Sep 082015

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. Mont.).

Said U.S. District Judge Brian Morris in his order, issued Sept. 4:

"Federal Defendants’ argument presumes that pallid sturgeon will successfully navigate the bypass channel and successfully spawn upriver. As noted above, however, Federal Defendants have failed to conduct any analysis on the efficacy of the bypass channel at accomplishing this goal. Under these circumstances, the prudent approach requires a careful consideration of the environmental impacts before proceeding with the Project. The balance of the hardships and the public interest tip in favor of an injunction. This injunction will ensure that Federal Defendants consider all potential impacts of the Project before construction begins. This analysis will ensure that the Federal Defendants understand the impacts on pallid sturgeon and can address these impacts appropriately."

The groups suing are Defenders of Wildlife and the Natural Resources Defense Council.


From the "background" portion of the order:  "The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully."

"The United States Bureau of Reclamation (Bureau) intends to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56,800 acres currently serviced by Intake Dam."

"Defenders’ challenge arises largely from their claim that Federal Defendants have failed to comply with NEPA. Defenders argue that the new weir will continue to harm pallid sturgeon and that Federal Defendants have not conducted sufficient
analysis to determine whether the bypass channel will mitigate this harm. Defenders contend that the EA failed to include sufficient analysis and, alternatively, that federal law required that they prepare an Environmental Impact Statement (“EIS”) due to the fact that the Project will continue to cause significant impacts to the pallid sturgeon."

More coverage

Judge expects to make ruling by Sept. 8 regarding irrigation project (by Mike Francingues, Sidney Herald, 8/30/15)

NY Times op-ed (by Chris Hunter, former chief of fisheries for the Montana Department of Fish, Wildlife and Parks, 9/3/15)

Judge blocks lower Yellowstone dam over fish worries  by Matthew Brown, Associated Press (9/8/15)

Feb 022015

Defenders of Wildlife and Natural Resources Defense Council have sued three federal agencies "demanding that [they] fix their dam operations that threaten the existence of wild pallid sturgeon." (press release) (complaint)

That's one big fish

"Although the impacts of these dams have been well documented for more than 20 years, the agencies have avoided their obligations under the Endangered Species Act (ESA) to change their operations. Instead of complying with their ESA obligations, the Corps and Reclamation are now proposing to increase the size of the Intake Diversion Dam [on the Yellowstone River] and add an artificial side channel for fish passage that scientists say has no reasonable expectation of success, creating an even bigger and more permanent barrier to pallid sturgeon passage," DoW and NRDC said in their news release, issued today (Feb. 2).

Background, from the press release:

Background: The Intake Diversion Dam on the Yellowstone River – a major tributary of the upper Missouri River – blocks pallid sturgeon from reaching critical spawning grounds, while issues with the timing and temperature of water releases from the Fort Peck Dam, destroy the pallid’s spawning and rearing habitat in the mainstem Missouri. Any eggs that hatch are sent downstream to suffocate, starve, or become food for larger fish in Lake Sakakawea in North Dakota. Together, these dams prevent the pallid sturgeon from successfully reproducing in the upper Missouri River basin. As a result, the wild population in the basin – the most important population of pallid sturgeon remaining for recovery – is dying out. Approximately 125 wild fish remain, all nearing the end of their lives.

NRDC Switchboard (Marcus Griswold)

Jun 182012

The U.S. District Court for the District of Columbia -- Judge James E. Boasberg, that is -- has upheld protections for the shovelnose sturgeon because it looks so much like the pallid sturgeon, which is listed as endangered (Illinois Commercial Fishing Association v. Salazar, 10-1642 JEB, D.D.C.).

The Fish and Wildlife Service listed the shovelnose as threatened partly on the basis that it looked so much like the endangered pallid sturgeon.

The judge said that listing the shovelnose as threatened is justified to protect the endangered pallid.

Can you tell them apart?

"Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit," Boasberg said.

It's not easy to tell the difference between the two fish.

The judge said that even "fish biologists and commercial fishermen – both of whom have more specialized knowledge of fish species than enforcement personnel -- have trouble distinguishing between the shovelnose sturgeon and pallid sturgeon."

Here are some excerpts, in no particular order:

"If trained fish biologists struggle to distinguish between the shovelnose and pallid sturgeon – even when aided by scientific tools designed specifically for that purpose – it is certainly reasonable to infer that enforcement personnel will have at least as much (and probably more) trouble doing so. Unlike fish biologists and commercial fishermen, the agents who enforce the ESA do not focus on fish, let alone a particular species of fish. Rather, they are responsible for enforcing ESA protections for all listed species within their jurisdiction, from plants and birds to reptiles and mammals."

"The second criterion for listing a species as threatened or endangered under the similarity-of-appearance provision is that enforcement personnel’s “substantial difficulty” poses an additional threat to an endangered or threatened species. See 16 U.S.C. § 1533(e)(B). This requirement is met here because the evidence in the record demonstrates that (1) take of pallid sturgeon incident to commercial shovelnose-sturgeon fishing is a threat to the pallid sturgeon, and (2) the inability to effectively enforce the ban on taking pallid sturgeon allows fishermen to take the endangered fish with impunity, rendering the ban futile."

"As discussed in Section III.A.2, supra, a prohibition on the take of shovelnose sturgeon substantially advances law-enforcement efforts to protect the pallid sturgeon. It eliminates the difficult law-enforcement task of attempting to distinguish between the species. In addition, it facilitates prosecution of poachers who might otherwise be able to avoid punishment by arguing that they reasonably believed they had lawfully taken a shovelnose sturgeon."

"Listing the shovelnose as a threatened species under the similarity-of-appearance provision also furthers the ESA’s goal of conserving the endangered pallid sturgeon. Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit. For instance, scientists have observed a large difference in the mortality rates and maximum ages of pallid sturgeon in areas with commercial shovelnose harvest compared to those without. See AR 70 (observed mortality rate of 37-39% in areas with commercial shovelnose-sturgeon harvest compared to 12% mortality rate in areas without); see also AR 2982-84 (study finding difference in age classes between areas with commercial shovelnose harvest and without); AR 93 (published study noting that “current recovery efforts underway for the endangered pallid sturgeon may be jeopardized” by commercial shovelnose fishing); AR 3030 (study stating that “[i]ncidental and illegal harvest of pallid sturgeon has been documented in the Mississippi River, and this may be a significant impediment to survival and recovery of the species in some portions of its range”) (internal citations omitted)."

Jun 152012

The law firm that has been threatening to sue over a planned wind farm in Pennsylvania has gotten its wish: The energy company that wanted to build the project has withdrawn it.

In a blog post June 13, Meyer Glitzenstein & Crystal said that Gamesa decided not to move forward "after years of controversy," no doubt engendered in part by the numerous notice letters sent by MG&C on behalf of its environmental clients.

Here's the item in full from the law firm's Wildlife and Environment Blog:

Indiana bat

Company Pulls The Plug On Industrial Wind Farm In Critical Indiana Bat Habitat

by Meyer Glitzenstein & Crystal

After years of controversy, energy company Gamesa has withdrawn its plans to build an industrial wind power facility near Shaffer Mountain, Pennsylvania.  The project would have been placed in an important migratory corridor for Golden eagles and in the midst of a maternity colony of critically endangered Indiana bats.  This would have been the first time that a wind project – which according to leading experts would have killed and harmed Indiana bats due to turbine collisions and a pressurizing condition called barotrauma – would be sited in such a sensitive location for an endangered species.  On behalf of several conservation organizations and community members, we submitted multiple notice letters and comments to the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers detailing various violations of the Endangered Species Act, Clean Water Act, and National Environmental Policy Act, which inevitably influenced the company’s decision to withdraw from this project in lieu of more sustainable project locations elsewhere that will better allow for clean, renewable energy without sacrificing our nation’s important natural resources.

More WE-Blog (and other) links

Thinning project doesn't survive court challenge related to lynx habitat

The Split Creek project, which would involve the precommercial thinning of about 7,000 acres of lodgepole pine in the Caribou-Targhee National Forest, cannot proceed because of NEPA and ESA violations, a federal judge ruled June 6 (Native Ecosystems Council v. U.S. Forest Service, 11-212-CWD, D. Idaho).

U.S. Magistrate Judge Candy Dale said the Forest Service should have prepared an Environmental Impact Statement when it issued a revised map in 2005 that eliminated eight Lynx Analysis Units in the forest, lifting restrictions on thinning for about 400,000 acres.

Canada lynx

The Forest Service issued an EA on the project, but Dale said the significance of the project warranted preparation of an EIS. In addition, the service illegally "tiered" the project under NEPA by relying on the 2005 revised map, which itself had not been analyzed under NEPA. Finally, the service should have consulted with the Fish and Wildlife Service over whether the revision of the 2005 map -- and with it, the elimination of nearly 400,000 acres of land within the LAUs -- would jeopardize lynx or their critical habitat.

Alliance for the Wild Rockies, a co-plaintiff in the case, issued a press release June 7. (Excerpt: "Mike Garrity, Executive Director of the Alliance for the Wild Rockies said, "In essence, the Court stopped the project because the Forest Service simply changed a map in 2005 to eliminate protective restrictions for lynx on 400,000 acres of the Caribou-Targhee National Forest without following the requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The agency then claimed that it wasn't lynx habitat and authorized tree cutting on 7,000 acres of lodgepole pine located within the Island Park and Madison-Pitchstone Plateaus Subsections of the Caribou-Targhee National Forest.")

Here's the shovelnose sturgeon decision. More on this decision in a bit.

Can you tell them apart?