes that were shot (Photo by Ted Thousand, International Crane Foundation)

A reward of $7,200 has been offered for information on the November shooting of a whooping crane in Kentucky.

The crane was rescued but had to be euthanized. Its mate was found dead five miles away Dec. 13.

Investigators believe the incidents are related.

According to the Fish and Wildlife Service news release:

“On November 25, 2013, the International Crane Foundation received a report from a Hopkins County [Kentucky] resident of a whooping crane that appeared to be injured. Initially, the wounded crane was still able to fly, but was extremely weakened, and was rescued on November 27, 2013. Among other injuries, the crane’s upper leg was shattered. Attempts to save the bird were unsuccessful, and the crane identified as 5-09 had to be euthanized.”

The whooping crane is the most endangered crane species in the world. Fewer than 500 of them exist in the United States.

“ICF is deeply troubled by the deaths of these whooping cranes. In this imperiled species, every crane counts toward recovery,” ICF President Dr. Richard Beilfuss said. “ICF’s education and outreach… efforts along the flyway are focused on the responsible stewardship of whooping cranes, and our commitment to the future of these magnificent birds remains as strong as ever.”

FWS press release (1/16/14) and ICF press release

Louisville Courier-Journal blog entry by James Bruggers

Red wolf death investigated

FWS and the North Carolina Wildlife Resources Commission are asking for help in their investigation of a suspected shooting of a protected red wolf.

The radio-collared wolf  was found with an apparent gunshot wound on Tuesday, Jan. 7, 2014, southwest of Columbia, in Tyrrell County, North Carolina.

“This is the first red wolf death of 2014,” FWS said in a press release. “A total of 14 wild red wolves were known to have died in 2013 including three struck and killed by vehicles, one death as a result of non-management related actions, and nine confirmed or suspected gunshot deaths.  The cause of the remaining wolf’s death is currently undetermined.”

FWS red wolf recovery program

Sobeck named new AA at NOAA

 Posted by on January 16, 2014
Jan 162014
 

Eileen Sobeck, who has already served in high-level positions at the Justice and Interior departments, is returning to the National Oceanic and Atmospheric Administration.

Sobeck will become Assistant Administrator, overseeing operations of the National Marine Fisheries Service, beginning Jan. 27.

From the press release:

Early in her career, Sobeck worked in the NOAA Office of General Counsel from 1979-1984. She then served at the U.S. Department of Justice, Environment and Natural Resources Division from 1984-2009.

Sobeck currently serves as acting assistant secretary of the Department of Interior’s Office of Insular Affairs. She has served as deputy assistant secretary for Fish and Wildlife and Parks at the Department of the Interior since 2009.

Sobeck has the distinction of having a sea slug named after her: Hallaxa hileenae is a species of Pacific nudibranch.

Sobeck

and her eponymous sea slug

 

Jan 152014
 

Large-scale mining in Alaska’s Bristol Bay “poses risks to salmon and the tribal communities that have depended on them for thousands of years,” EPA Regional Administrator Dennis McLerran said in a news release today, summarizing results of an ecological assessment on the possible impacts of mining in the watershed.

EPA “launched the study in response to petitions from federally recognized tribes and others who wrote to EPA with concerns about how future large-scale mining could impact Bristol Bay fisheries,” the agency said.

“The watershed supports the largest sockeye salmon fishery in the world, with approximately 46 percent of the average global abundance of wild sockeye salmon,” the report says.

Audio of EPA teleconference and the transcript

Google result for “Bristol Bay Pebble Mine”

Jan 142014
 

A $1 trillion House-Senate spending bill made public yesterday includes a provision that would prohibit the Army Corps of Engineers from using any of its funding to change the definition of “fill material” under the Clean Water Act.

Although a rewrite of the 2002 rule does not appear to be in the works, the provision was nonetheless sought by the mining industry, which likes the fact that mining waste can be dealt with under CWA Section 404. Hal Rogers (R-Ky.), chairman of the House Appropriations Committee, said a rewrite of the regulation could harm U.S. industries.

Here’s a press release from Earthjustice, including a statement from legislative director Chris Espinosa.

“More than 22 percent of all the rivers and streams in Southern West Virginia are impaired by mountaintop removal mining pollution and this policy rider will lock in the same destructive practice of using waters as waste dumps,” Espinosa said.

The bill is expected to pass both chambers soon after they approve yet another continuing resolution to fund the government. The latest continuing resolution expires tomorrow — Jan. 15.

Links

Louisville Courier-Journal blog
CRS report (“Controversies over Redefining ‘Fill Material’ Under the Clean Water Act,” Aug. 21, 2013)

Summaries of omnibus bill sections, from House Appropriations web page

Nixon’s signing statement for the ESA

 Posted by on December 30, 2013
Dec 302013
 

Two days late, but I hope not more than a few cents short, I herewith present the presidential signing statement for the Endangered Species Act of 1973.

Photo linked from Washington Post

It seems remarkable that Nixon — the Nixon of CREEP, Watergate, Vietnam and Cambodia — is the same guy who signed the ESA and the Clean Air Act. How many Republican lawmakers today would call threatened wildlife “irreplaceable”? Then again, some congressmen who voted in favor of the ESA 40 years ago claimed in later years to have been not fully cognizant of the law’s far-reaching impact. They said they didn’t realize the ESA was designed to protect all species — n0t just the so-called “charismatic megafauna,” your grizzly bears, wolves, bald eagles and so on. This has led to many congressional hearings convened expressly to pillory species like the Delhi Sands flower-loving fly. The archetype for that line of reasoning (generally, if it’s small and/or a bug, it don’t matter) is the snail darter, subject of the seminal TVA v. Hill Supreme Court decision. Apropos of that, Prof. Zygmunt Plater of Boston College School of Law has authored a book about the case, in which he represented the plaintiffs.

PRESIDENTIAL STATEMENT ON SIGNING S. 1983 INTO LAW

ENDANGERED SPECIES ACT OF 1973

STATEMENT BY THE PRESIDENT UPON SIGNING THE BILL INTO LAW;
DECEMBER 28, 1973

I have today signed S. 1983, the Endangered Species Act of 1973.  At a time when Americans are more concerned than ever with conserving our natural resources, this legislation provides the Federal Government with needed authority to protect an irreplaceable part of our national heritage–threatened wildlife.

This important measure grants the Government both the authority to make early identification of endangered species and the means to act quickly and thoroughly to save them from extinction. It also puts into effect the Convention on International Trade in Endangered Species of Wild Fauna and Flora signed in Washington on March 3, 1973.

Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. I congratulate the 93d Congress for taking this important step toward protecting a heritage which we hold in trust to countless future generations of our fellow citizens. Their lives will be richer, and America will be more beautiful in the years ahead, thanks to the measure that I have the pleasure of signing into law today.

NOTE: The Statement was released at San Clemente, Calif.

As enacted, the bill (S. 1983) is Public Law 93-205, approved December 28, 1973.

 

Dec 102013
 

The federal government owes the state of Arkansas about $5.8 million, the Federal Circuit Court of Appeals ruled Dec. 3, affirming a lower court determination after a remand from the Supreme Court (Arkansas Game & Fish Commission v. U.S., 09-5121).

The high court had held that the Army Corps of Engineers’ flooding of a wildlife management area in Arkansas from 1993 through 2000 was a temporary taking and required compensation (Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 2012).

The game and fish commission had sought an award covering tree damage on 6,900 acres, but the federal circuit went along with the Claims Court, which limited the area to the 349 acres where the damage was classified as “severe.” (Damage on the remaining 6,641 acres was “heavy” or “moderate.”)

More coverage: Law360 (Lexis/Nexis)

Excerpts from Fed. Circuit opinion:

The Supreme Court reversed this court, holding that government-induced flooding can constitute a taking even if it is temporary in duration. Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012). Unlike permanent physical takings, the Court explained, temporary invasions “are subject to a more complex balancing process to determine whether they are a taking.” Id. at 521, quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982).

Perhaps the most telling evidence in support of the trial court’s finding of causation came from the Corps of Engineers itself. After conducting a site visit in early 2001 and determining that the Management Area would flood when the water level at the Corning gauge reached six feet, the Corps admitted that the deviations had “clear potential for damage to bottomland hardwoods” in the Management Area. In response to the Commission’s complaints that the flooding was destroying the hardwood forest, a Corps representative stated that the Commission “has objected in the past because they contend that we increase the flood duration of hardwoods and kill more trees this way, particularly during the growing season. They now have a study that shows this and we acknowledge the validity of their concerns.” The Corps’ district engineer explained that the deviations were ended because they “would unacceptably extend the duration of water inundation on bottomland hardwoods.” And at public meetings during that period, the Corps admitted that, based on its site visit in March 2001, the deviations were “negatively impacting [the Management Area] during [the] growing season.” In sum, the evidence supports the trial court’s findings that the deviations caused a substantial increase in the periods of growing-season flooding in the Management Area and that the flooding caused widespread damage to the trees there. Those findings in turn support the trial court’s legal conclusion that the deviations caused an invasion, in the form of a temporary flowage easement, of the property rights enjoyed by the Commission and its predecessors since before the construction of the Clearwater Dam and until 1993.2

“While it is true that each of the Corps-authorized deviations was designated as temporary, the deviations were renewed each year between 1993 and 2000. The deviations were adopted in response to requests from agricultural interests, which sought to have the pattern of water releases from Clearwater Lake modified to increase the length of the harvest season. The changes made in the release patterns between 1993 and 2000 had the intended effect of benefiting farmers in the area, but as the trial court found, the change also resulted in a substantial increase in the number of days that the Management Area was flooded during each growing season during those years.

“That period of flooding imposed a severe burden on the Commission’s property. According to the trial court’s findings, ‘the government’s superinduced flows so profoundly disrupted certain regions of the Management Area that the Commission could no longer use those regions for their intended purposes, i.e., providing habitat for wildlife and timber for harvest.’ 87 Fed. Cl. at 620.

“The government’s claim that each of the deviations that the Corps of Engineers implemented during the 1990s was insufficient by itself to effect a taking ignores that while the prescribed water levels varied slightly from year to year, the deviations were directed to a single purpose-to accommodate agricultural interests-and had a consistent overall impact on the Management Area. Thus, the government-authorized flooding of the Management Area is properly viewed as having lasted for seven years, and the question whether the flooding constituted a compensable taking must be assessed in light of an invasion of that duration.”

From decision by Court of Federal Claims Judge Charles F. Lettow (7/1/09):

“[T]he Commission has not established to a reasonable certainty the need for regeneration damages for the remaining 6,641 acres. Undoubtedly parts of that acreage contain clusters of invasive wetland species, some of which may be sizeable. Nonetheless, there is no basis in the record to differentiate the areas that would require regenerative work from others which retain some oak stands of significance and which may well regenerate themselves, albeit over the course of many years. Thus, the Commission can only recover regeneration costs for the 349 acres that were classified as severe by Mr. Watts and which the court in a reasonable way confirmed by the site visit.”

Link

2006 decision from Lettow

P.I. request to halt pipeline turned down

A federal judge has denied a preliminary injunction request to halt construction of the Flanagan South (FS) Pipeline, expected to transport oil from Illinois to Oklahoma (Sierra Club v. U.S. Army Corps of Engineers, 13-1239 KBJ, D.D.C.).

The lawsuit says the Corps and other federal agencies did not comply with the Clean Water Act, National Environmental Policy Act and Administrative Procedure Act in approving the 589-mile project. But U.S. District Judge Ketanji Brown Jackson said the plaintiffs proceeded on “the mistaken assumption that the [Corps'] verifications are the equivalent of a permit insofar as they effectively authorized the FS Pipeline to proceed.”

Said Jackson: “[T]he law quite clearly distinguishes between ‘verifications’ and ‘permits’ in the CWA context, compare 33 C. F. R. Part 325 (establishing procedures for individual permits), with 33 C. F. R. Part 330 (detailing procedures for verification under general permitting system), and the entire point of the general permitting system is to avoid the burden of having to conduct an environmental review under NEPA when a verification–as distinguished from an individual discharge permit–is sought. As previously and extensively explained, under the general permitting system, the Corps conducts an extensive environmental review and provides the public with notice and an opportunity to comment regarding categories of construction activity that the Corps seeks to designate as having minimal impact on waterways within specified geographical regions. See 33 C. F. R. § 330.1(b). The purpose of the statute that authorizes general permits such as the nationwide permit at issue here is to allow the Corps to designate certain construction projects as eligible for CWA discharge permits ‘with little, if any, delay or paperwork’ because they fit within these pre-cleared categories of activities.

“Consequently, it makes little sense that, notwithstanding the FS Pipeline project’s eligibility for verification under NWP 12, the Corps nevertheless had to conduct a full environmental review under NEPA, as plaintiffs maintain. In other words, the requisite comprehensive environmental review is done upfront under the general permitting system precisely to avoid a NEPA environmental review regarding certain projects that fit into categories of activity that have been predetermined to have minimal environmental impact. Therefore, once the Corps’s district engineers verified that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional environmental review was required.”

The judge had this to say about the possibility of an oil spill:

“Finally, a few words about plaintiffs’ suggestion that operation of the FS Pipeline risks a devastating oil spill that would be damaging to nearby communities, and that that harm is sufficient to warrant an injunction. The court acknowledges and accepts that some of the people who live in areas near the pipeline project are sincerely worried about the harm that an oil spill might cause. As genuine as these concerns may be, plaintiffs have not shown that a damaging oil spill is likely to occur, and it is bedrock law that injunctions ‘will not issue to prevent injuries neither extant nor presently threatened, but only merely feared.’ Comm. in Solidarity With People of El Salvador (CISPES) v. Sessions, 929 F. 2d 742, 745-46 (D. C. Cir. 1991) (internal quotation marks and citations omitted). In other words, the harms that an oil spill might potentially someday cause–however fearsome–are not certain, and therefore are not sufficient to satisfy the ‘irreparable harm’ standard.

Background from the opinion

“At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land that is entirely privately owned. According to Enbridge, the company has identified 2,368 tracts owned by 1,720 separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the CWA; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps’s jurisdiction. To construct and operate the portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or water crossing.”

No, you take it: Ex-Im NEPA case to be heard in D.C.

The Northern District of California (District Judge William Alsup, specifically) has transferred a NEPA action against the Export-Import Bank to the U.S. District Court in Washington, D.C. The plaintiffs allege that the Ex-Im Bank should have prepared an EIS or environmental analysis before approving a $90 million commercial loan guarantee for Xcoal Energy & Resources LLC, “a coal mining, transport and export company” (Chesapeake Climate Action Network v. Export-Import Bank of the United States, 13-03532 WHA, N.D. Cal.).

In 2010, Xcoal, headquartered in Latrobe, Pa., exported about 11 million tons of metallurgical coal through Baltimore and Hampton Roads, “making it the largest coal exporter in the United States that year,” Alsup wrote in his Nov. 15 order.

Plaintiffs, including the Chesapeake Climate Action Network and Friends of the Earth, “assert[] that as a result of the loan guarantee, the Export-Import Bank ‘enables Xcoal to broker an estimated $1 billion in sales of coal for export from mines in Appalachia; transport that coal by rail to port facilities in [Maryland and Virginia]; . . . store . . . that coal in port; and then transport that coal by ship to clients in China, Japan, South Korea and elsewhere.” Each of these activities allegedly causes “significant adverse effects on human health and the environment.” In particular, the complaint alleges that coal dust and diesel exhaust emitted by the mining and transportation of coal contributes to cardiopulmonary problems in mining communities, along rail lines, and around export terminals. Coal mining also allegedly contaminates its surrounding environment, harms local wildlife populations, and produces large volumes of contaminated wastewater.”

Alsup said that the convenience of the parties, though not a significant factor in his analysis, nonetheless favored transfer, as most of the parties’ counsel are located in  and around Washington, D.C.  In addition, “[w]ith regard to local interest, the District of Columbia has a stronger local interest in this action than [the Northern District of California] because the administrative process occurred in the District of Columbia and the federal defendants reside there.”

Links

Xcoal news
August, 2012
Top Off Operation (Canso, Nova Scotia, Canada)  Download Video
June, 2011
“Xcoal Energy & Resources sees metallurgical coal shipment growth this year” – Platt’s Coal Trader – June 29, 2011… Read More
February, 2011
Xcoal’s “top off” operation was recently recognized by World Coal magazine in its Annual Review of major coal projects. World Review 2011 - World Coal compiles its annual review of some of the major coal-related projects, in various stages of completion, across the globe.
August, 2010
The “top-off” operation was also showcased in the August, 2010 edition of CSL World magazine. “The concept was reinvigorated due to our increased business in Asia,” explained Thrasher… Read More

 

Oct 012013
 

The night before the Fish and Wildlife Service had to shut down because of governmental intransigence, a crowd of about 200 gathered in the Sidney Yates Auditorium in Washington, D.C., to offer public comment on the service’s proposal to delist the gray wolf throughout its range in the U.S.

The hearing’s other subject was a proposal to define the Mexican wolf as a valid subspecies and list it as endangered, but that topic did not get much attention. Instead, the vast majority of speakers criticized the delisting  proposal as scientifically unsound — an example of “political science,” not hard science, as at least two speakers put it. (The Mexican wolf proposal and gray wolf delisting proposal are included in the same Federal Register document, linked to above.)

In some cases, individuals paid their own way to Washington, D.C., and took a day off from work in order to offer two minutes of emotional testimony against the FWS plan.

2013-09-30 20.27.59

Mike Jimenez, Wyoming Gray Wolf Project Leader

Safari Club International may have been the only organization backing the FWS, a somewhat unusual position for the service to be in. But if FWS officials Gary Frazer and Mike Jimenez felt uncomfortable, they didn’t show it, as the large number of speakers stretched the hearing well past its scheduled finish of 8:30 p.m.

It kicked off at 6 p.m. with a statement by FWS Director Dan Ashe, who said, “No animal engenders a more polarizing emotion among Americans than the wolf.” Nevertheless, he said “regardless of our position … the recovery of this iconic species stands as one of the greatest conservation success stories in history,” as well as “a poster child for the power and protections the Endangered Species Act affords our most endangered species.”

The crowd became restless as Ashe recounted standing with Wyoming’s governor to announce that state would be a “responsible steward” of wolves following delisting.

“And you believed him, Mr. Ashe?” came a voice from the crowd.

“I do believe him,” Ashe replied, and continued over persistent murmurs. He asked those in attendance to be involved not just in the wolf debate, but in trying to keep the service’s doors open (a fate that could not be avoided).

“I’ve spent the better part of a day trying to figure out how to shut down an organization of 9,500 people,” he said, adding that 7,000 employees of the Fish and Wildlife Service were facing the prospect of furlough.

He did get a hand at the end, if not an ovation, leaving Frazer, the assistant director for endangered species, and Jimenez, the point man for the proposal, at a table to listen to the comments.

More video and audio recordings will be posted today (Oct. 1).

More

http://www.gpo.gov/fdsys/pkg/FR-2000-07-13/pdf/00-17621.pdf

Extension of comment period until Oct. 28

Mexican wolf (June 13, 2013)

Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013
 

Judge in D.C. indicates desire to set aside reg for failure to consult

A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation’s impact on listed species.

That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).

Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving  the 2008 rule in place, despite numerous flaws.

The judge said that as she was reading through the briefs prior to the hearing, “it crossed my mind that it was time for some rulings in the case.”

Later, near the end of the approximately one-hour status conference, she said the case was “an example of what happens” when a case is stayed for a long time: “It doesn’t get better, it just gets worse.”

The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.

Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs’ attorney said the rule was harming people today.

“We would submit you have to consider all the deficiencies in the rule,” he said.

The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.

But Rothstein wasn’t fond of the “vacatur terminology, preferring instead to speak of “setting aside” an “invalid” rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn’t consulted under Section 7 of the ESA.

Here’s the “minute order” posted in the case docket today:

MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)

 

Links

Sep 052013
 

Here’s the opinion (PDF) from U.S. District Judge John D. Bates in American Forest Resource Council v. Ashe (12-111 JDB, D.D.C). Here it is in text format.

I told you we’d win (Photo by Glenn Bartley)

Excerpts: The parties make much of FWS’s footnote interpreting the phrase “interbreeds when mature” in the ESA’s definition of “species.” In the footnote, FWS takes the position that the phrase means that “a DPS must consist of members of the same species or subspecies,” as defined by the “biological species” concept. See Remand Mem. 1 n.1. Intervenors assert that the phrase means that members of a DPS must be “capable of interbreeding.” … And AFRC asserts that the phrase means that members of a DPS must actually interbreed. … The Court need not now decide which (if any) of these interpretations is correct, however, because under any interpretation of the phrase “interbreeds when mature,” FWS has rationally concluded that central California murrelets actually interbreed when mature with other murrelets in the tri-state DPS, albeit at low levels. The judge said he needed “to clarify the following statement in [his] March 30, 2013 memorandum opinion: ‘If the genetic distinctiveness of the two populations comprising the tri-state DPS means that they do not interbreed when mature, then FWS’s significance determination cannot be upheld.’ See Am. Forest Res. Council, 2013 WL 1289724, at *11″ (Opinion here) In remanding FWS’s significance determination here, the Court’s intent was not to define once and for all the meaning of the arguably “ambiguous” phrase “interbreeds when mature.” Because the phrase appears in the ESA’s text, the Court concluded that interbreeding when mature, however defined, is a statutory condition for classification as a DPS. The Court did not hold that FWS must make an explicit finding that members of a DPS interbreed when mature in every case. But because in this case AFRC had asserted that two genetically distinct populations cannot interbreed when mature, and because FWS had not spoken on this disputed issue of biology, the Court remanded the significance determination to obtain the agency’s considered view. See Am. Forest Res. Council, 2013 WL 1289724, at *11. The Court intended only to have FWS determine whether central California murrelets and other murrelets in the DPS “interbreed when mature,” not to define the meaning of that phrase for the agency. Accordingly, a perhaps better formulation of the Court’s prior statement is that FWS’s significance determination would be called into question if the genetic distinctiveness of the two murrelet populations in the tristate DPS means that they do not, or cannot, “interbreed when mature,” however that phrase is defined. In light of its determination that central California murrelets interbreed when mature with other murrelets in the DPS, FWS reaffirmed its January 2010 significance determination. Its reasoning is not difficult to discern. Factors that may bear on a DPS’s biological and ecological significance include: “[p]ersistence of the discrete population segment in an ecological setting unusual or unique for the taxon,” “[e]vidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,” and “[e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.” 61 Fed. Reg. at 4725. FWS initially found that loss of the tri-state DPS would result in a significant gap in the murrelet’s range because the tri-state area accounts for about 18 percent of the murrelet’s coastal distribution, spans 17 degrees of latitude, is located at the southern periphery of the murrelet’s range, and contains an ecologically distinct forest system, the coastal redwoods. See 75 Fed. Reg. at 3430. The agency also found that loss of the DPS would result in the loss of “unique genetic characteristics” that are significant to the taxon. [B]ecause FWS has concluded that central California murrelets are properly included in the DPS, its previously stated rationales remain valid and, in the Court’s view, are adequate to withstand arbitrary and capricious review. The Court will not second guess FWS’s determination that a hypothetical loss of 18 percent of the murrelet’s coastal distribution and 17 degrees of latitude would be significant, as that is the kind of judgment that is best left to agency expertise. Re: vacatur and remand FWS has not asked for vacatur, and neither AFRC nor intervenors argue that any remand should be with vacatur, so the Court does not consider vacatur an option at this time. The Court therefore weighs the equities of remanding without vacatur against those of deciding the merits and possibly vacating the challenged rule. Weighing the equities here, the Court will grant FWS’s motion for voluntary remand without vacatur. As previously stated, avoiding further litigation of this matter will conserve the resources of the Court and the parties, as well as taxpayer dollars. A substantial part of the relief requested – a remand of the murrelet critical habitat designation to FWS – will be granted whether FWS’s motion is granted now or AFRC prevails on the merits later. Although FWS hints that briefing on the merits would be “solely” about vacatur, the Court has little confidence that the merits litigation would be so confined. AFRC does not limit its request to briefing the issue of vacatur, and intervenors do not concede that AFRC would prevail on its critical habitat claims. See AFRC VR Opp’n 2, 19 (request to “present[] dispositive summary judgment motions on the critical habitat claims”); Intervenors’ VR Resp. 4-5 (stating that merits determination would require “review of the not-yet-filed administrative record and fully-developed legal argument”). And even if the appropriateness of vacatur were the only issue before the Court, determining the seriousness of the critical habitat rule’s deficiencies would necessitate the expenditure of considerable time and resources. Finally, the Court concludes that, although AFRC has raised some legitimate objections, it will not be unduly prejudiced by remand without vacatur. As a practical matter, since briefing on the merits has not yet transpired, it would be many months before a decision on the merits could be rendered by the Court. The critical habitat designation would remain in force during that time regardless of the Court’s decision today, and so the additional amount of time that AFRC will be subject to the rule as a result of voluntary remand is actually less than three years. Also, the murrelet critical habitat designation is a longstanding rule that may be justified by FWS on remand. The real possibility that the rule’s deficiencies can be addressed on remand, and hence that the rule would not be vacated in any case, decreases the expected benefit to AFRC and the public of going forward with this litigation now. That possibility also increases the likelihood that a three-year interim vacatur will be unduly disruptive. And AFRC has not convinced the Court that the ill-defined prejudice to its timber interests outweighs the certain benefits to be gained by avoiding further litigation. Hence, the Court will remand the murrelet critical habitat designation to FWS and order FWS to submit a new proposed critical habitat designation by not later than September 30, 2015, and a new final critical habitat designation by not later than September 30, 2016.