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Naples, Fla., man fined, confined for killing Florida panther

 Posted by on August 8, 2012  Enforcement, ESA, FWS
Aug 082012
 

Scroll down for the article as prepared for the next issue of Endangered Species & Wetlands Report (ESWR.com)

A Naples, Fla., man received 60 days of home confinement and three years’ probation, and will have to pay fines totaling $10,000, including a community service payment of $5,000, for killing an endangered Florida panther. (Judgment) (Plea agreement)

When he finishes home confinement, Todd Alan Benfield will spend 15 weekends in a row (i.e., 30 days) in “intermittent incarceration” at the Collier County Jail.

He pled guilty this spring to having killed the cat two and a half years earlier, using a compound bow and a 3-blade broadhead-tipped arrow. The day after shooting it (Oct. 9, 2009), “Benfield and an associate moved the panther into the Woodland Grade area, in an attempt to conceal the animal,” according to the Justice Department:

According to court documents, on October 8, 2009, Benfield was bow hunting along Woodland Grade, in the Golden Gate Estates area of Collier County. On that day, he used a tree stand to hunt for deer. From his tree stand, Benfield knowingly shot and killed a Florida Panther with his compound bow and a 3-blade broadhead-tipped arrow. The following day, Benfield and an associate moved the panther into the Woodland Grade area, in an attempt to conceal the animal. On October 10, 2009, Benfield removed his tree stand from the area in an effort to conceal the fact that he had killed the panther. On the same date, a Florida Fish and Wildlife Conservation Commission officer located the dead panther in a section of thick vegetation, in the Woodland Grade area. The officer determined that the dead panther had been dragged approximately 50 yards.

Don't shoot me

Story as prepared for ESWR

By Steve Davies

A Naples, Fla., man who killed a Florida panther with a crossbow was sentenced to 60 days of home confinement and ordered to pay a fine of $5,000 and a community service payment of $5,000.

Todd Alan Benfield also received three years of probation and must perform 200 hours of community service at the Florida Panther National Wildlife Refuge or the Rookery Bay National Estuarine Research Reserve.

In addition, Benfield must issue a public apology to be published in the Naples Daily News, and will not be allowed to hunt while on probation. He must take a hunter safety course and has been ordered to forfeit the compound bow, arrows, ladder tree stand, and accessories he used to shoot the panther, listed as an endangered species.

Benfield pled guilty on May 18. In a statement attached to the plea agreement, he apologized and said he shot the panther because he thought it “was competing and interfering with my hunting. I was wrong to have shot and killed a Florida panther.”

“I apologize to my local and national community and friends for my illegal activity and the negative [publicity that it may have brought to hunting. Please remember that local, state and federal wildlife officials are aggressive and on the lookout for these types of criminal violations. Learn from my mistake. Don’t repeat them.”

When confronted initially by Fish and Wildlife Service and FWC investigators, Benfield denied he had anything to do with the panther’s death. Shortly afterwards, however, law enforcement officials turned up evidence of the crime in his home and vehicle.

The Florida Wildlife Federation said the penalty should have been more severe. FWF President Manley Fuller said Benfield should have received the maximum fine called for in the Endangered Species Act, $100,000, and a lifetime revocation his hunting license.

On Oct. 8, 2009, Benfield was hunting deer from a tree stand in the Golden Gate Estates area of Collier County when he saw the panther. The next day, he and his associate moved it, and the day after that, he went back and removed his tree stand “in an effort to conceal the fact that he had killed the panther,” according to a news release from the U.S. Attorney’s Office of the Middle District of Florida.

The same day Benfield removed the tree stand, a Florida Fish and Wildlife Conservation Commission officer “located the dead panther in a section of thick vegetation, in the Woodland Grade area. The officer determined that the dead panther had been dragged approximately 50 yards.”

SCOTUS declines to review tri-state water dispute

 Posted by on June 28, 2012  Supreme Court
Jun 282012
 

Here’s some Supreme Court news we overlooked: On Monday, the court, by not granting petitions for writs of certiorari filed by Alabama, Florida and Southeastern Federal Power Customers, essentially validated Atlanta’s right to water from Lake Lanier (Docket).

The 11th Circuit Court of Appeals last year reversed a district court ruling, finding:

ACT and ACF basins

First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the [Rivers and Harbors Act]. The Corps’ denial of Georgia’s 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County’s contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and [1958 Water Supply Act].

Coverage of the non-decision decision can be found here, here and here (scroll over those links to see the sources).

Links

More legal background, courtesy of SCOTUSBlog

These documents concern the D.C. Circuit’s decision in Feb. 5, 2008, that an agreement to reallocate Lake Lanier’s storage space “constitutes a major operational change on its face and has not been authorized by Congress.” The court reversed the district court’s decision. Litigation continued in the 11th Circuit.

Docket: 08-199
Title: Georgia v. Florida, et al.
Issue: The validity of, and ability of Florida and Alabama to challenge, a settlement agreement involving water allocation from Lake Lanier in Georgia.

Miami blue butterfly alights on endangered species list

 Posted by on April 11, 2012  Daily Links, FR, FWS, Listings
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

 

 

Corps did not scrutinize Fla. mall’s impacts on Eastern indigo snake, D.C. Circuit finds

 Posted by on November 29, 2011  Clean Water Act, Court calls, Daily Links, FWS, NEPA, Wetlands
Nov 292011
 

Opinion is here

Corps didn’t properly review Fla. mall’s effects: D.C. Cir. (from page 1)

The Army Corps of Engineers should have looked more closely at the expected impact on the threatened Eastern indigo snake from construction of a large shopping mall, the D.C. Circuit Court of Appeals has ruled (Sierra Club v. Van Antwerp, 10-5284).

The currently dormant Cypress Creek Town Center project, located outside Tampa, would result in displacement of more than 50 acres of wetlands, including habitat for the snake and the endangered wood stork.

In its Nov. 29 decision, the circuit court essentially did the opposite of U.S. District Judge Royce Lamberth, who had issued a scathing opinion finding against the Corps on the plaintiffs’ NEPA and Clean Water Act claims (Sierra Club v. Van  Antwerp, 719 F.Supp.2d 58 (D.D.C. 2010) (07-1756 RCL).

Instead, Circuit Judges Stephen Williams, Brett Kavanaugh and Merrick Garland upheld the Corps’ evaluation of alternatives as required by Section 404 under the CWA. The proposed mitigation is enough to compensate for the loss of the wetlands, which lack “uniqueness,” the court said, using the Corps’ word.

The plaintiffs had argued that the court should be skeptical about the value of wetlands creation as mitigation, given its often lackluster results. But the court said “the ultimate CCTC plan called for creation and preservation of substantial substitute wetlands, the sort of mitigation measures that we have found ‘sufficiently reduce the impact to a minimum.’ Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861).”

The court had no problem with the Corps’ acceptance of the developer’s reason for having more parking spaces than nearby malls, because there are more restaurants.

“[B]oth sides agree that CCTC’s parking ratio exceeds that of nearby malls,” the court said. “But CCTC defends its above-average ratio by pointing to the above-average proportion of restaurants in its project. While the Sierra Club does not contest the restaurant-parking link, it argues that there is no reason for so many restaurants. CCTC, in turn, seeks to justify the high proportion by saying that it aims to create more than a traditional mall. Whereas traditional malls use 4.8 percent of their square footage for restaurants, ‘lifestyle centers’ use 11.3 percent; CCTC, a self-described ‘town center,’ is between these two figures at 8.08 percent.”

“The Corps’ acceptance of CCTC’s parking ratio was not arbitrary or capricious in light of the practicability regulations,” which require the Corps to evaluate whether alternatives are practicable “in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations provide that “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.”

The Corps also properly concluded that the impacts to the wood stork were not significant enough to warrant formal consultation, the court said. “[T]he Corps’ conclusions rested on the project’s mitigation measures, which will bring about a net gain of wood stork foraging habitat.”

Sierra Club, however, contended in its opening brief that the government did not “address near term adverse impacts on breeding colonies while off-site mitigation is being implemented.”

“Given the relatively marginal role of the lost habitat, it does not seem arbitrary or in contravention of its statutory mandate for the Corps to find that the mitigation’s more than ‘one-to-one replacement ratio’ made up for the temporary deprivation.” The court concluded.

Snake needed more scrutiny, court says

However, “[i]n both ESA and NEPA contexts, we . . . find that the Corps failed to adequately address indications of an adverse effect on the indigo snake.”

In both of its findings of no significant impact, the Corps did not address possible the fragmentation of snake habitat. The second time, it was after submission of a declaration by Dr. Kenneth Dodd,  who as  Staff Herpetologist for FWS’s Office of Endangered Species had written the rule listing the snake as threatened. Dodd said “the project site was an important ‘wildlife corridor’ linking protected areas to the north and south, [and] noted that ‘movements over large areas of fragmented habitats expose Eastern Indigo Snakes to increased road mortality,’ and that ‘the more edge there is in relation to protected habitat [i.e., ratio of perimeter to surface area], the less likely large snakes can be maintained.’ ”

Nevertheless, “In its second FONSI, issued in August 2009, the Corps again did not address the impacts of habitat fragmentation.”

Said the court: “Given Dr. Dodd’s expertise and experience, and the seeming logic of his analysis, as well as CCTC’s own acknowledgment of the snake’s vulnerability to fragmentation risk, we think his comment qualifies as the sort of ‘relevant and significant’ public comment to which an agency must respond, lest its action be arbitrary and capricious.  See Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011). Accordingly, we must remand for further explanation by the Corps of its determination that the project was ‘not likely to adversely affect’ the indigo snake.  We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes.”

 

 

D.C. Circuit Court of Appeals panel questions Corps’ approval of shopping center outside Tampa

 Posted by on September 22, 2011  BiOps, Court calls, Daily Links, Wetlands
Sep 222011
 

A federal appeals court panel closely questioned a Justice Department attorney this morning about the Army Corps of Engineers ‘ decision to approve a permit in Pasco County, Florida, for a shopping center that would destroy more than 50 acres of wetlands, including habitat for the endangered Wood stork and threatened Indigo snake (Sierra Club v. Van Antwerp, 10-5284).

Snake in the grass (Photo of Drymarchon corais courtesy U-Georgia)

Two of the three judges appeared skeptical of the reasoning behind the Corps’ May 2007 approval of the permit application from Sierra Properties, which wants to develop what it calls Cypress Creek Town Center. The project would include more than 2 million square feet of retail and commercial space, 630 multifamily housing units, and enough parking for up to 14,000 cars.

“One of three acres of wetlands on site – over 50 acres – and almost 10 acres of surface waters will be destroyed outright, nearly half to provide for parking alone,” the brief filed by Sierra Club, Clean Water Action and Gulf Restoration Network said. Plaintiffs Chris Loy and Richard Somerville also sued the Corps.

The government is appealing a decision by U.S. District Judge Royce Lamberth (Sierra Club v. Van Antwerp, 07-1756 RCL, D.D.C.). “The Corps failed to prepare a required EIS for the project site pursuant to NEPA and failed to require the applicant to demonstrate that practicable alternatives were not available pursuant to CWA,” Lamberth wrote in his June 30, 2010, opinion. He called the Corps’ “[failure] to fulfill its statutory duties under NEPA and the CWA . . . a familiar course of action for the Corps when processing permit applications.”

DOJ attorney Lane McFadden got some difficult questions from Circuit Judges Merrick Garland and Stephen Williams. Their fellow panelist, Circuit Judge Brett Kavanaugh, did not say much during the arguments.

Wood stork (FWS pic)

Garland focused on the Corps’ failure to respond to comments from Dr. C. Kenneth Dodd, the staff herpetologist in the Fish and Wildlife Service’s Office of Endangered Species at the time the snake was listed (and who, in fact, wrote the rule to list the snake).

“No one seems to dispute that he is the world’s foremost expert on the Eastern Indigo snake,” Garland said. Yet, “I don’t see a response to the problem of destruction of the wildlife corridor or the fragmentation of its habitat.”

The snake, McFadden replied, “has done very well in suburban settings.”

The requirement for the service, he continued, “is not to respond to all comments but to make a reasoned decision.” Garland ended McFadden’s initial turn at the podium by saying he wanted to know more about connectivity.

Eric Glitzenstein argued for the plaintiffs/appellants/cross-appellees, so designated because while they essentially won at the district court level, they also were appealing Lamberth’s determination that the FWS had complied with the ESA.

He started by highlighting what his clients considered a particularly egregious oversight: the Corps’ alleged failure to adequately consider a critical question for wetlands on the site — whether the parking envisioned was too much. In their brief, the environmental groups said that “even modestly reducing or consolidating some of the parking could have enormous benefits for the federally protected resources at issue.”

In their appellate brief , the environmental groups pointed to a comment from the Simon Property Group, “at the applicant’s request,” advising the Corps that the “entire center should park at 4.5 spaces per 1,000 square feet of leasable floor space.” The actual ratio is above 5 spaces per 1,000 square feet of retail space.

The brief went on to say, “Another company that has developed major malls in the same area and whose views were also solicited by Sierra Properties confirmed that this would be a ‘typical’ ratio for such a project. The Corps, however, never addressed this evidence.”

“This is exactly the kind of point the Corps should have responded to in the record,” Glitzenstein told the judges.

Background

In their brief, the environmental groups and individuals who sued the Corps summarized the district court opinion:

Based on its review of the Record and pertinent legal standards, the district court held that the Corps violated the CWA by allowing Sierra Properties to skew the economic analysis so that practicable alternatives minimizing wetlands destruction would appear impracticable. In addition, the court held that the extensive CCTC development requires an EIS because it will impair important wildlife habitat and other federally protected resources, and because it has already resulted in unlawful pollution of a valuable water body despite the developer’s insistence that this would not occur. The court rejected Plaintiffs’ claim that formal consultation under the ESA is required, although the Court recognized that the project will likely have adverse effects on the habitat of the threatened Indigo Snake and the endangered Wood stork.

Here’s more from that brief

As the district court held, the notion that it was genuinely “impracticable” within the meaning of the CWA regulations to save wetlands by eliminating some of the more than 12,200 individual paved parking spaces or to consolidate them in garages is unsupported by the record, contrary to the 404 Guidelines, and would render the CWA’s impracticability analysis a meaningless exercise.

Appellate briefs