Steve Davies

Steve Davies is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his professional 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 returned to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication, which is an independent venture. Click LinkedIn for more detail.

Jan 062015
 

Interior Secretary Sally Jewell has issued an order to address the effects of fire on sagebrush. (Press release)

“Targeted action is urgently needed to conserve habitat for the greater sage-grouse and other wildlife in the Great Basin, as well as to maintain ranching and recreation economies that depend on sagebrush landscapes,” said Secretary Jewell. “The Secretarial Order further demonstrates our strong commitment to work with our federal, state, tribal and community partners to reduce the likelihood and severity of rangeland fire, stem the spread of invasive species, and restore the health and resilience of sagebrush ecosystems.”

The order sets up a Rangeland Fire Task Force chaired by Deputy Secretary Mike Connor.

The press release is below.


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Date: January 6, 2015
Contact: Interior_Press@ios.doi.gov

Secretary Jewell Launches Comprehensive Strategy to Protect and Restore Sagebrush Lands Threatened by Rangeland Fire
 Builds on work with federal, state, tribal and non-government partners to protect economic activity and wildlife habitat vital to the Western way of life

WASHINGTON, DC – Secretary of the Interior Sally Jewell today issued a Secretarial Order calling for a comprehensive science-based strategy to address the more frequent and intense wildfires that are damaging vital sagebrush landscapes and productive rangelands, particularly in the Great Basin region of Idaho, Utah, Nevada, Oregon and California.

The strategy will begin to be implemented during the 2015 fire season. Goals include reducing the size, severity and cost of rangeland fires, addressing the spread of cheatgrass and other invasive species, and positioning wildland fire management resources for more effective rangeland fire response.

“Targeted action is urgently needed to conserve habitat for the greater sage-grouse and other wildlife in the Great Basin, as well as to maintain ranching and recreation economies that depend on sagebrush landscapes,” said Secretary Jewell. “The Secretarial Order further demonstrates our strong commitment to work with our federal, state, tribal and community partners to reduce the likelihood and severity of rangeland fire, stem the spread of invasive species, and restore the health and resilience of sagebrush ecosystems.”

The Secretarial Order establishes a top-level Rangeland Fire Task Force, chaired by Interior’s Deputy Secretary Mike Connor, includes five assistant secretaries, and lays out the goals and timelines for completing the Task Force’s work.

The Task Force will work with other federal agencies, states, tribes, local entities and non-governmental groups on fire management and habitat restoration activities. This includes enhancing the capability and capacity of our partners’ fire management organizations through improved and expanded education and training. The Task Force also will encourage improved coordination among all partners involved in rangeland fire management to further improve safety and effectiveness.

The Order builds on wildland fire prevention, suppression and restoration efforts to date, including the National Cohesive Wildland Fire Management Strategy, which provides a roadmap for achieving “all hands—all lands” cooperation, and the President’s wildland fire budget proposal to change how fire suppression costs are budgeted to treat extreme fire seasons the way other emergency disasters are treated. The budget proposal would provide greater certainty in addressing growing fire suppression needs while better safeguarding prevention and other non-suppression programs, such as fuels reduction and post-fire rehabilitation.

The accelerated invasion of non-native grasses and the spread of pinyon-juniper, along with drought and the effects of climate change, increased the threat of rangeland fires to the sagebrush landscape and the more than 350 species of plants and animals, such as mule deer and pronghorn, that rely on this critically important ecosystem. The increasing frequency and intensity of rangeland fire in sagebrush ecosystems has significantly damaged the landscape on which ranchers, livestock managers, hunters and outdoor recreation enthusiasts rely. This unnatural fire cycle puts at risk their economic contributions across this landscape that support and maintain the Western way of life in America.

Efforts to conserve and protect sagebrush habitat are the centerpiece of an historic campaign to address threats to greater sage-grouse prior to the U.S. Fish and Wildlife Service’s court-ordered 2015 deadline whether to propose the bird for Endangered Species Act protection.

Secretary Jewell is working with Western governors to improve wildland fire-fighting capacity at all levels, highlighting the proactive voluntary partnership with ranchers, farmers and other landowners to conserve the sagebrush landscape on private and public lands. Interior’s November 5-7, 2014, conference in Idaho, The Next Steppe: Sage-grouse and Rangeland Fire in the Great Basin, brought together fire experts and land managers at the federal, state and local levels who underscored the need for a comprehensive, landscape-scale strategy to rangeland fire suppression and prevention.

At the December 6, 2014, Western Governors’ Association winter meeting, Jewell directed her Department’s leadership to develop a comprehensive strategy to fight rangeland fire with an eye toward protecting rural communities, sagebrush landscapes and habitats essential to the conservation of the sage-grouse and other wildlife.

“These efforts will help Governors, state, tribal and local fire authorities, and those landowners on the ground – including rangeland fire protection associations and rural volunteer fire departments – make sure they have the information, training and tools to more effectively fight the threat of rangeland fires,” said Jewell. “To protect these landscapes for economic activity and wildlife like the greater sage-grouse, we need a three-pronged approach that includes strong federal land management plans, strong state plans, and an effective plan to address the threat of rangeland fire.”

Because about 64 percent of the greater sage-grouse’s 165 million acres of occupied range is on federally managed lands, Interior’s Bureau of Land Management and the Department of Agriculture’s U.S. Forest Service are currently analyzing amendments to existing land use plans to incorporate appropriate conservation measures to conserve, enhance and restore greater sage-grouse habitat by reducing, eliminating or minimizing threats to the habitat.

State and private lands, which make up a significant portion of the priority and general habitat for the greater sage-grouse, are also critical for the species. As a result, the Department is working in an unprecedented partnership with the states to provide strong habitat protection and conservation measures on the lands they administer. As part of her efforts with Western governors, Secretary Jewell encouraged, assisted and highlighted the proactive, voluntary state and federal partnership with ranchers, farmers and other landowners to conserve the sagebrush landscape on private and public lands.

The rangeland fire Secretarial Order will help frame the third part of the greater sage-grouse conservation strategy by encouraging further federal, state, tribal and local protection for those vulnerable sagebrush lands in the Great Basin states.

Greater sage-grouse once occupied more than 290 million acres of sagebrush in the West, but the bird, known for its flamboyant mating ritual at sites called leks, has lost more than half of its habitat since then. Settlers reported that millions of birds once took to the skies; current estimates place population numbers between 200,000 and 500,000 birds. The species now occurs in 11 states and two Canadian provinces. More information on the greater sage-grouse and the ongoing, collaborative work to conserve the sagebrush landscape is available at: http://www.fws.gov/greatersagegrouse/

Jan 052015
 

The Forest Service and Fish and Wildlife Service adequately reviewed a thinning project in the Nez Perce National Forest, the Ninth Circuit concluded in an unpublished opinion released today (Alliance for the Wild Rockies (AWR) v. Brazell, 14-35050). The judges on the opinion are M. Margaret McKeown, Richard C. Tallman and Michael Daly Hawkins.

AWR and Friends of the Clearwater were appealing a year-old district court decision that also sided with the agencies. In particular, the environmental groups said FWS and the Forest Service had not properly accounted for the impact of the 2,598-acre project on  the fisher, goshawk, pileated woodpecker and bull trout, only the last of which is listed under the ESA.

The appeals court disagreed. “We find that the federal agencies satisfied their obligations under [the National Forest Management Act], NEPA, the ESA, and the APA before implementing the project to improve long-term habitat and the health of the forest.”

Regarding NFMA, the court said, “Although the Nez Perce Forest Plan requires USFS to monitor management indicator species (including fisher, goshawk, and pileated woodpecker) populations at the forest level, nothing in the Plan requires USFS to conduct site-specific monitoring before implementing individual projects like the Little Slate Project.”

NEPA

“After thoroughly reviewing the Little Slate Project Final EIS, we are satisfied that USFS took the requisite ‘hard look’ at the project’s potential impacts on the species. The Little Slate Project EIS closely examines the project’s potential impact on fisher, goshawk, pileated woodpecker, and bull trout by considering how the project will degrade or improve those species’ critical habitats. This discussion includes an analysis of any potential cumulative environmental impact to which the project would contribute.”

ESA

“In its Biological Opinion relating to the Little Slate Project, FWS concluded that the project would not jeopardize bull trout—the only listed species relevant here—or adversely modify its critical habitat. Consistent with the ESA, FWS based this conclusion on the ‘best scientific and commercial data available.’ This “no jeopardy” conclusion is supported by evidence in the record that shows that the project, while temporarily disrupting some bull trout habitat in the short term, will have a long-term positive impact on many of the streams in which bull trout live and reproduce.”

Dec 302014
 

The Fish and Wildlife Service will conduct a status review on the threatened coastal California gnatcatcher in response to a delisting petition, the service said in a 90-day finding to be officially published Dec. 31.

Pacific Legal Foundation filed the petition earlier this year, claiming the bird was not a valid subspecies.

The service’s finding was brief, to say the least. In its entirety, it reads, “Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted for the coastal California gnatcatcher (Polioptila californica californica).

“Thus, for the coastal California gnatcatcher, the service requests information regarding the species taxonomy and listing factors under section 4(a)(1) of the Act.”

A news release was more specific. It said FWS “is particularly interested in receiving new morphological, genetic or other relevant information about the bird; analyses or new interpretations of existing morphological, genetic or other information; the methods, results and conclusions of 2000 and 2013 research by Robert Zink et al., on which the 2014 petition heavily relies; and information related to consideration of the coastal California gnatcatcher as a Distinct Vertebrate Population Segment (DPS) under the ESA.”

An earlier petition filed by PLF resulted in a negative 90-day finding. But this time, the petitioners have a new study of DNA evidence.

Polioptila californica californica (photo from FWS)

The petition was filed by PLF on behalf of Property Owners Association of Riverside County, the Center for Environmental Science, Accuracy & Reliability (CESAR), and the Coalition of Labor, Agriculture, and Business (COLAB). The California Building Industry Association and the National Association of Home Builders, represented by Robert Thornton, a partner with Nossaman LLP, joined the petition.

“[T]he petition is based on a peer-reviewed study of gnatcatcher DNA by Dr. Robert Zink of the University of Minnesota and several other scientists,” PLF said in a news release. “The 2013 study, published in the respected ornithological journal The Auk, confirms earlier genetic studies of gnatcatcher DNA by Dr. Zink. The new study concludes that gnatcatchers in California are not genetically distinct from the abundant populations of gnatcatchers south of the border. The new DNA evidence is precisely the information that federal officials have suggested would warrant removing the ESA listing.”

Zink’s study is contained in the delisting petition

Gnatcatcher docket

Dec 292014
 

FWS agrees to conduct status review

The Fish and Wildlife will review the status of the monarch butterfly before deciding whether to propose listing it as threatened or endangered, the agency announced Dec. 29.

The 90-day finding, the first step the service takes in responding to listing petitions, will be published Dec. 31 in the Federal Register. (The notice was released for public inspection Dec. 30.)

In today’s announcement, FWS said that threats to the butterfly “include habitat loss – particularly the loss of milkweed, the monarch caterpillar’s sole food source – and mortality resulting from pesticide use. Monarch populations have declined significantly in recent years.”

Chrysalid and monarch (from monarch-power.com, a renewable energy company in Scottsdale, Ariz.)

The petition was filed by the Center for Biological Diversity, Center for Food Safety, Xerces Society and “renowned monarch scientist Dr. Lincoln Brower,” the petitioners said in their own news release, which asserted:

The butterfly’s dramatic decline is being driven in large part by the widespread planting of genetically engineered crops in the Midwest, where most monarchs are born. The vast majority of genetically engineered crops are made to be resistant to Monsanto’s Roundup herbicide, a potent killer of milkweed, the monarch caterpillar’s only food. The dramatic surge in Roundup use with Roundup Ready crops has virtually wiped out milkweed plants in Midwestern corn and soybean fields. In the past 20 years it is estimated that these once-common iconic orange and black butterflies may have lost more than 165 million acres of habitat — an area about the size of Texas — including nearly a third of their summer breeding grounds.

Monarch docket

Dec 232014
 

Dec 222014
 

San Luis & Delta-Mendota Water Authority v. Locke (12-15144) (D.C. No. 09-1053-LJO-DLB)

Panel: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Thomas O. Rice, District Judge, sitting by designation from the Eastern District of Washington. Opinion by Tallman.

Here’s the opinion and here’s the summary of the decision from the court:

The summary “constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded for entry of summary judgment in favor of defendants, federal agencies and intervenor-environmental groups, in an action pertaining to a formal Biological Opinion developed by the Commerce Department’s National Marine Fisheries Service pursuant to the Endangered Species Act regarding the impact of continuing water extraction in the California Central Valley on certain threatened and endangered Salmonid species.

The Marine Fisheries Service in its 2009 Biological Opinion determined that the Department of Interior Bureau of Reclamation’s proposed water project in the Central Valley would jeopardize some of the Delta’s endangered Salmonids. To remedy this problem, the Marine Fisheries Service has required the Bureau to change the way it pumps water out of the Central Valley’s rivers. A number of groups that depend on the Central Valley’s water sued to halt this change. On summary judgment, the district court found, in part, that the Marine Fisheries Service violated the Administrative Procedure Act’s arbitrary or capricious standard when developing much of the Biological Opinion.

On an initial evidentiary question, the panel held that the district court went beyond the exceptions, set forth in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2004), when it admitted extra-record declarations and substituted the analysis in those declarations for that provided by the Marine Fisheries Service.

The panel held that the district court did not give the Service the substantial deference it was due under the Administrative Procedure Act. The panel found that the components of the Biological Opinion invalidated by the district court were reasonable and supported by the record and therefore the panel upheld the Biological Opinion in its entirety.

Specifically, the panel found that: (1) the Service acted within its substantial discretion when it used raw salvage data instead of data scaled to fish population to set flows in the Old and Middle Rivers; (2) the Service’s jeopardy opinion components were not arbitrary and capricious as they pertained to the winter-run Chinook, the Southern Resident orca, the steelhead critical habitat, and the impact of indirect mortality factors on the listed species; and (3) the Biological Opinion’s challenged reasonable and prudent alternative actions were not arbitrary and capricious.

Affirming, on cross-appeal, several components of the district court’s opinion, the panel held that the Marine Fisheries Service did not need to distinguish between discretionary and non-discretionary actions; that the Biological Opinion’s indirect mortality factors were direct effects under the Endangered Species Act; and that Bureau of Reclamation was not independently liable under the Endangered Species Act.

Dec 192014
 

The Ninth Circuit has found Sea Shepherd, founder Paul Watson and six volunteer members of the Sea Shepherd US board in contempt of court for violating an injunction that forbade the group’s ships from coming within 500 yards of Japanese whaling ships (Institute of Cetacean Research v. Sea Shepherd, 12-35266).

Order and amended opinion from May 24, 2013  |  Tweets

“Our thorough review of the record in this case, and the concessions of counsel at oral argument, compel us to hold Sea Shepherd US, Watson, and Sea Shepherd US’s volunteer board members in contempt for violating our injunction,” Chief Judge Alex Kozinski and Circuit Judges A. Wallace Tashima and Milan D. Smith said in their 51-page opinion, on which Smith took the lead.

Watson

Here’s the opinion’s first paragraph:

Institute of Cetacean Research (Cetacean), Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki Miura (collectively, Plaintiffs) filed this
contempt proceeding against Sea Shepherd Conservation Society (Sea Shepherd US), its founder Paul Watson, its administrative director Susan Hartland, and six volunteer members of the Sea Shepherd US board (collectively, Defendants). The Plaintiffs allege that the Defendants violated our injunction prohibiting Sea Shepherd US, Watson, and “any party acting in concert with them” from physically attacking or coming within 500 yards of the Plaintiffs’ whaling and fueling vessels on the open sea.

Excerpts from the end (Full opinion embedded below)

We hold that the Plaintiffs are entitled to recover attorney’s fees and costs incurred in bringing and prosecuting these contempt proceedings. “[T]he cost of bringing the violation to the attention of the court is part of the damages suffered by the prevailing party and those costs would reduce any benefits gained by the prevailing party from the court’s violated order.” Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir. 1985). At a minimum, the Plaintiffs shall recover their fees and costs against Sea Shepherd US and Watson. The Plaintiffs are also entitled to compensation for any actual damages suffered and resources (such as fuel and personnel costs) that were wasted as a result of the Defendants’ contumacious acts interfering with the Plaintiffs’ mission. We will re-refer this matter to the Appellate Commissioner to determine the appropriate amount of attorney’s fees and costs as well as compensatory damages to award. The Commissioner shall determine whether the volunteer directors should also be held liable, and the extent to which each of them should be held liable, jointly and/or severally.

The Plaintiffs’ requests for coercive sanctions and an order to compel compliance should be directed to the district court. Our opinion of February 25, 2013, as amended May 24, 2013, provided that the preliminary injunction “will remain in effect until further order of this court.” Inst. of Cetacean Research, 725 F.3d at 947. However, we issued our mandate on June 7, 2013, at which time the district court assumed supervision over the Defendants’ present compliance with the preliminary injunction. While we retain jurisdiction to order remedial relief for acts of contempt that took place prior to the issuance of our mandate, because these coercive sanctions are forward-looking, we believe that policing the Defendants’ continuing compliance with the preliminary injunction is better left to the district court, subject to our review on appeal. This panel retains jurisdiction over all appeals in this case.

Dec 192014
 

Opinion and order (latter embedded below) in Humane Society of the U.S. . Jewell (13-00186-BAH, D.D.C.)

Howell, in D.C., reinstates protections
in Michigan, Minnesota and Wisconsin

In a news release, the Humane Society said that in her opinion, U.S. District Judge Beryl Howell “chided the USFWS for failing to explain why it ignored the potential for further recovery of wolves into areas of its historic range that remain viable habitat for the species.  The court also noted that the USFWS has failed to explain how the “virtually unregulated” killing of wolves by states in the Great Lakes region does not constitute a continued threat to the species.”

HSUS complaint  ♦  Final rule delisting Great Lakes wolf (12/28/11)  ♦  FWS Western Gray Lakes gray wolf page  ♦  ECOS page  ♦  CBD page  ♦  “Policy Issues Regarding Wolves in the Great Lakes Region”  ♦  Dateline Minnesota  ♦  AP (in Detroit News)  ♦  Selected court documents:  FWS brief  ♦  HSUS brief  ♦ Minnesota brief  ♦  Minn. 2012 wolf rules  ♦  HSUS opp. to AFWA amicus request  ♦  Declaration of Edward K. Boggess

From AP story about Minnesota:

ST. PAUL, Minn. — State officials say Minnesotans can no longer kill wolves unless their lives are in danger.

The change was brought about by a federal judge’s ruling Friday effectively restoring gray wolves to the endangered species list in Great Lakes states.

Department of Natural Resources spokesman Chris Niskanen says that means farmers and ranchers concerned about wolves preying on cattle can’t kill the wolves themselves. Instead, they should call conservation officers.

U.S. District Judge Beryl Howell’s decision could also halt Minnesota’s wolf hunting and trapping seasons. But Niskanen says the federal government’s stance could change again before the state sets its wolf hunting season next summer.

Photo links to Legal Times story in unrelated case