Contacts: Tom Buckley, (505) 248-6455, Tom_Buckley@fws.gov
Bruce Sitko, (928) 367-4281, bsitko@azgfd.gov

The National Fish and Wildlife Forensics Laboratory in Ashland, Oregon, has determined that Mexican wolf mp1242 died as the result of a gunshot wound.

On November 23, 2011, Arizona Game and Fish Department (AGFD) personnel on the Mexican Wolf Interagency Field Team (IFT) were contacted by a member of the public who reported seeing an injured Mexican wolf in the Apache-Sitgreaves National Forests south of Big Lake, Ariz. The IFT located and observed the wolf the next day by tracking its radio collar signal. They identified it as mp1242, a young male that was born earlier in 2011 into the Bluestem Pack. After confirming the wolf was injured, the IFT initiated efforts to capture the animal and evaluate its injury.

The IFT captured mp1242 on December 3 and found that it had an injured rear leg and was in poor body condition. In phone consultation with a veterinarian, project personnel attempted to implement life-saving measures en route to the veterinarian office, but the wolf died of its injuries.

“I am disappointed and concerned by this news of another wolf dying due to gunshot wounds,” said Benjamin Tuggle, the U.S. Fish and Wildlife Service’s Southwest Regional Director. “It is hard for me to rationalize the illegal killing of these wolves or any other endangered species. They are the natural heritage we are hoping to leave to future generations.”

“We are bringing the full weight of the law to bear on these illegal activities and will continue to focus on this impediment to recovery,” said Tuggle.

U.S. Fish and Wildlife Service (Service) law enforcement agents, in collaboration with the AGFD have opened an investigation. All of the Service’s available regional law enforcement resources are being utilized.

A reward of up to $10,000 is being offered for any information leading to the apprehension of the individual or individuals who may be responsible for the death of this wolf. Individuals who have information are urged to contact the U.S. Fish and Wildlife Service, Office of Law Enforcement in Albuquerque, New Mexico at (505) 346-7828 or in Alpine, Arizona. at (928) 339-4232, or AGFD Operation Game Thief hotline at (800) 352-0700. Killing a Mexican gray wolf is a violation of the Endangered Species Act, punishable by up to a $100,000 fine and/or up to a year in prison.

Mexican wolf reintroduction is a joint effort by the Service, AGFD, White Mountain Apache Tribe, USDA Forest Service, USDA Animal and Plant Health Inspection Service – Wildlife Services, and other stakeholders, including Graham, Greenlee and Navajo Counties in Arizona.

The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals and commitment to public service. The U.S. Fish and Wildlife Service works cooperatively with the American public to continue the conservation legacy of America’s great outdoors. For more information on our work and the people who make it happen, visit www.fws.gov.

Recent news links:

• GAO releases report on “quantity, quality, and management of water produced during oil and gas production (full report in PDF)
• In 2-1 ruling, Ninth Circuit orders Forest Service to take another look at Sierra Nevada plan (2/3)
• Budget released: Obama Administration keeps FWS funding steady, proposes hike in listing, cut in critical habitat (entire Greenbook)
• Excerpt from Endangered Species section, page 9: “In addition to the $2,932,000 that would be shifted to listing from within the subcap for critical habitat designation for already listed species, the service is requesting an increase of $1,500,000. Settlement agreements and a multi-year work plan approved by a federal district court in 2011 have allowed the service to address our backlog of listing determinations for candidate species, including critical habitat designations concurrent with the listing. This redistribution and increase of funding for listing will be used to meet the terms and conditions of these settlements and allow the service to address the highest biological priorities of the listing program for the years ahead. The funding increase in listing will allow the service to publish approximately 13 additional proposed or final rules in FY 2013.”

KESSLER TOSSES COUNTERPART NFP REGS

A federal judge has invalidated regulations from 2003 designed to “streamline consultation on proposed projects that support the National Fire Plan” (Defenders of Wildlife v. Salazar, 04-1230 GK, D.D.C.). (Opinion and order here.) The “joint counterpart” regulations were issued by six federal agencies — BLM, the Fish and Wildlife Service and National Park Service, and the Bureau of Indian Affairs in the Department of the Interior; the Forest Service (in USDA), and the National Marine Fisheries Service (or NOAA Fisheries) in the Department of Commerce. Ruling on a motion for reconsideration of her 2006 opinion, U.S. District Judge Gladys Kessler in Washington, D.C., concluded that “there is no evidence” to support either of the rationales offered in the final adoption of the regulations. (Here are Kessler’s 2006 opinion and order.)

She said the government “seemed to recognize” that its argument that fire consultations were taking too long was unjustified.

“There is simply no evidence in the record that the Section 7 consultation process actually resulted in any delay to any National Fire Plan project,” she said. “The government itself seemed to recognize that fact in its Final Rule when it said that ‘the issue is not whether the regulatory process has delayed NFP projects, but rather whether it can be streamlined so as to expedite the projects.”

In fact, she said, “there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures.”

“By the time the Government adopted the final Regulations, it conceded that the preexisting, recently streamlined, Section 7 consultation processes were working: that streamlined process significantly improved coordination between the consulting agencies, and that ‘[t]hese types of streamlining processes can work well to meet statutory timelines.’ 68 Fed. Reg at 68259.”

When you finally get around to covering a Monday story on Wednesday, you have to come up with a new hook. Fortunately, there’s one staring me in the face (and reliably recorded on my beat-up Olympus–at least it better be).

At a Georgetown University Law Center forum a few hours after the arguments in Sackett v. EPA had ended, Professors Richard Lazarus of Harvard and Richard Frank of UC-Davis confidently predicted an overwhelming victory for Chantell and Michael Sackett. (To be fair, Frank has already shared his views on Legal Planet, so my hook isn’t unique. But unlike Frank, I’m sticking his prediction a bit higher up in the narrative.)

“This case makes me uncomfortable,” Frank started off, before launching into his analysis of the case and the arguments conducted by Pacific Legal Foundation attorney Damien Schiff and Deputy Solicitor General Malcolm Stewart — and, of course, his assessment of the attitudes expressed by the eight Supreme Court justices who questioned the lawyers.

He praised Schiff, both for “a very powerful brief; he told a story” and for his performance before the high court, the first time the thirtysomething lawyer has appeared on the biggest legal stage in the U.S.

“The Sacketts are likely to prevail by 7-2 or 8-1,” Frank said. He said it’s possible that Justice Ruth Bader Ginsburg could be the only holdout, but also that she might join a unanimous court in order to have some say over the content of the opinion.

Lazarus, an acknowledged Supreme Court expert who has participated in 40 cases before the court, agreed with Frank’s assessment and said Chief Justice John Roberts might very well assign the opinion to Ginsburg, because he likes to assign liberals to 9-0 decisions. That might provide the government with a “soft landing.”

“He’s going to have an institutional bias to giving this to a liberal justice,” Lazarus said.

But if for some reason the opinion goes to Justice Antonin Scalia, watch out, Lazarus said. In that case, there could be “a lot of dumping on the Clean Water Act and the Corps of Engineers.”

Lazarus called the eventual Supreme Court decision “potentially unanimous” and said he did not think the verdict would be closer than 8-1.

“It’s just a question of how sweeping the ruling is,” Lazarus said.

More coverage and commentary

• The Volokh Conspiracy
• SCOTUSBlog (story by longtime Supreme Court reporter Lyle Denniston)
• SCOTUSBlog’s Sackett page

U.S. District Judge John Bates previously found that DOI Secretary Ken Salazar’s withdrawal of the Bush Administration WOPR was illegal.

Pacific Rivers Council, which has sued BLM in Oregon over the revisions, asked Bates to issue an order under the All Writs Act “to enjoin the Secretary from making similar filings relying on the vacated and remanded withdrawal.” PRC argued that “Interior seeks to
frustrate this Court’s order with filings in the Oregon case that rely on the vacated and remanded withdrawal.”

Here’s some background from the opinion, issued today (Dec. 23). The first paragraph discusses Bates’ previous opinion.

After considering the parties’ cross-motions for summary judgment, the court rejected the Department’s argument. The Court concluded that “the Secretary lacked inherent authority to withdraw the 2008 ROD without following the procedures required under the FLPMA, and his decision to do so violated the APA.” Id. at 259. The court therefore granted the plaintiffs’ motion for summary judgment with respect to the withdrawal of the ROD, vacating and remanding the withdrawal back to the Department.

In so holding, the court stated that “the legal issue of whether the Secretary’s failure to consult under the ESA prior to approving the ROD in December 2008 ‘was erroneous’ is not properly before this Court.” Id. at 258. Rather, the court stated that the question before it was ”whether the Secretary’s decision to withdraw the ROD without formal proceedings under the FLPMA or the APA based on his conclusion of ‘legal error’ was arbitrary and capricious or in excess of statutory authority.” Id. at 258 n.1. The court also noted that “three challenges to the BLM’s alleged failure to consult under the ESA were filed in the U.S. District Court for the District of Oregon shortly after the December 2008 approval of the ROD.” Id. (citing Oregon Wild v. Shepard, Civ. No. 3:09–00060 (D. Or. filed Jan. 15, 2009); Pacific Rivers Council v. Shepard, Civ. No. 3:09–00058 (D. Or. filed Jan. 15, 2009); Forest Serv. Emp. for Env’t Ethics v. U.S. Fish and Wildlife Serv., 09–6019 (D. Or. filed Jan. 22, 2009)). Finally, the court noted that “because this court is remanding the Secretary’s withdrawal decision, the future record may shed additional light on the reasoning of the Secretary regarding the Western Oregon Plan Revisions ROD.” Douglas Timber, 774 F. Supp. 2d at 261.

Final rule from FWS Midwest Region wolf page

Salazar Announces Recovery of Gray Wolves in the Western Great Lakes, Removal from Threatened and Endangered Species List

States, tribes to assume management responsibility

12/21/2011

WASHINGTON — Secretary of the Interior Ken Salazar today announced that gray wolf populations in the Great Lakes region have recovered and no longer require the protection of the Endangered Species Act. The U.S. Fish and Wildlife Service is publishing a final rule in the Federal Register removing wolves in Michigan, Minnesota and Wisconsin, and in portions of adjoining states, from the list of endangered and threatened wildlife and plants.

From FWS Midwest wolf page

“Once again, the Endangered Species Act has proved to be an effective tool for bringing species back from the brink of extinction,” Secretary Salazar said. “Thanks to the work of our scientists, wildlife managers, and our state, tribal, and stakeholder partners, gray wolves in the western Great Lakes region are now fully recovered and healthy.”

The rule removing ESA protection for gray wolves in the western Great Lakes becomes effective 30 days after publication in the Federal Register.

“Gray wolves are thriving in the Great Lakes region, and their successful recovery is a testament to the hard work of the Service and our state and local partners,” said Fish and Wildlife Service Director Dan Ashe. “We are confident state and tribal wildlife managers in Michigan, Minnesota and Wisconsin will effectively manage healthy wolf populations now that federal protection is no longer needed.”

Wolves total more than 4,000 animals in the three core recovery states in the western Great Lakes area and have exceeded recovery goals. Minnesota’s population is estimated at 2,921 wolves, while an estimated 687 wolves live in Michigan’s Upper Peninsula and another 782 in Wisconsin. Each state has developed a plan to manage wolves after federal protection is removed.

Wolf populations in Wisconsin, Minnesota and Michigan will be monitored for at least five years to ensure the species continues to thrive. If it appears, at any time, that the gray wolf cannot sustain itself without the protections of the ESA, the Service can initiate the listing process, including emergency listing.

In the Service’s May 5, 2011, proposal to delist western Great Lakes wolves, the agency also proposed accepting recent taxonomic information that the gray wolf subspecies Canis lupus lycaon should be elevated to the full species Canis lycaon, and that the population of wolves in the Western Great Lakes is a mix of the two full species, Canis lupus and Canis lycaon. Based on substantial information received from scientists and others during the public comment period, the Service has re-evaluated that proposal, and the final rule considers all wolves in the Western Great Lakes DPS to be Canis lupus.

The Service also previously proposed delisting gray wolves in all or parts of 29 states in the eastern half of the United States. The Service continues to evaluate that portion of the May 5, 2011, proposal and will make a final separate determination at a later date.

Gray wolves were originally listed as subspecies or as regional populations of subspecies in the lower 48 states and Mexico under the ESA in 1973 and its predecessor statutes before that. In 1978, the Service reclassified the gray wolf as an endangered species across all of the lower 48 states and Mexico, except in Minnesota where the gray wolf was classified as threatened.

More information on the recovery of gray wolves in the Western Great Lakes can be found at www.fws.gov/midwest/wolf/

The ESA provides a critical safety net for America’s native fish, wildlife and plants. The Service works to actively engage conservation partners and the public in the search for improved and innovative ways to conserve and recover imperiled species.

To learn more about the Endangered Species Program, visit http://www.fws.gov/endangered/.

###

“In its Exploration Plan, Shell proposes drilling up to six exploration wells in Alaska’s Chukchi Sea beginning in the 2012 drilling season,” BOEM said in a news release:

Among the conditions of approval is a measure designed to mitigate the risk of an end-of-season oil spill by requiring Shell to leave sufficient time to implement cap and containment operations as well as significant clean-up before the onset of sea ice, in the event of a loss of well control. Given current technology and weather forecasting capabilities, Shell must cease drilling into zones capable of flowing liquid hydrocarbons 38 days before the first-date of ice encroachment over the drill site. Based on a 5-year analysis of historic weather patterns, BOEM anticipates November 1 as the earliest anticipated date of ice encroachment. The 38-day period would also provide a window for the drilling of a relief well, should one be required.

Approval is also conditioned on a series of other measures to increase safety and confirm the availability of response equipment, including a well capping and containment system, and to ensure that Shell takes important steps to avoid conflicts with subsistence activities. In addition to BSEE approvals, Shell must also obtain necessary permits from other agencies — the Environmental Protection Agency, the U.S. Fish & Wildlife Service, and the National Marine Fisheries Service.

Rep. Cynthia Lummis was the key source for Jeremy Pelzer’s article, which notes:

Under the agreement, negotiated by U.S. Fish and Wildlife Service officials and Gov. Matt Mead, the state’s roughly 243 wolves living outside of Yellowstone National Park and the Wind River Indian Reservation could be killed on sight in all but the northwest part of the state, where they would be designated as trophy game and could only be hunted with a license.

The plan also establishes a flex zone covering northern Sublette and Lincoln counties, as well as southern Teton County, in which wolves would be protected only from Oct. 15 until the end of the following February.

A spokesman for Mead told Pelzer the governor was “disappointed” by the news. But Renny MacKay “said Mead is confident Wyoming’s congressional delegation will try again for a no-sue clause, possibly as a stand-alone bill. (Mead) will keep supporting any effort to get that legislation through, and he knows that the congressional delegation will too,” MacKay said.

Chances of a stand-alone bill succeeding are remote, however, as a spokesman for Sen. Mike Enzi (R-Wyo.) told the newspaper.

Editor’s note: The way these things usually get done is through an appropriations rider.

Lummis issued a statement yesterday, which is reprinted below.

“The decision to pull the wolf language was based on politics, not policy. Radical environmentalists have the ear of many in Washington and their considerable sway in the White House is the reason for the removal of this important language. When the deal that gives Wyoming the ability to manage wolves is complete, environmental groups will resume their relentless lawsuits. Governor Mead’s successful negotiations with the U.S. Fish and Wildlife Service will ensure that wolf management in our state is returned to the most capable managers: Wyoming’s on the ground experts. I will fight tooth and nail to protect Wyoming’s right to manage wolves and all wildlife within our borders. ”

From the movie's web site; I did not obtain permission to copy and paste

More than 100 beluga whales are trapped in the ice in the Bering Sea. See NPR’s coverage here and CNN’s here (12/14/11). Also, this Alaska Dispatch account by Mia Bennett: Will Russian icebreaker make it in time to save 100 whales trapped in Arctic ice? (12/15/2011)

The story is eerily similar to that of a movie with Drew Barrymore due out in February, Big Miracle. Here’s the official site’s account. And here’s a synopsis from Wikipedia: “The film, directed by Ken Kwapis, is based on the 1989 book Freeing the Whales by Tom Rose, which covers Operation Breakthrough, the 1988 international effort to rescue gray whales from being trapped in ice near Point Barrow, Alaska.” A quick editorial comment: I saw the trailer in the theater recently and it was almost too sappy to sit through. I cannot speak to its historical veracity but wonder whether Barrymore is aware of the current situation and will again don a wet suit to free the whales.