Wolves in Wyoming back on the list

 Posted by on September 24, 2014
Sep 242014
 

Gray wolves in Wyoming are back on the endangered species list after a federal judge in Washington, D.C., said the Fish and Wildlife Service could not "rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves" (Defenders of Wildlife v. Jewell, 12-1833 ABJ, D.D.C.).

U.S. District Judge Amy Berman Jackson's opinion

Said Jackson:

"This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that."

Earthjustice, et al. press release on decision

More coming on this story...

Excerpts from opinion:

Since the decision to delist is expressly premised on the state’s intention to manage to maintain a buffer above 10/100, the next question for the Court to resolve is whether it was proper for FWS to rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves.

In this case, the agency did not merely consider the nonbinding statements in the Addendum as one aspect of the state’s overall regulatory scheme: two out of five of the original peer reviewers found the regulatory mechanisms to be inadequate in the absence of a buffer, and the Addendum was submitted by the state in response. The record reflects that FWS specifically relied on the representations in the Addendum as the basis for its conclusion that Wyoming would do what the agency had determined that it must do: manage above the 10/100 minimum. The Court finds that under those circumstances, the reliance on mere assurances was inappropriate, and it rendered the FWS decision arbitrary and capricious. This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that. See Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 207–08 (D.D.C. 2012) (“while the FWS cannot rely on promised and unenforceable conservation agreements in evaluating regulatory mechanisms . . . its consideration of the Conservation Strategy as part of its overall assessment of ongoing management practices is not inappropriate.”). Accordingly, the Court holds that the Service’s determination that Wyoming’s regulatory scheme was adequate under the ESA was arbitrary and capricious.

Footnote 8: In Greater Yellowstone Coalition, Inc., v. Servheen, 665 F. 3d 1015, 1030–31 (9th. Cir. 2011), the plaintiffs raised concerns similar to those here that the Service had relied upon too many measures that were not legally binding when delisting the grizzly bear. But the court declined to reach the question of whether a voluntary, unenforceable measure could constitute a “regulatory mechanism” under §1533(a)(1)(D); instead it ruled that even if the Service’s consideration of the voluntary and unenforceable components of the multi-state conservation plan was error, the determination could be upheld based upon legally binding components alone. That option is not available here since the delisting decision depends expressly upon the state’s commitment to manage above the 10/100 minimum number.

Links

Wyoming wolf delisting challenged in federal court (EJ release, 12/17/13)

FWS gray wolf page

Service Declares Wyoming Gray Wolf Recovered Under the ESA and Returns Management Authority to the State (8/31/2012)

Oct 172012
 

A federal judge has upheld a Fish and Wildlife Service decision not to list the Colorado River cutthroat trout as threatened or endangered under the ESA (Colorado River Cutthroat Trout v. Salazar, 09-2233 PLF, D.D.C.).

U.S. District Judge Paul Friedman said FWS did not act in an "arbitrary and capricious" manner in interpreting the law's requirement to consider whether a species is "in danger of extinction throughout all or a significant portion of its range" (the standard for an endangered species) or likely to get to that state "in the foreseeable future" (the standard for a species considered threatened).

Opinion: www.eswr.com/docs/cts/dc/CRCT_dcd_op_10162012.pdf

Colorado River cutthroat trout (image from Ute Tribe web site)

Excerpt:

b. Failure to Consider Unoccupied Portions of the Trout’s Current Range

Even if “range” is restricted to the Trout’s current range of 3,022 miles, plaintiffs take issue with the FWS’s conclusion that the Trout are not threatened within a “significant portion” of this area. Where a species or  subspecies is unlikely to survive in a sizeable portion of its current habitat, the agency must provide some explanation as to why this portion is not “a significant portion of its range[.]” Defenders of Wildlife v. Norton, 239 F. Supp. 2d at 21 (citing Defenders of Wildlife v. Norton, 258 F.3d at 1145); see Southwest Center for Biological Diversity v. Norton, 98-cv-0934 (D.D.C. May 24, 2004) (instructing FWS to reconsider and explain whether an island constituting one-third of species’ range was “significant”). Plaintiffs point to the 1,226 miles throughout the current range that lack populations of genetically pure (or close-to-pure) Trout and argue that the FWS “failed to evaluate the significance of the fact that almost half of its remaining range is unoccupied.” Pls.’ Mot. Summ. at 1.

Although the FWS did not state explicitly that it found these 1,226 miles not to be a “significant portion” of the range, the FWS clearly articulated how it evaluated significance throughout the Finding and in a subsection entitled “significant portion of the range”. The FWS explained that it had identified fish populations that met a 90 percent threshold of Trout genetic

[Page 16]

content, such that the populations were unquestionably Trout on a genetic and morphological le el. Not Warranted Finding, 72 Fed. Reg. at 32,591.[4] The 285 Trout populations that met this standard were considered “Conservation Populations”. Id.[5] The FWS then evaluated the threats facing these Conservation Populations in each of the eight major watershed-based regions within the range, otherwise known as Geographical Management Units, or “GMUs”. Finding that at least some number of Conservation Populations were likely to survive in each GMU, the agency concluded that the Trout was not endangered or threatened within “a significant portion of the range[.]” Id. at 32,600.

Each GMU contains large areas – in the aggregate, approximately 1,226 miles or 41 percent of the total range – occupied by cutthroat trout sport fish populations. These sport fish populations have the morphological characteristics of the Trout, but they generally contain greater than 10 percent genetic material from other subspecies. Not Warranted Finding, 72 Fed. Reg. at 32,591. The FWS noted that several state agencies include these sport fish populations in their conservation and management plans for the Trout. Id. at 32,598. Because of their relatively high level of nonnative genetic material, however, the FWS does not consider the sport fish populations to be predictive of the survival of the Trout in its genetically pure form. Id. (“Sport fish populations . . . conform morphologically . . . to the scientific taxonomic description of [the Trout], but do not meet the additional criteria of “conservation” or “core” populations and hence

FN 4 Morphology “refers to the general aspects of biological form and arrangement of the parts of a plant or an animal.” Encyclopoedia Britannica Online Academic Edition. (Oct. 12, 2012), http://www.britannica.com/EBchecked/topic/392797/morphology.

FN 5 A subset of Conservation Populations were “Core Conservation Populations”, which had greater than 99 percent Trout genes.

[Page 17]

are managed for their value as a sport fish population rather than their value to the conservation of the subspecies.”).

Plaintiffs argue that the FWS failed to explain why these regions containing sport fish populations do not constitute “a significant portion of its range[.]” The Court agrees that the FWS was often unclear as to whether it considered these sport fish populations to constitute Trout at all.[6] It is established, however, that a court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” as it may be here. Building Industry Assn of Superior Cal. v. Babbitt, 979 F. Supp. 893, 898 (D.D.C. 1997) (citing Motor Vehicles Mfrs. Assn v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983)). This Court finds that the FWS’s explicit discussion of how it evaluated significance, accompanied by its explanation of those areas of the range occupied by Trout sport fish populations, renders discernible the FWS’s reasoning with respect to its evaluation of a significant portion of the Trout’s range.

Plaintiffs also allege that the FWS failed to explain adequately its use of “GMUs” as the analytic tool for determining whether the Trout is threatened in a significant portion of its range. Pls.’ Mot. Summ. at 21. The FWS, however, provided a reasonable basis for its selected methodology, explaining that the eight GMUs correspond to the major watersheds within the range, and that “standardized fish monitoring methods are watershed based.” Not Warranted Finding, 72 Fed. Reg. at 32,600; see also id. at 32,593 (noting that under Wyoming agency plan, biologists manipulate habitat on a watershed scale). The FWS noted that the eight GMUs encompass the entire current and historical range, and Conservation Populations are located in

FN 6 Defendants concede that the inclusion of sport fish populations in the current range leads to analytic confusion when evaluating Trout sustainability within the range. See Defs.’ Reply Mot. at 12.

[Page 18]

every GMU. Id. at 32,600. The FWS also explained that “[n]o significant ecological differences exist at levels smaller than the GMUs to affect representation of the subspecies.” Id. The FWS concluded that a sufficient number of GMUs existed in order to ensure Trout redundancy and resiliency. Id. Although the plaintiffs raise plausible criticisms of the methodology chosen by the FWS, an agency’s choice of methodology need only be reasonable to be upheld. See Nat’l Envtl. Dev. Assn’s Clean Air Project v. E.P.A., 686 F.3d 803, 810 (D.C. Cir. 2012) (“[W]e do not look at the decisions as would a scientist, but ‘as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.’”). This Court concludes that the FWS’s use of GMUs, and its explanation for their use, pass this test.

2. Failure to Address Threats in Combination

Under its regulations, the FWS must consider threats posed by “any one or a combination” of the five factors listed in the ESA. 16 U.S.C. § 1533(a)(1)(A)-(E); see 50 C.F.R. § 424.11(c); Carlton v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. 1995). These factors are:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1).

[Page 19]

Plaintiffs claim that the FWS violated the ESA’s requirement to consider the listing factors in combination. Indeed, in most of its Finding, the FWS considers each of the listing factors one by one and determines that the threats do not rise to the level requiring listing. See, e.g., Not Warranted Finding, 72 Fed. Reg. at 32,594 (“[W]e conclude . . . that present or threatened destruction, modification, or curtailment of habitat or range has not affected the status of [Trout] to the extent that listing under the Act as a threatened or endangered species is warranted at this time.”); id. at 32,594 (“[I]t does not appear that predation affects the status of [the Trout] to the extent that listing under the Act as threatened or endangered is warranted at this time.”); id. at 32,596 (“[W]e conclude . . . that any identified inadequacies of existing regulatory mechanisms have not affected the status of [the Trout] to the extent that listing under the Act as a threatened or endangered species is warranted.”). Plaintiffs assert that the Finding resembles the finding vacated and remanded by Judge Kollar-Kotelly in WildEarth Guardians v. Salazar,741 F. Supp. 2d at 102, because, as in that case, the finding here does not “explicitly indicate that [the FWS] analyzed the listing factors’ cumulative effect.” Pls.’ Mot. Summ. at 28-29. Defendants maintain, by contrast, that in this case the FWS did in fact consider threats in combination, but did so in its discussion of the individual factors, rather than in a separate cumulative effects section. Defs.’ Mot. Summ. at 31-32.

The FWS’s analysis of how the listing factors interact is cited throughout the Finding in a somewhat haphazard fashion, but the analysis of how they combine together nevertheless is apparent. For example, under the subsection discussing Factor E (other natural or manmade factors affecting the Trout’s continued existence), the FWS considered a general population health evaluation for each Conservation Population. Not Warranted Finding, 72 Fed.

[Page 20]

Reg. at 32,596-97. This population health evaluation considered population size, temporal variability, population connectivity and production potential, which was based on estimates of habitat quality, presence of nonnative fishes, disease, and land-use impacts[.]” Id.; see also Christine L. Hirsch, Shannon E. Albeke, and Thomas P. Nesler, Range-Wide Status of Colorado River Cutthroat Trout (March 2006) (“2006 Range-Wide Status Report” or “Report”), A.R. at 1429 (discussing formulation of population health evaluation). This metric thus considers Factor A (present or threatened destruction of habitat or range) in combination with Factor C (disease or predation) and Factor E (other factors, such as connectivity issues). In addition, the FWS considered the interaction of habitat fragmentation (Factor A) with the exchange of genetic information (Factor E). 72 Fed. Reg. at 32,596. The FWS also discussed how the Trout’s widespread populations (Factor A) are more vulnerable to threats like fire, flood, and drought (Factor E), as well as how this fragmentation protects the Trout from such threats as disease and overfishing (Factors B and C). 72 Fed. Reg. at 32,593-94, 32,596.

The FWS certainly could have been more explicit in articulating the manner in which it considered how factors might combine together to intensify or mitigate threats to the Trout by outlining its analysis of combined effects in a separate section. Nevertheless, the agency’s reasoning can be reasonably discerned here. See Building Industry Assn of Superior Cal. v. Babbitt, 979 F. Supp. at 898. The FWS’s findings – particularly those relating to the
general population health evaluations – adequately demonstrate a consideration of the listing factors in combination, and therefore must be upheld.

[Page 21]

3. Failure to Address Climate Change Effects

Plaintiffs contend that the FWS should have considered the impact of climate change in its assessment. Plaintiffs argue that “climate change will cause significant additional reductions in suitable habitat and will especially impact the majority of the Conservation Populations because of their small size.” Pls.’ Mot. Summ. at 30.

Although the ESA does not expressly require consideration of climate change effects, it does direct the agency to address “natural or manmade factors affecting [a species’] continued existence.” 16 U.S.C. § 1533(a)(1)(E). As scientific assessments increasingly incorporate in-depth analyses of climate change effects, explicit consideration of climate change-related threats may become a necessary component of the status review. The record in this case, however, contains only occasional references to climate change-related threats. There is no statutory requirement that the FWS discuss climate change in its listing decisions, and the Court is reluctant to impose a judicially-created requirement where, as here, climate change is not discussed at length in the record, where the issue was not raised by plaintiffs in their comments to the FWS, and where the record is ambivalent as to its effects. Compare 2006 Range-Wide Status Report at 16 (“If global climate change results in shrinkage of [Trout] habitat to higher elevations . . . there may be opportunity to establish new self-sustaining populations in lakes and streams that were previously too cold for trout recruitment”), with M.K. Young, Colorado River Cutthroat Trout: A Technical Conservation Assessment (2006), A.R. at 9397 (describing climate change as “greatest future threat to the persistence of this species” because of effects on stream movement).

Despite plaintiffs’ contentions, however, the FWS also provided an adequate analysis of the Trout’s historic range and discussed why the historic contraction of its range does not render the
Trout vulnerable in any significant portion of its currently occupied habitat. 72 Fed. Reg. at 32,590. Although the Trout’s current distribution is “approximately 14 percent of probable
historically occupied stream miles” the FWS explained that the Trout are well-distributed throughout this area. Id. The FWS further explained that the loss in population over the last 200
years occurred primarily in the late nineteenth and early twentieth centuries, as a result of nonnative sport fish stocking. Id. at 32,597-99. The FWS did not find evidence of recent
declines in the overall distribution or abundance of the Trout, but rather found evidence that the number of known populations is increasing. Id. at 32,599. Plaintiffs argue that the FWS may not

[Page 15]

simply “point to one area or class of areas where [Trout] populations persist to support a finding that threats to the species elsewhere are not significant; the ESA requires a more thorough explanation.” Pls’ Mot. Summ. at 17 (quoting Tucson Herpetological Soc’y v. Salazar, 566 F.3d at 876). This Court concludes, however, that the FWS, in analyzing the distribution of the
Trout’s current range, identifying recent population trends, and detailing the cessation of the primary cause of past reduction, has provided that more thorough explanation.

Despite plaintiffs’ contentions, however, the FWS also provided an adequate analysis of the Trout’s historic range and discussed why the historic contraction of its range does not render the
Trout vulnerable in any significant portion of its currently occupied habitat. 72 Fed. Reg. at 32,590. Although the Trout’s current distribution is “approximately 14 percent of probable historically occupied stream miles” the FWS explained that the Trout are well-distributed throughout this area. Id. The FWS further explained that the loss in population over the last 200 years occurred primarily in the late nineteenth and early twentieth centuries, as a result of nonnative sport fish stocking. Id. at 32,597-99. The FWS did not find evidence of recent declines in the overall distribution or abundance of the Trout, but rather found evidence that the number of known populations is increasing. Id. at 32,599. Plaintiffs argue that the FWS may not simply “point to one area or class of areas where [Trout] populations persist to support a finding that threats to the species elsewhere are not significant; the ESA requires a more thorough explanation.” Pls’ Mot. Summ. at 17 (quoting Tucson Herpetological Soc’y v. Salazar, 566 F.3d at 876). This Court concludes, however, that the FWS, in analyzing the distribution of the Trout’s current range, identifying recent population trends, and detailing the cessation of the primary cause of past reduction, has provided that more thorough explanation.

The Court acknowledges this tension but finds that the Ninth Circuit’s approach provides an instructive way to address it. In Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th  Cir. 2001), the Ninth Circuit examined the Secretary of the Interior’s decision not to designate the flat-tailed horned lizard as threatened under the ESA, despite a loss of 34 percent of the lizard’s historic range over the twentieth century. Id. at 1141. The court did not rule on whether “range” should be equivalent to historic range or current range, nor did it lay out a definition for the term “significant”. It did find, however, that the FWS was required to explain its reasons for finding that the lost range was not significant: (read entire opinion here)

Sep 102012
 

The same day the final rule delisting wolves in Wyoming appeared in the Federal Register, four environmental groups said they will sue the Fish and Wildlife Service over the decision, annonced last week.

Earthjustice, representing Defenders of Wildlife, Center for Biological Diversity, Natural Resources Defense Council and Sierra Club, sent a 60-day Notice of Intent to Sue to Interior Secretary Ken Salazar and FWS Director Dan Ashe.

"Wyoming’s wolf management policies open the door to unlimited wolf killing throughout most of the state and provide inadequate protection for wolves even where killing is regulated," a news release issued today says.

Links

NOITS posted on ESWR's page

Delisting rule in FR

Earthjustice page with wolf links

Aug 162012
 

OK, our original headline was a bit ahead of its time. I blame CBD for announcing it had "launched federal litigation today." Well, it began the process, and given past history, it's likely they will follow through.

The Center for Biological Diversity served notice of a large legal challenge, sending the Army Corps of Engineers a 60-day notice of intent to sue over the nationwide permit program.

According to the center's press release, "In a formal notice of intent to sue filed today under the Endangered Species Act, the Center informed the Corps that it has failed to structure its nationwide permit program to ensure that it will not threaten endangered species and their habitats around the country."

"The Center’s legal notice echoes concerns from the National Marine Fisheries Service’s 2012 report [its Biological Opinion on the reissuance of the NWPs] that found the Corps has failed to ensure its nationwide permit program does not jeopardize a host of endangered species, including salmon and a number of other fish species, sea turtles, corals, whales and other marine mammals; many species under the jurisdiction of the U.S. Fish and Wildlife Service are also of concern — conservancy fairy shrimp, plants like the Howell’s spectacular thelypody and Suisun thistle, Salt Creek tiger beetles, red wolves and Florida panthers, for instance."

Links

  • August 16, 2012 – New Study: Citizens Play Crucial Role in Identifying Species That Need Endangered Species Act Protection
  • August 16, 2012 – Government Urged to Conduct New Review of Arctic Drilling After Coral Discovery in Shell's Drill Zone
  • August 15, 2012 – Endangered Species Act Protection Proposed for Six West Texas Invertebrate Species
  • August 14, 2012 – Industry Lawsuit Attacks Science, Sustainability on National Forests
  • August 14, 2012 – Northeast Mountain Songbird Threatened by Climate Change Moves Closer to Federal Protection
  • August 14, 2012 – Twenty-four Conservation Groups Call on President Obama to Maintain Federal Protections for Wolves in Pacific Northwest
  • August 13, 2012 – Endangered Species Act Protection Sought for Great White Sharks off West Coast
  • August 9, 2012 – Feds to Shoot Endangered Mexican Wolf
  • August 8, 2012 – California Department of Fish and Game Approves Petition to Protect Gray Wolves Under California Endangered Species Act
  • August 7, 2012 – Two Southern Arizona Plants Move Toward Endangered Species Act Protection

Text of release

Jun 192012
 

Today's House Natural Resources Committee, meeting in Room 1324 of the Longworth House Office Building, held the latest in what has turned into a multi-year series of hearings on the federal government's payment of attorney fees to plaintiffs bringing Endangered Species Act lawsuits.

In the committee's telling, virtually all of those taxpayer dollars have gone to environmental groups, which are staffed largely by people who have enough money of their own to afford the low wages. They then use those fees to fund even more lawsuits against the Fish and Wildlife Service, and occasionally even against the National Marine Fisheries Service, though NMFS was mentioned sparingly during the hearing.

I felt as if I had seen this show before.  That's probably because I had, and I'll ferret out the links to those long-ago hearings as quickly as you can say "Google me," or perhaps "GPO me," the meaning of which I'd rather not speculate on right now. GPO's website contains a trove of transcripts, so I have no doubt I'll find corroborating evidence that this subject has been explored at length -- even, as the lawyers might say, ad nauseam.

In the meantime, there's a hearing to cover. If you want to watch it, click on the Twitter image below. Our preview of the hearing, which includes a link to attorney fee data obtained by the committee in May, is here.

Also, the obligatory Twitter link. (Incidentally, I think 140 characters is a bit parsimonious. 160 would be just about right.)

Hastings called attorneys for conservation groups "an army of environmental lawyers" who are diverting attention and funding from species recovery.

"Over $21 million has been paid out in attorney fees in recent years," Hastings said, adding that "two lawyers received more than $2 million each."

The chairman of the committee mentioned the Center for Biological Diversity and Wild Earth Guardians by name, alleging that the latter organization received 34 percent of its revenue from attorney fees in 2010.

Apparently it does "pay to play," he said.

[Addition: The Center disputed Hastings' numbers. CBD's full statement is pasted below, but the gist is this: Instead of more than $2 million, the Center in fact collected $553,000 in 2009, or "about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures." CBD called on Hastings to correct the information. Hastings swiftly responded, ]

In his response, Rep. Edward Markey (D-Mass.) defended the practice of using citizen suits to hold the government accountable. But he began by attacking House Republicans.

"Today, on the House floor, Republicans are pursuing their great American giveaway: two omnibus bills would hand out millions of acres of land to oil and gas companies, hand-pick old-growth forests for logging interests and trample on the rights of Americans working, living of traveling within 100 miles of our borders."

"They're attacking the ability of citizens to bring suits against the federal government when it fails to follow the law."

Markey delivered a riposte to the committee's May analysis, which found $13 million had been spent on fees in ESA cases since 2009. Last year, Republicans proposed cutting the endangered species program by $72 million.

Markey said the cost of losing ESA cases represents two-tenths of 1 percent of all fees paid ($8.7 billion) from the Treasury Department's Judgment Fund since 2009.

In 2006, the Bush Administration paid out $18.7 million in one telecommunications case lost by the government, Markey said.

Markey noted that funds coming from the Judgment Fund don't count against the agencies' own budgets.

-30-

CBD statement

For Immediate Release, June 27, 2012

Contact:        Bill Snape, (202) 536-9351

Hastings Relies on False Information in Attacks on Endangered Species Cases

WASHINGTON, D.C.— The Center for Biological Diversity today called on Rep. Doc Hastings (R-Wash.) to correct false information about attorney fees collected in cases involving the Endangered Species Act. A June 19 statement posted on the House Natural Resources Committee’s website incorrectly claims that U.S. Department of Justice documents showed the Center had collected more than $2 million in attorney fees from fiscal year 2009 to present. In fact, the amount the Center received was $553,000 — about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures.

In his latest attack on the Endangered Species Act, Hastings is trying to claim that environmental groups are getting rich from lawsuits designed to protect our most imperiled plants and animals from extinction.

“The government’s own figures simply don’t bear out the tired, debunked story that Representative Hastings is peddling,” said Bill Snape, senior counsel with the Center. “In this case, Hastings’ calculations are just plain wrong. If we’re going to have a real discussion about the best way to save endangered species, it has to be based on facts.”

Hastings, the chairman of the House Natural Resources Committee, requested attorney fees figures from the Department of Justice for Endangered Species Act cases from fiscal year 2009 to present. The Justice Department documents show 24 payments to the Center during those years, for a total of $552,897. The typical fee was less than $20,000, often for work on cases that stretched over several years. Many of the cases originated during the Bush administration, which the Interior Department’s own inspector general found was guilty of political interference in forcing science-based decisions to be overturned by Republican appointees.

Among the cases the Center worked on during that period:

historic agreement to speed up protection decisions on 757 of the country’s most imperiled but least protected plants and animals;

  • Restoring critical habitat protection for species that had it curtailed due to political meddling by the Bush administration;
  • Winning a court order requiring the Fish and Wildlife Service to begin planning for the recovery of the jaguar, one of the most imperiled mammals in North America.

Importantly, the figures from Justice also show that industry groups collected a similar amount in attorney fees (about $550,000) during that same time period in lawsuits opposing Endangered Species Act protections.

“We go to court when the government fails to follow its own laws, meant to protect plants and animals from extinction,” Snape said. “When we prevail — that is, when a judge agrees the government must be held accountable — we’re eligible for attorney fees, at less than fair-market value. To inflate these numbers reeks of a cynical political ploy to gin up another misleading talking point. Unfortunately, it’s consistent with Chairman Hastings’ past rhetoric, which conveniently downplays the success of endangered species recovery efforts.”

The Center sent Hastings a letter today asking him to correct the errors on the House committee’s website.

Hastings' response

DOJ Documents Confirm Center for Biological Diversity Received Millions in Taxpayer Funds from ESA-Related Lawsuits

WASHINGTON, D.C., June 27, 2012 - The Center for Biological Diversity today sent a letter to House Natural Resources Committee Chairman Doc Hastings claiming their organization had only received $553,000 in taxpayer funds resulting from Endangered Species Act (ESA) related attorney fees and court cases. This claim conflicts with data obtained from the Department of Justice (DOJ), which shows over $2 million in taxpayer dollars have been paid out to the Center for Biological Diversity and their attorneys for cases open between 2009-2012.The Center for Biological Diversity appears to have derived their erroneous number by including only checks made out directly to the Center for Biological Diversity over a select period of years. Attorney fees are typically paid out to the attorney of record. The Center for Biological Diversity is conveniently failing to include the majority of funds that were paid directly to their hired lawyers. Nine of the lawyers who have received payouts are currently employed by the Center for Biological Diversity.

“American taxpayers have a right to know how much of their money is going to pay attorneys and settlement costs for lawsuit-happy organizations that make a living off of suing the federal government. The numbers from the Justice Department speak for themselves,” said Chairman Hastings“One frequent collector of taxpayer dollars spent a week inventing a way to misconstrue and hide data to make it appear as though they haven’t received millions in taxpayer dollars. The most direct way to have openness and transparency on exactly what funds a group has taken from taxpayers in ESA-related settlement and attorney fees is for them to publicly reveal all of their data for the past two decades.”

On March 19, 2012, Chairman Hastings sent a letter to the Environment and Natural Resources Division of the Department of Justice asking for detailed information on how much taxpayer money is being spent on ESA-related litigation and settlements. In response to this request, DOJ ran a search through their Case Management System (“CMS”) and provided the Committee information based on all cases where the ESA was one of the statutes at issue in the litigation.

According to this document from the DOJ containing 276 pages of case information, the Center for Biological Diversity was involved in over 50 individual cases, open between 2009 and 2012, where they were the lead plaintiff. The amount of attorney fees and court costs associated with these cases is $2,286,686.91. Of this amount, $138,114.45 was in court costs and $2,148,572.46 was in attorney fees.

These five examples alone of court cases filed by the Center for Biological Diversity where CBD received attorney fee payments between 2009-2012 far exceeds the $553,00 that the Center for Biological Diversity claims to have received:

  • Center for Biological Diversity v. Environmental Protection Agency, et. al. in California; paid $172,000 on November 22, 2010 to attorney for CBD Justin Augustine.
  • Center for Biological Diversity et. al., v. U.S. Army Corps of Engineers in Montana; paid $165,000 on March 23, 2009 to attorney for CBD Geoff Hickox.
  • Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $159,044 on February 9, 2012 to attorney for CBD Melanie Kay.
  • Center for Biological Diversity v. U.S. Fish and Wildlife Service in Arizona; paid $95,000 on April 23, 2010 to attorney for CBD Geoff Hickox.
  • Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $51,866 on August 13, 2009 to attorney for CBD John T. Buse.

###

Printable PDF of this document

Contact: Jill Strait, Spencer Pederson or Crystal Feldman 202-226-9019

Sharp Park case moves forward

 Posted by on April 27, 2012
Apr 272012
 

A lawsuit challenging operations at a golf course owned by the city of San Francisco will proceed, U.S. District Judge Susan Illston ruled yesterday (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

Illston, who had previously denied a request for an injunction to halt park activities, stayed the case while the city consults with the Fish and Wildlife Service on activities that could harm the two federally listed species that occupy the park -- the threatened California red-legged frog and endangered San Francisco garter snake.

Illston said there is some question as to whether the frog population is growing, as asserted by the city.

New evidence and recent FWS activity have called into question the growth of the frog population at Sharp Park. In its denial of a preliminary injunction, the Court relied heavily on the City’s ability to carefully move the stranded egg masses. See Order at 14-15. The Court noted that during the winter of 2010-11, the City found 159 egg masses; it then requested and received permission to move 128 of them. See Order at 8 (citing Campo Dep. at 104)). However, the FWS has since revoked the City’s authorization to move the stranded egg masses. See Crystal Decl., Ex. 1 (Dec. 8, 2001 FWS letter). It is unclear what effect the revocation will have on the Frog’s population.

Plaintiffs have also pointed to testimony that calls into question whether the Frog population is increasing. They cite defendants’ expert Lisa Wayne, Sharp Park’s Natural Areas Program Manager, who testified at deposition that she could not say whether the population trend of the Frog at Sharp Park was increasing or decreasing, and that while the 2010-2011 rainy season was the highest she had seen, the egg mass population fluctuates from year to year. Wayne Dep. at 249:15-250:9. Plaintiffs also provide a new declaration from their expert, Dr. Marc Hayes, one of the scientists to originally petition the FWS to list the Frog. See Emery Decl., Ex. B (Hayes Rep. III)). Dr. Hayes now states that rather than increasing, recent analysis shows that egg mass numbers at Horse Stable Pond are merely stable. Id. at ¶ 62. The Court finds that the City has not established that there is no genuine issue as to the growth of the Frog population.

Illston did not rule on the merits of the plaintiffs' complaint. Instead, she found that they had standing to pursue their claim and stayed the matter until October, by which time consultation with FWS should be complete.

The environmental groups' press release is pasted below the links.

Here's the release issued by the environmental groups:

For Immediate Release, April 26, 2012

Contact: Brent Plater, Wild Equity Institute, (415) 572-6989
Jeff Miller, Center for Biological Diversity, (415) 669-7357
Arthur Feinstein, Sierra Club, (415) 680-0643
Neal Desai, National Parks Conservation Association, (510) 368-0845

Judge Cites Evidence Sharp Park Golf Course Is Harming Endangered Frogs,
Awaits U.S. Fish and Wildlife Service Input

Order Discusses Harm, Population Impacts to Red-legged Frogs

SAN FRANCISCO — U.S. District Judge Susan Illston today rejected the City of San Francisco’s attempt to dismiss a lawsuit filed by six conservation organizations over the ongoing killing of red-legged frogs at Sharp Park Golf Course. Explaining that new evidence and recent Fish and Wildlife Service restrictions have called into question San Francisco Park Department claims that the frog population at Sharp Park is growing, the court ordered the city to obtain authorization from the Fish and Wildlife Service for golf course activities that could harm endangered species. The judge ruled conservation groups have legal standing to bring the case, but stayed the lawsuit until October, when San Francisco could face a court trial over Endangered Species Act violations if it does not obtain a federal permit.

“The court’s ruling lays bare the damage golf course activities such as draining water from wetlands exacts on two of the Bay Area’s most imperiled animals,” said Brent Plater, executive director of the Wild Equity Institute. “We expect the Fish and Wildlife Service to require that the golf course cease killing endangered species and propose a comprehensive mitigation and restoration plan as part of any permit.”

The Park Department argued that draining aquatic feeding and breeding habitats for the California red-legged frog and San Francisco garter snake at Sharp Park Golf Course somehow benefits the species. In rejecting these assertions, the court cited contradictory testimony from the city’s own experts and staff that the golf course activities harm and kill protected wildlife.

“The endangered species permit process will weigh the biological impacts of excessive water pumping and habitat destruction to protect one golf course,” said Jeff Miller of the Center for Biological Diversity. “The permit should force the Park Department to change golf course operations to actually protect imperiled frogs and snakes.”

The Park Department has killed endangered frogs six of the past 10 winters, and its so-called “compliance plan” for endangered species has been a complete failure. In February, the department was caught again killing threatened red-legged frogs at the course, draining Sharp Park’s wetlands in a failed attempt to prevent frogs from breeding in their historic ponds.

The Washington, D.C. public-interest law firm Meyer, Glitzenstein & Crystal represents the coalition of conservation groups in the lawsuit.

Background

The Fish and Wildlife Service last year notified the golf course that it was specifically prohibited from handling or moving frog egg masses at Sharp Park and must obtain a permit for any golf course activities affecting protected species. The Service also denied the Park Department’s request to drain wetlands and dredge lagoons at Sharp Park, cynically referred to by the city as “habitat management and scientific studies.” Water pumping, dredging and other activities harmful to frogs can only occur if the department obtains a federal “incidental take” permit with an accompanying conservation plan.

The city-owned golf course at 400-acre Sharp Park in Pacifica is plagued by crumbling infrastructure, annual flooding problems and ongoing environmental violations. More than three-dozen San Francisco community, recreation, environmental and social-justice groups have called for closing the golf course and creating a more sustainable public park at Sharp Park. A 2011 peer-reviewed scientific study by independent scientists and coastal experts concluded that the most cost-effective option for Sharp Park is to remove the golf course and restore the functions of the original natural ecosystem, which will also provide the most benefit to endangered species.

The Park Department has refused to consider this option, and is instead pursuing a plan that would evict endangered species from the site and bail out the golf course’s financial problems with tens of millions of dollars of taxpayer money. The San Francisco Board of Supervisors passed legislation in December 2011 to prevent this from happening, but Mayor Ed Lee, an avid golfer, vetoed the legislation. Further action by the board is expected this year.

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)

Apr 192012
 

Activities outside the range of the polar bear, including emissions of greenhouse gases, won't be considered in determining the "take" of the bears under the Endangered Species Act, if a Fish and Wildlife Service proposal published April 19 becomes final.

"None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear," the proposed regulatory language says

Here's the explanation of that paragraph (Paragraph 4) in the proposal, which summarizes the service's thinking:

[W]e find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear's range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be unaffected by Alternative 2 for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear (including some areas within the State of Alaska) would be consistent with the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.

Environmental groups expressed their displeasure with the proposal.

"The proposed rule severely undermines protection for polar bears by exempting from portions of the Endangered Species Act all activities that occur outside of the bears’ range. But the species is endangered precisely because of activities occurring outside the Arctic — namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice," the Center for Biological Diversity said in a news release (linked above).

Apr 112012
 

The woeful record of this site in recording the addition of species to the threatened and endangered species list should not prevent us from noting a new member from Florida. Twelve years after it received a petition, the Fish and Wildlife Service placed the Miami blue butterfly on the list of endangered species.

The butterfly was emergency-listed in August -- Aug. 10, 2011, to be precise -- but that protection expired April 4, the day before the final listing was announced. The rule was published in the Federal Register April 6.

In addition, FWS designated as threatened, due to similarity of appearance to the Miami blue, the cassius blue butterfly (Leptotes cassius theonus), ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and nickerbean blue butterfly (Cyclargus ammon).

Those species were listed "in portions of their ranges," FWS said.

Nabokov was right on taxonomy

Nabokov and friend

Here's an interesting tidbit from the final rule on the species' genetic makeup that supports novelist and lepidopterist Vladimir Nabokov's view on the proper genus for the Miami blue:

Although some authors continue to use Hemiargus, Nabokov (1945, p. 14) instituted Cyclargus for some species, which has been supported by more recent research...

Kurt Johnson (in litt. 2002), who has published most of the existing literature since 1950 on the blue butterflies of the tribe Polyommatini, reaffirmed that thomasi belongs in the genus Cyclargus (Nabokov 1945, p. 14), not Hemiargus. Accordingly, Cyclargus thomasi bethunebakeri (Pelham 2008, p. 21) and its taxonomic standing is accepted (Integrated Taxonomic Information System 2011, p. 1).

The reference is to Nabokov's 1945 paper, Cyclargus n.g. Notes on Neotropical Plebejinæ (Lycaenidae, Lepidoptera). Psyche 52:1-61.

The subject of Nabokov's research has been discussed at length before. In the New York Times last year, Carl Zimmer wrote

Nabokov’s reputation as a scientist languished until the 1990s. Kurt Johnson, an entomologist then at the American Museum of Natural History, examined the genitals of the [Polyommatus] blues and was surprised at their diversity. Searching the literature for help, he came across Nabokov’s work. As he later described in the 2000 book “Nabokov’s Blues,” written with Steve Coates, Dr. Johnson set about reviving Nabokov’s classification. Working with Zsolt Balint of the Hungarian Museum of Natural History and Dubi Benyamini, an Israeli collector, he collected new blues and carefully examined them. In the end, they decided Nabokov was right in his classification. Along the way, they even named some new species in his honor, like Nabokovia cuzquenha.

The article also discusses how Nabokov "envisioned [the blues] coming to the New World from Asia over millions of years in a series of waves."

Few professional lepidopterists took these ideas seriously during Nabokov’s lifetime. But in the years since his death in 1977, his scientific reputation has grown. And over the past 10 years, a team of scientists has been applying gene-sequencing technology to his hypothesis about how Polyommatus blues evolved. Last week in The Proceedings of the Royal Society of London, they reported that Nabokov was absolutely right.

“It’s really quite a marvel,” said Naomi Pierce of Harvard, a co-author of the paper.

LINKS

Cyclargus thomasi bethunebakeri

 

 

Apr 042012
 

A federal judge has ruled against requests that would allow continued hunting without a permit of three non-native, privately bred antelope species on game farms in Texas (Safari Club International v. Salazar, 11-1564-BAH; Exotic Wildlife Association v. U.S. 12-340-BAH, D.D.C).

Safari Club International and the Exotic Wildlife Association had asked U.S. District Judge Beryl Howell for separate injunctions. SCI sought to enjoin enforcement of endangered status for the scimitar-horned oryx, dama gazelle, and addax, Howell noted in her April 3 opinion. EWA and co-plaintiffs "are seeking more narrow relief" to prohibit the Fish and Wildlife Service from enforcing a final rule removing a regulation "that has, since 2005, exempted U.S. non-native captive populations of the three antelope species from many of the prohibitions, restrictions, and requirements attendant to their classification as endangered species."

That rule, which goes into effect today (April 4, 2012), was promulgated in response to a previous federal court decision (Friends of Animals v. Salazar, 626 F. Supp. 2d 102, D.D.C. 2009) that found FWS had illegally allowed the hunting of the antelope species, which are native to Africa but are raised on game farms in Texas. The "captive-bred exemption" was included in a rule listing the species as endangered. District Court Judge Henry Kennedy determined that the rule had been issued without proper public notice and comment.

In her decision, Howell said then plaintiffs had not demonstrated a likelihood of success on the merits, because FWS's listing decision "was issued only after years of consultation and research, and appears to be consistent with the policy and practice of the FWS as well as with the purpose of the ESA."

The judge said that examples cited by SCI where FWS treated captive and wild animals differently "are just that, examples." She continued:

"An agency decision to treat the wild and captive antelope together in the listing decision came only after consideration over the period from 1991 to 2005. The fact that the FWS has over time differentiated between wild and captive animals in the case of other animal species does not, on its own, suggest to the court that the decision not to do so in this case was arbitrary and capricious."

The judge also said SCI had not been able to show that FWS “ignored the conservation mandates of the ESA.”

"Indeed, by listing both the captive and wild populations of the three antelope species as endangered, the FWS has ensured that prohibitions against taking, importing, and exporting will apply to all members of the three antelope species. There will be no confusion about whether a party is attempting to 'take' a captive-bred antelope or a wild antelope as there might be if only some of the three antelope species were considered 'endangered.' "

EWA argued that FWS should have considered delisting the species, and that removing the captive-bred exemption will harm conservation efforts. Indeed, EWA had argued that "[t]he draconian effect of this new rule is easy to predict [because], since publication of the proposed rule last summer, many owners have already disposed of half or all of their oryx, addax and dama gazelles.”

"These claims about the adverse impact on the U.S. herds of these endangered species from the final rule, even before it becomes effective, are obviously disturbing," Howell said. "Neither SCI nor the EWA plaintiffs have shown, however, that they are entitled to a preliminary injunction because they will suffer irreparable harm. In the case of both SCI and the EWA plaintiffs, the harm alleged is (1) primarily economic and (2) in any case, remedied by the permit practice that is already in place."

"The court does not underestimate the significance of the economic loss to individual ranchers resulting from the depreciation in the value of the animals," the judge wrote. "Nevertheless, the standard for showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not sufficient to warrant this court’s granting of a motion for a preliminary injunction. The D.C. Circuit has made it clear that 'economic loss does not, in and of itself, constitute irreparable harm.' Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)."

Said the judge: "The regulations in place after the final rule goes into effect on April 4 . . . should allow plaintiffs to continue raising the [antelopes]. First, the ESA does not regulate 'purely intrastate activities (with the exception of take).' 77 Fed. Reg. at 433. Thus, plaintiffs will be able to continue to possess animals, transport them within the state, or sell them to another party within the state without a permit. Beyond those activities, permits will be available for many of the other activities currently engaged in by the plaintiffs."

Supreme Court to take up takings case involving flooding in Arkansas

The Supreme Court granted a petition for writ of certiorari in a case involving the Army Corp of Engineers' flooding of a wildlife management area in Arkansas (Ark. Game & Fish Commission v. U.S., 11-597).

The question is "whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause."

Links

Investigation demanded of trapping, killing of Idaho wolf by Forest Service employee

The Center for Biological Diversity has asked the Forest Service and Idaho Attorney General to investigate the actions of a Forest Service employee "who posted photos of a wolf he had trapped in northern Idaho that had been maliciously and non-fatally shot by people who spotted the animal from a nearby road."

The photos were originally posted on the trapperman.com website but havre since been taken down. [Editor's note: The Center for Biological Diversity also had posted a photo to which we linked earlier, but CBD has removed that picture, as well as a letter it sent to the Idaho Attorney General.]

“A year ago, that wolf was protected as a member of an endangered species, but last month he was trapped, tortured and killed thanks to an underhanded congressional rider that’s also responsible for the deaths of hundreds of other wolves in the northern Rocky Mountains,” said the Center’s Michael Robinson. “A lack of respect for the balance of nature is leading to a war on wolves in the northern Rocky Mountains.”

Bransford with the wolf before he shot it (pic downloaded from Idaho Statesman page; I have no intention of removing it.)

According to the Boise Weekly," a spokesman for [Idaho Fish and Game's] Clearwater Region said the wolf was legally trapped by Bransford and subsequently checked by department officials."

Bransford works in the Nez Perce National Forest, but there has been no suggestion that the incident occurred while he was on the job.

Here's the Earth Island Journal account.