Feb 102015
 

A lawsuit has been filed seeking a threatened listing under the Endangered Species Act for the blueback herring.

From the news release:

In August 2011, NRDC petitioned NMFS to list blueback herring as threatened under the ESA, and to designate critical habitat for the species. Two years later, the Service published its determination that the blueback herring was not likely to become in danger of extinction and does not warrant protection under the ESA—despite the government’s acknowledgement that the species was likely at or less than two percent of its historical baseline (based on catch levels) and that three out of four regional blueback herring populations in the U.S. were likely still decreasing. NRDC and Earthjustice, on behalf of several fishing and watershed groups, filed a 60-day notice of intent to sue for ESA protection of the imperiled river herring in October 2014.

Complaint (NRDC v. Sobeck, 15-198, D.D.C.)

The plaintiffs are NRDC, Anglers Conservation Network, Delaware River Shad Fishermen’s Association, Great Egg Harbor River Council, and Great Egg Harbor Watershed Association.

Feb 102015
 

Environmental groups file motion in 9th Cir. seeking stay of EPA approval

EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353).

News release (Earthjustice, Feb. 9)

The request for stay pending review was filed by the Center for Food Safety, National Family Farm Coalition, Pesticide Action Network North America, Beyond Pesticides, Environmental Working Group, and Center for Biological Diversity, and is supported by the Natural Resources Defense Council, which filed its own petition for review.

The herbicide, called Enlist Duo,"is specifically designed and registered to be used on 'Enlist' crops, which are new varieties of corn and soy that have been genetically engineered by Dow [AgroSciences] to withstand both 2,4-D and glyphosate," the petition says. "The technology is marketed as a chemical means to rid fields planted with Enlist corn and soy of unwanted weeds, without damaging the crop itself."

The groups argue that they are likely to win their case because EPA did not consult under the Endangered Species Act's Section 7 about the effects of Enlist Duo on the whooping crane and Indiana bat.

“EPA admits that its approval of a toxic pesticide cocktail including 2,4-D for widespread use may affect endangered species, including the whooping crane, one of the most endangered animals on earth,” said Earthjustice Managing Attorney Paul Achitoff. “We ask only that the court decide whether EPA has violated the law, as we believe it has before putting these imperiled birds at further risk.”

The challenge was filed in the Ninth Circuit in October.

Links

Dow opposition to original motion for stay (1/23/15)

Dow AgroSciences news release (pre-motion) Company "announced quality standards for glyphosate trait stacking with Enlist. The company said it will allow Enlist to be stacked with advanced glyphosate traits only. It will not allow stacking with the first generation of the Roundup Ready® trait."

Jan 142015
 

Two conservation groups have signaled their intention to sue the Fish and Wildlife Service, National Park Service and Forest Service over approved "take" of 15 grizzly bears in two Biological Opinions.

In a news release issued today, Earthjustice, the law firm representing Western Watersheds Project and Sierra Club, said:

In decisions issued over the past 15 months under the Endangered Species Act, FWS reasoned that approved grizzly killing would remain within sustainable levels. However, FWS, the Park Service and the Forest Service all neglected to consider  the fact that the killing of these 15 grizzlies, when added to the amount of other grizzly “taking” anticipated by FWS around the Yellowstone region, could exceed sustainable levels for females by more than three times, pushing the population into decline.

The notices of intent to sue are available here (for the "no jeopardy" conclusion in the Sept. 13, 2013, addendum to the Biological Opinion on the 2007 Bison and Elk Management Plan for the Jackson Hole National Elk Refuge and Grand Teton National Park) and here (for the "no jeopardy" conclusion in the Biological Opinion for the 2014 Supplement to the 2013 Supplement and 2010 Amendment to the 1999 Biological Assessment for Livestock Grazing on the Northern Portions of the Pinedale Ranger District, 06E13000-2014-F-0040, Sept. 3, 2014).

Full text of press release follows

Federally Approved “Take” of Grizzly Bears Threatens Recovery

Conservationists demand agency consideration of escalating mortality
January 14, 2015
Bozeman, Mont. —Recent federal approvals for the lethal “taking” of 15 grizzly bears in Grand Teton National Park and the Upper Green River area of northwest Wyoming threaten to push grizzly mortalities beyond sustainable levels in the Yellowstone region, according to conservation groups. Today, those groups gave notice of their intent to file suit to protect the grizzlies.Today’s Notice of Intent to Sue by the Sierra Club and Western Watersheds Project, represented by the public-interest environmental law firm Earthjustice, challenges the U.S. Fish and Wildlife Service (“FWS”), National Park Service and U.S. Forest Service over their recent decisions allowing the lethal “take” of 15 grizzly bears.

In decisions issued over the past 15 months under the Endangered Species Act, FWS reasoned that approved grizzly killing would remain within sustainable levels. However, FWS, the Park Service and the Forest Service all neglected to consider  the fact that the killing of these 15 grizzlies, when added to the amount of other grizzly “taking” anticipated by FWS around the Yellowstone region, could exceed sustainable levels for females by more than three times, pushing the population into decline.

“Killing 15 more bears in the Yellowstone region, including even in one of our nation’s premier national parks, could be the straw that breaks the camel’s—or, in this case, the grizzly’s—back,” said Earthjustice attorney Tim Preso. “The Endangered Species Act requires federal officials to look at that big picture, yet they failed to do so.”

“The Fish and Wildlife Service has repeatedly increased the number of grizzly bears that can be killed, without looking at the broader impact on grizzly recovery in the region. Taken together, the anticipated 'take' would exceed the agency’s own limit for female grizzly bear deaths by more than three times,” said Bonnie Rice with Sierra Club’s Our Wild America campaign. "With a slow reproducing animal like the grizzly bear, those numbers would have significant long-term consequences on grizzly recovery."

“The Fish and Wildlife Service has a responsibility to protect the endangered grizzly bear,” said Travis Bruner, Executive Director of Western Watersheds Project. “The Service continues to allow the killing of more bears without presenting sound scientific reasoning that considers the regional impact on the species. We demand that the government rethink its approach, and base its decisions on science rather than politics and the interests of private livestock owners that graze cattle on our public lands.”

Background:

Yellowstone-area grizzly bears are listed as a threatened species under the Endangered Species Act. Federal biologists acknowledge that the growth of the Yellowstone grizzly bear population level has flattened over the past decade.  At the same time,  the grizzly population has been faced with the loss of two of its most important food sources in the Yellowstone region—whitebark pine seeds and cutthroat trout—due to changing environmental conditions driven in part by a warming climate. In the wake of these changes, scientists have documented the bears’ transition to a more meat-based diet, but that diet leads to a greater potential for conflict with human hunting and livestock grazing activities.

Against this backdrop, FWS in September 2013 authorized the National Park Service to proceed with an elk hunt in Grand Teton National Park that is anticipated to cause the lethal take of four grizzly bears over a nine-year period. Then, in September 2014, FWS authorized the Forest Service to continue livestock grazing operations in the Upper Green River area of the Bridger-Teton National Forest that are anticipated to cause the lethal take of 11 more grizzly bears within any consecutive three-year period through the end of 2019.

In issuing these decisions, FWS reasoned that these impacts to the Yellowstone-area grizzly population would be acceptable because the anticipated bear mortalities would fall within limits established by federal biologists to ensure a sustainable grizzly population that does not slip into decline. However, FWS failed to acknowledge or consider the fact that the Grand Teton and Upper Green “take” determinations, when combined with similar “take” determinations issued by FWS and currently in effect for other actions around the Yellowstone region, anticipate the killing of as many as 65 female grizzly bears in a single year—a level that more than triples FWS’s own established mortality limit.

The conservationists contend that FWS cannot rely on compliance with sustainable grizzly mortality thresholds to justify additional killing of Yellowstone bears unless federal officials consider the impacts of all the grizzly bear mortality they have anticipated across the region.

 

 

Nov 122014
 

Conservation groups and a retired FWS wolf biologist have sued the service over the lack of a proper recovery plan for the Mexican gray wolf, which numbers fewer than 100 individuals.

"Earthjustice is representing Defenders of Wildlife, the Center for Biological Diversity, retired Mexican Wolf Recovery Coordinator David R. Parsons, the Endangered Wolf Center and the Wolf Conservation Center," EJ said in a news release

"A new analysis of the service’s failed efforts to develop a recovery plan released today by the Center for Biological Diversity reveals an agency that over three decades convened three different teams of expert scientists to prepare the much-needed plan only, in each case, to pull the plug once the plans neared completion."

Nov 112014
 

Earthjustice attorney Tim Preso, who represents environmental groups in the litigation that resulted in the Fish and Wildlife Service reclaiming authority (unwillingly) over the gray wolf in Wyoming, wrote in the Casper Star-Tribune Sunday that the service and the state should "comprehensively address the weaknesses of Wyoming’s wolf management program that make it vulnerable to court reversal. Doing so would give the Wyoming Game and Fish Department the tools it needs to responsibly manage wolves. It would also ensure a secure future for a great American conservation success story."

Preso was taking aim at what he called a "troubling" comment by Fish and Wildlife Service Director Daniel Ashe. From the op-ed:

Arguing that Judge Jackson shouldn’t have returned the wolf to federal protection, Ashe recently said, “The judge took a small defect to make a large decision of vacating the rule.”

The fundamental issue of Wyoming’s failure to guarantee an adequate minimum population of wolves is hardly a “small defect.” But, even more important, the court didn’t subject many other aspects of Wyoming’s program to any scrutiny after it found that major fault.

It would be wrong to mistake that silence for assent. If the Fish and Wildlife Service believes that Wyoming can fix its program merely by writing a slightly more binding promise to maintain a minimum population, it is effectively betting that it can win on every other outstanding issue concerning Wyoming’s wolf management — even though the Service has never yet won a wolf delisting case.

Preso also said some have mischaracterized the judge's ruling as reflecting approval of the service's conclusion that the wolf has recovered in the Northern Rockies.

"[S]ome have claimed that the judge also admitted in her ruling that the wolf had recovered as a species even though she put it back under federal protection. That is not so," Preso wrote. "When Jackson’s ruling discussed the wolf’s recovery, it addressed only a specific scientific finding about wolf immigration and the amount of 'genetic exchange' among different populations the Fish and Wildlife Service had documented prior to the wolf’s delisting in 2012. Importantly, the judge did not address whether Wyoming’s management plan could sustain adequate wolf immigration in the future, which is also essential for any finding of recovery."

The full op-ed is here

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)

Jan 142014
 

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

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

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

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

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

Links

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

Summaries of omnibus bill sections, from House Appropriations web page

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