Sep 162015
 

The Forest Service must take another look at a mining project it approved in the Coronado National Forest, following a federal judge's decision that found the service improperly excluded the project from NEPA review (Defenders of Wildlife v. U.S. Forest Service, 14-2446-TUC-RM, D. Ariz.).

The now-postponed Sunnyside Project, proposed by Regal Resources, would involve "six temporary drill sites to assess copper mineralization," U.S. District Judge Rosemary Márquez said in her order, issued yesterday (Sept. 15).

"USFS’s determination that the project can be completed in one year or less is unsupported by the record. Therefore, USFS’s approval of the project using the categorical exclusion for short-term mineral explorations pursuant to 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious," she said.

The service had approved the project in April after consulting with the Fish and Wildlife Service and concluding that the project would not adversely affect endangered species, including the western yellow-billed cuckoo. The plaintiffs, including the Patagonia Area Resource Alliance, filed a supplemental complaint that dropped the ESA claims.

It turned out that NEPA was enough.

"The decision authorized Regal Resources to run its drill rigs for at least five months in sensitive endangered species’ habitat," Defenders of Wildlife said in a news release announcing the judge's decision. "Loud mineral drilling operations and construction would occur 24 hours a day, seven days a week (using artificial lighting at night) with total project operations and reclamation lasting up to three years."

The Forest Service did not adequately explain why "potential effects to the Mexican spotted owl are certain to be environmentally insignificant," the judge said. "[T]he administrative record indicates that the effects of the Sunnyside Project’s nighttime lighting on the Mexican spotted owl are uncertain, and that negative effects on the owl from project noise can be anticipated in up to 26% of the owl’s non-breeding territory."

In addition, she said, "USFS’s determination that the Sunnyside Project will not have significant environmental effects is based in large part upon the anticipated ability of listed species, such as the ocelot and jaguar, to avoid the affected area during project activities. This basis for USFS’s determination is undermined by the [Forest Service's] revised Decision Memorandum’s failure to consider the Sunnyside Project’s cumulative effects in relation to other temporally and geographically similar mineral exploration projects."

Regarding cumulative impacts, the judge said, "While the ESA definition of cumulative effects ignores future federal actions (see 50 C.F.R. § 402.02), the broader NEPA definition looks to 'the incremental impact of the action when added to [all] other past, present, and reasonably foreseeable future actions.' 40 C.F.R. § 1508.7. In relying upon the revised [Biological Assessment's] EPA [sic: Judge surely meant to write "ESA"] cumulative impact analysis, the revised Decision Memorandum failed to conduct a proper cumulative impact analysis under NEPA."

"[I]n finding that the Sunnyside Project was not likely to adversely affect listed species, USFS and USFWS relied heavily on the project’s limited temporal and geographic scope. The record indicates that the Hermosa Project will have similar  environmental effects as the Sunnyside Project, meaning the environmental disturbances from the projects will exist over a larger geographical area and a larger temporal timeframe than that analyzed in the revised Decision Memorandum. Even if the projects will not temporally overlap, USFS has not shown that its failure to analyze the cumulative impact of the Sunnyside and Hermosa projects clearly had no bearing on its conclusion that the Sunnyside Project would not have cumulatively significant environmental effects."

USFS also "failed to clearly show" that the two projects won't occur at the same time. The Hermosa Project is due to start in November.

"The argument that the Sunnyside Project and the Hermosa Project will have no cumulative impacts because they will not temporally overlap is a post hoc rationalization unsupported by the information available to USFS at the time it issued its revised Decision Memorandum," Márquez  wrote.

 

Mar 022015
 

Background from WWP

The Bureau of Land Management must go back and try to explain its decision to allow grazing on the Sonoran Desert National Monument, a federal judge has ruled (Western Watersheds Project v. BLM, 13-1028-PHX-PGR, D. Ariz.).

"The BLM has been ordered to file a supplemental report providing the reasoned explanations for its decision or to adopt different decisions by April 24, 2015," said Western Watersheds Project in a news release.

Sierra Club sued BLM with WWP.

“It is clear that the continued livestock grazing in the Sonoran Desert National Monument is unsustainable --  the science supports that,” said Sandy Bahr, Chapter Director for the Grand Canyon (Arizona) Chapter of Sierra Club. “The court recognized that BLM was not meeting its requirements to justify grazing on lands where it is clearly inappropriate and where it causes harm to the things the monument was established to protect, including desert bighorn sheep, pronghorn, desert tortoise, and mule deer."

According to U.S. District Judge Paul Rosenblatt's order (excerpts follow):

"In sum, BLM did not provide an adequate explanation in the record to support its setting of, and/or adustments to, the objectives for the limy fan, sandy wash, limy upland deep, and granitic hills ecological sites. BLM’s setting of these plant community objectives was therefore arbitrary and capricious."

"The Court will therefore grant summary judgment in favor of WWP to the extent it seeks remand to the BLM, but will deny summary judgment, without prejudice to renewal, to the extent WWP seeks to vacate BLM’s decision. The Court will deny BLM’s motion for summary judgment without prejudice to renewal. The Court will remand to BLM to provide it with the opportunity to either articulate reasoned explanations and responses, or adopt different decisions with reasoned explanations that support them."

"For all of the reasons stated above, the Court concludes that BLM has failed to adequately explain some of its decisions that led to the [Land Health Evaluation] and compatibility determinations, and failed to address significant concerns raised in a peer  reviewer’s comments. The LHE is therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)."

"However, it appears that BLM may be able to readily cure the defects in its decision-making process if given an opportunity to do so. Accordingly, the Court finds that this is one of those “rare circumstances” in which remand without vacatur is appropriate."

Nov 062014
 

From FR notice, Nov. 6, 2014 

View from Grand Canyon Lodge (North Rim) NPS photo by Jessica Pope

"On October 6, 2014, a suspected gray wolf was seen wandering in the area of the North Rim of the Grand Canyon in Arizona. Deer hunting season is beginning in this area of Arizona, and it is believed that the wolf may be in danger of possible harm and could accidentally be shot either as a result of misunderstanding of status or misidentification. We, the U.S. Fish and Wildlife Service have, under an Endangered Species Act (ESA) permit, authorized qualified researchers to capture, draw blood, and possibly affix a brightly colored GPS radio collar on the suspect wolf and release it back into the general area where it was captured. It is essential for its safety to conduct these actions."

. . .

"Without being able to trap and identify the animal, it is unknown as to whether it is a gray wolf or some type of wolf-dog hybrid."

Federal Register | Emergency Exemption; Issuance of Emergency Permit To Capture a Suspected Gray Wolf in the Area of the North Rim of the Grand Canyon, Arizona. (same as link above)

Sonoran bald eagle not listed (again)

 Posted by on April 20, 2012
Apr 202012
 

The Fish and Wildlife Service has declined again to list the bald eagle in Arizona as threatened or endangered. The service's news release is pasted below.

Contacts:  Steve Spangle, (602) 242-0210, Steve_Spangle@FWS.Gov,  Tom Buckley (505) 248-6455, Tom_Buckley@FWS.Gov, Jeff Humphrey (602) 242-0210, Jeff_Humphrey@FWS.Gov

Service Determines Bald Eagle in the Sonoran Desert Does Not Warrant Protection under List of Endangered and Threatened Species

The U.S. Fish and Wildlife Service today [Friday, April 20] announced the results of a revised 12-month finding on a petition to list the Sonoran Desert Area population of bald eagle (Haliaeetus leucocephalus) as threatened or endangered under the Endangered Species Act (ESA). After review of the scientific and commercial information used in its previous determination, the Service has found that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS) and listing the Sonoran Desert Area population of bald eagle is not warranted at this time.

Pursuant to a November 30, 2011, court order, the Service drafted a new 12-month finding on the petition to list the Sonoran Desert Area population of bald eagle as a DPS. The court ordered the Service to base this new 12-month finding on the information that was used to reach the February 25, 2010, 12-month finding that this population was not a listable entity under the ESA.

To determine if a DPS designation is appropriate, the Service has a three-step evaluation process. First, the Service determines whether a vertebrate population is discrete and, if the population is discrete, then determines whether the population is significant. If the population is determined to be both discrete and significant, then the DPS policy requires the Service to determine if the species would meet the requirements for endangered or threatened under the ESA.

The Service determined that the Sonoran Desert Area population of bald eagle does meet the discreteness criteria under DPS policy. However, the Service determined that this population does not meet the significance requirement. After reviewing the 2010 information, as required by the court, the Service found no direct or indirect evidence that would indicate persistence in the Sonoran Desert Area is biologically or ecologically important to the taxon as a whole. The Service also found that: (1) loss of the population would not result in a significant gap in the range; (2) the population does not represent the only surviving natural occurrence of the bald eagle; (3) and the population’s genetic characteristics do not differ markedly from those of other bald eagle populations.

The Service then went one step further to provide additional information about the Sonoran Desert Area population of bald eagle and conducted a threats assessment detailing the nature, scope, and likely effect of the threats to the population and the species to determine if the species would meet the listing requirements for endangered or threatened under the ESA, were it a listable entity. Based on the best available information, none of these poses a significant threat at a population level. If the Sonoran Desert Area population of the bald eagle were a listable entity, listing would not be warranted.

The Sonoran Desert Area population includes all bald eagle territories within Arizona, the Copper Basin breeding area in California near the Colorado River, and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert and adjacent transitional communities.

The Sonoran Desert population of bald eagles continues to be protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. This finding will not affect the status of the Sonoran Desert population of the bald eagle under State laws or suspend any other legal protections provided by State law.

This finding will be available on the Internet at http://www.regulations.gov at Docket Number FWS–R2–ES–2008–0059, and http://www.fws.gov/southwest. Supporting documentation used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Southwest Regional Office, 500 Gold Ave SW, Room 6034, Albuquerque, NM 87102. Please submit any new information, materials, comments, or questions concerning this finding to the above address.

The Endangered Species Act provides a critical safety net for America’s native fish, wildlife and plants. This landmark conservation law has prevented the extinction of hundreds of imperiled species across the nation and promoted the recovery of many others.

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. For more information on our work and the people who make it happen, visit www.fws.gov. Connect with our Facebook page at www.facebook.com/usfws, follow our tweets at www.twitter.com/usfwshq, watch our YouTube Channel at http://www.youtube.com/usfws and download photos from our Flickr page at http://www.flickr.com/photos/usfwshq.

More news from the Southwest...

Preliminary strategy for jaguar recovery is complete (press release, 4/19/2012)

Dec 092011
 

The D.C. Circuit Court of Appeals ruled today that the National Association of Home Builders did not have standing to pursue claims that the Environmental Protection Agency wrongly designated two reaches of the Santa Cruz River in Arizona as "traditional navigable waters" under the Clean Water Act (NAHB v. EPA, 10-5341, D.C. Cir.).

Santa Cruz River in 1904

The association could not establish that the TNW determinations did not realistically pose a threat to any of its members' livelihoods.

A declaration filed by Southern Arizona Home Builders Association President Jessica Whyde spoke of one member who is applying for a permit in the Santa Cruz watershed, but "does not explain . . . why the member’s decision to apply is directly traceable to the TNW Determination, which applies only to the two Santa Cruz reaches themselves and not to any other watercourse within the river’s watershed, including any watercourse that may be on the unidentified land belonging to the unidentified member.

"The declaration says nothing about the property, the watercourse affected by the landowner’s project or the greater likelihood of regulation, if any, after than before the TNW Determination," the court said.

The opinion was written by Circuit Judge Karen Le Craft Henderson; she was joined by fellow Judges Douglas Ginsburg and Brett Kavanaugh. Kavanaugh concurred with the opinion except for the portion (II.B.1) that said "without a jurisdictional determination (or enforcement action) based [on the TNW determination], an individual property remains unaffected by [it]."

"NAHB does not explain . . . how the TNW Determination adversely affects either the 'manner' of regulation or, with any specificity, the 'types of watercourses' subject to regulation," Henderson and Ginsburg said. Kavanaugh did not author a dissent.

Links: from NAHB, Corps' determination adopted by EPA.

Excerpts:

The court said it was not "swayed by NAHB’s assertion that its members now face 'the choice of applying for a permit for activities that are outside the scope of the agencies’ authority under the CWA or face significant civil or criminal enforcement penalties for failing to do so.'Appellants’ Br. 59."

These are the same statutory and regulatory alternatives NAHB members faced before the TNW Determination. Without an additional allegation that the TNW substantially increased the risk of regulation or enforcement relating to particular property, we have no basis to conclude the TNW caused a 'concrete and particularized' and 'actual or imminent' threat to any landowner, let alone any particular NAHB member. Lujan, 504 U.S. at 56

NAHB does not explain, however, how the TNW Determination adversely affects either the “manner” of regulation or, with any specificity, the “types of watercourses” subject to regulation. NAHB does not here contest “whether the Santa Cruz River itself may be subject to Clean Water Act jurisdiction—an issue that is not raised in this action.” Compl. ¶ 2. Yet this is the only issue the TNW Determination in fact resolved.

Unless and until such a jurisdictional determination applies the TNW Determination to particular property (and its watercourses) and finds a sufficient nexus—or the Agencies use the TNW Determination in an enforcement action against a party discharging without a permit—the owner or developer of the property suffers no incremental injury in fact from the TNW Determination and any challenge to it is therefore premature. In the meanwhile, NAHB members face only the possibility of regulation, as they did before the TNW Determination: Any watercourse on their property may (or may not) turn out to be subject to CWA dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.

Citing no authority, NAHB argues that the TNW Determination “foreclos[es] the issue of the nearest TNW for site-specific [jurisdictional determinations] within the watershed.” Appellants’ Br. 59. We see no reason, however, that an individual landowner or developer may not contest the TNW Determination in a challenge to a site-specific jurisdictional designation under the judicial review provisions of the CWA and implementing regulations.

Procedural standing

Finally, NAHB claims that even if it has not established a substantive injury to support its standing, it nonetheless has “procedural” standing to challenge the Agencies’ failure to provide notice and an opportunity to submit comments pursuant to the APA. See 5 U.S.C. § 553(b), (c). This argument fails as well and for the same reason—no imminent injury in fact has been alleged.

Nov 302011
 

The Fish and Wildlife Service's 12-month finding on bald eagles in Arizona was procedurally flawed, a federal judge ruled today.

Bald eagle (Photo by Mike Lockert, FWS)

(Editor's note: We initially reported that the judge found the delisting decision was "illegal," but it appears that for now, the eagle is still off the list in Arizona. As the judge said in his order, "Plaintiffs also ask the court to enjoin [FWS] from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand. Defendants [FWS] seek an opportunity to brief the propriety of injunctive relief before the court imposes such a remedy. The court will establish a short briefing schedule and resolve the issue of injunctive relief in the next several weeks.")

The judge directed the parties to submit briefs by Dec. 16 on the plaintiffs’ request that the court enjoin FWS "from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand."

A couple of quick excerpts from U.S. District Judge David G. Campbell's opinion:

"The Court will set aside the 12-month finding as an abuse of discretion and require FWS to complete a new 12-month finding. Because it does not appear that the status review process was procedurally flawed, the Court will not require FWS to start the process over again with notice and public comment. The Court instead will require FWS to complete a new 12-month finding based on information gathered and consultations completed during the status review conducted in response to Judge Murguia’s order. The Court expresses no view on the proper outcome of the new 12-month finding."

"This Court agrees that the 2007 delisting rule was not a valid status review for the desert eagle. FWS did not comply with the notice, comment, and consultation requirements established by statute and regulations for a status review and 12-month finding. See 16 U.S.C. § 1533(b)(3)(A), (B); 50 C.F.R. § 424.14(b)(3), 15(a) & (c). As a result, the 2007 delisting rule should not have become FWS’s de facto decision on the DPS issue, to be departed from only for compelling reasons. An invalid status review should not trump a valid status review. Findings reached without appropriate notice, comment, and consultation should not become an agency’s presumptive decision. Such a procedure flies in the face of the notice, comment, and consultations requirements of the law."

Desert bald eagle suit dismissed

 Posted by on October 1, 2010
Oct 012010
 

Editor's note: Arizona Republic coverage here This population of bald eagles lives in Arizona

A federal judge has dissolved an injunction that has kept bald eagles in Arizona on the threatened species list  (Center for Biological Diversity v. Salazar, 07-38-PHX-MHM, D. Ariz.).

U.S. District Judge Mary Murguia also dismissed a motion by plaintiffs to file a supplemental complaint challenging the Fish and Wildlife Service's 12-month finding, which concluded the eagle in Arizona was not a listable entity.

CBD's Robin Silver said CBD "will file a new lawsuit for a new injunction on Monday."

CBD and the Maricopa Audubon Society will still be before Murguia, however. The judge said she wasn't going to allow another jurist to take over any future litigation on the eagle.

Any new case filed by plaintiffs will be substantively similar to its challenge of the 90-day finding, involving similar parties, facts, science, law, and argument," Murguia said. "Because of the court['s] familiarity with the parties, facts, science, law, and argument, the goal of judicial economy would be served by ensuring that the undersigned presides over any future action brought by plaintiffs concerning the 12-month finding.

In other words -- CBD, bald eagle, FWS -- I've got you and I'm not letting you go.

CBD had challenged the Fish and Wildlife Service's negative 90-day finding on its petition to determine that the eagles that nest in Arizona are a listable entity that should be protected under the ESA.

Murguia initially ruled (see below for 2008 order) that the 90-day finding was arbitrary and capricious and told FWS to conduct a status review and issue a 12-month finding. Not unexpectedly, the 12-month finding (issued in February) also came back negative.

"The FWS has reached an outcome, it is just not the one for which plaintiffs had hoped," Murguia noted.

She said CBD had put too much stock in her initial order of two years ago:

In ordering injunctive relief, the Court’s primary concern was maintaining the status quo. Had the FWS properly issued a positive 90-day finding, it would not have been able to de-list the Desert bald eagle until it had conducted a status review and issued a 12-month finding. The FWS ability to de-list the eagle at that time, however, would not have been conditioned on judicial review of the 12-month finding. Thus, the Court made the statement that it was “not willing to risk the continued vitality of the Desert bald eagle pending the FWS’s lawful determination of whether listing the Desert eagle as a DPS is warranted,” (Doc. 53, p. 24), only to convey the importance of maintaining the status quo until such time as the status review and 12-month finding had been completed. In other words, the Court did not find it equitable that the Desert bald eagle should be subjected to possible harm pending the FWS completion of steps it should lawfully have taken before attempting to de-list the Desert bald eagle.
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