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Posts from the ‘Endangered Species Act’ Category

April in Review

May 2, 2013

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Celebrate 40th Anniversary of Endangered Species Act on Endangered Species Day: May 17, 2013 is National Endangered Species Day. This year’s celebration marks the 40th anniversary of the Endangered Species Act, which was passed by Congress in 1973.

Wildlife refuges, marine sanctuaries, parks, zoos, aquariums, botanical gardens, libraries, schools and community centers will celebrate the national conservation effort to protect threatened and endangered species through the observance of Endangered Species Day.

California Condor Recovery Program Continues with Chick Born in San Diego: San Diego Zoo officials announced that a California condor chick hatched recently at the San Diego Zoo will be named “Cuyamaca,” which means “through the clouds” in the Native American Chumash language. The chick’s birth was part of efforts to revive the endangered California condor, whose numbers had dwindled to just 22 in the 1970s. Today, there are more than 400 living California condors thanks to the California Condor Recovery Program, a joint effort between the U.S. Fish & Wildlife Service, U.S. zoos and the Mexican government.

Half of the more than 400 living California condors are currently living in the wild. The San Diego Zoo has hatched 171 chicks as part of the recovery program releasing more than 80 into the wild.

Recently hatched california condor chick fed by condor glove at San Diego Zoo. Photo by Fox 5 San Diego.

Recently hatched California condor chick fed by condor glove at the  San Diego Zoo.
Photo by Fox 5 San Diego.

Massachusetts Poised to Become First State to Ban Plastic Grocery Bags: The Environmental, Natural Resources and Agriculture Committee of the Massachusetts Legislature approved a bill in late April that would ban plastic grocery bags in all supermarkets and stores in Massachusetts. The overwhelming committe approval gave momentum to the bill, which is expected to pass when presented to the full assembly.

Plastic grocery bags have been a menace to the environment for decades wreaking havoc on beaches, oceans and critical habitat for threatened and endangered species. If passed, Massachusetts would become the first state to outlaw plastic grocery bags by law. Plastic bags that are biodegradable would still be allowed under the bill.

For more information on how plastic bags impact wildlife in the ocean see http://5gyres.org/.

Upcoming Comment Period Closures:

Proposal to list Taylor’s checkerspot butterfly as endangered; and streaked horned lark as threatened and to designate critical habitat; and to list four subspecies of Mazama pocket gopher and designate critical habitat.  Comment ends: 5/3/2013.  See Proposed Rule:  Listing and Designation of Critical Habitat for Taylor’s Checkerspot Butterfly, Streaked Horned Lark, and Four Subspecies of Mazama Pocket Gopher.

Proposal of 5-year renewal of incidental take permit application for Florida-scrub jay-occupied habitat incidental to construction of single family subdivision in Brevard County, Florida. Comment ends: 5/6/2013.  See Proposed Rule:  Receipt of Application for Renewal of Incidental Take Permit; Availability of Proposed Low-Effect Habitat Conservation Plan; Eber Cove, LLC, Brevard County, FL.

NMFS proposed rule to list four distinct population segments of scalloped hammerhead sharks as threatened or endangered.  Comment ends:  6/4/2013.  See proposed rule:  Proposed Endangered, Threatened, and Not Warranted Listing Determinations for Six Distinct Population Segments of Scalloped Hammerhead Sharks.

Post by Cameron L. Long

Endangered Listing Sought for Captive Killer Whale at Miami Seaquarium

May 1, 2013

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Lolita performing at Miami Seaquarium. Photo by Miami Herald's Tim Chapman.

Lolita performing at Miami Seaquarium.
Photo by Miami Herald’s Tim Chapman.

78 Fed. Reg. 25044/Vol. 78, No. 82/Monday, April 29, 2013/Proposed Rules

Action: 90-day petition finding; request for information

Background: On January 25, 2013, the National Marine Fisheries Service (NMFS) recieved a petition from People for the Ethical Treatment of Animals (PETA) on behalf of several other parties to include an individual female killer whale (Orcinus orca) named Lolita in the Endangered Species Act (ESA) listing of the Southern Resident killer whales.  Lolita was captured from the Southern Resident population of killer whales in Washington’s Puget Sound in 1970.  She has lived in captivity at Miami Seaquarium, the longest operated oceanarium in the United States, ever since.

In 2005, the Southern Resident killer whale Distinct Population Segment (DPS) was listed as endangered under the ESA.  In its final rule, NMFS identified three specific pods as the DPS of Southern Resident killer whales deserving listing as endangered, but excluded Southern Resident killer whales in captivity, like Lolita, and their offspring from the endangered listing. Lolita is the only surviving member of the Southern Residents alive in captivity.

Killer whale (Orcinus orca), Southern Resident distinct population segment, which consists of whales from J, K and L pods, wherever they are found in the wild, and not including Southern Resident killer whales placed in captivity prior to listing or their captive born progeny.”

Further Complications: On August 2, 2012, NMFS received a petition submitted by the Pacific Legal Foundation contending that the killer whale DPS does not constitute a listable unit under the ESA because NMFS is without authority to list a DPS of a subspecies. The petition also presents new information regarding genetic samples and data analysis pertinent to the question of discreteness and the DPS determination.

On November 27, 2012, NMFS made a 90-day finding accepting the petition, based on the additional genetic samples and publication of new peer reviewed scientific journal articles regarding the taxonomy of killer whales, and requested information to inform a status review. That statues review is currently underway.

With this latest action, NMFS is requesting information to determine whether including Lolita in the Southern Resident killer whale ESA listing is warranted. If listing is warranted, it is yet unclear whether Lolita would remain in captivity at Miami Seaquarium or perhaps be returned to the wild. The comment period ends June 28, 2013.

Excerpt: “We are soliciting information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning Lolita’s genetic heritage and status. We will consider all of the available information in our determination of whether including Lolita in the Southern Resident killer whale ESA listing is warranted. If we propose to include Lolita in the DPS, we would seek public comment before making a final decision. We will coordinate our review of the petition to include Lolita in the Southern Resident DPS with our ongoing review of the concurrent petition to delist the DPS.”

Post by Cameron L. Long

Lolita with trainer at Miami Seaquarium. Photo by Seattle Weekly News.

Lolita with trainer at Miami Seaquarium.
Photo by Seattle Weekly News.

Further reading:

Final rule listing Southern Resident killer whales as endangered available at https://www.federalregister.gov/articles/2005/11/18/05-22859/endangered-and-threatened-wildlife-and-plants-endangered-status-for-southern-resident-killer-whales

Miami Herald article on Lolita available at http://www.miamiherald.com/2013/04/25/3364916/federal-officials-enter-debate.html

Longleaf Pine Restoration Improves Habitat for Endangered Species in Southeast

April 30, 2013

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Red-cockaded woodpecker perched on a longleaf pine. (Photo courtesy of U.S. Fish & Wildlife Service)

Red-cockaded woodpecker perched on a longleaf pine. (Photo courtesy of U.S. Fish & Wildlife Service)

The United States Department of Agriculture Natural Resources Conservation Service (NRCS) has implemented an initiative to restore longleaf pine ecosystems in the Southeast with the highest priority given to areas with critical habit for threatened or endangered species. The longleaf pine or “wiregrass” ecosystem originally covered nearly 90 million acres across Alabama, the Carolinas, Georgia, Florida, Louisiana, Mississippi, Texas and Virginia. Over time, the total acreage declined dramatically due to clearing efforts for agriculture and development, aggressive logging in the early 20th century, conversion to other types of pine for quick profits and the suppression of naturally occurring fires.  Today, less than 4 percent of the original longleaf acreage remains spanning an area estimated between 2 and 3.4 million acres.

Generally, longleaf pine ecosystems are found in the coastal plains of the Southeast. These ecosystems are home to a variety of mammals, insects, plants and aquatic wildlife. Given the close proximity to the coast, large numbers of both resident and migratory birds populate these ecosystems. High priority wildlife species that are listed as either threatened or endangered call these ecosystems home including the gopher tortoise, eastern indigo snake, black pine snake and the Red-cockaded woodpecker. Many resident and migratory bird species also use the longleaf pine ecosystems as wintering or breeding grounds including the Bachman’s sparrow, brown-headed nuthatch, great-crested flycatcher, Henslow’s sparrow, northern bobwhite, northern flicker, Southeastern American kestrel, swallow-tailed kite and yellow-billed cuckoo. In sum, the NRCS identifies 122 threatened or endangered species that call the remaining longleaf pine ecosystems home. With so many threatened or endangered species relying on these remaining strands of longleaf pines, the benefit of these recovery efforts is evident.

In 2012, the NRCS used additional funds from its Wildlife Habitat Incentive Program to increase the restoration effort of the longleaf pine ecosystem in Alabama. These additional funds were leftover from an allocation by the State of Alabama in 2010 to the NRCS Wildlife Habitat Incentive Program, which restored 6,000 acres of longleaf pine strands in Alabama. The restoration efforts by this program are prioritized based on the number of threatened and endangered species in the area. Priority levels were identified ranging from “Priority Area 1” to “Priority Area 3.” Projects in the three counties that qualified as “Priority Area 1,” Choctaw, Mobile and Washington, were the first to receive funding for restoration. These three counties are located in Southwest Alabama in close proximity to Mobile Bay.

The longleaf pine restoration initiative of the NRCS coincides with a joint restoration plan previously underway by the Alabama Wildlife Federation (AWF) and the National Wildlife Federation (NWF). In a three-year period spanning 2007-2010, the AWF and NWF made use of a grant funded by the National Fish and Wildlife Foundation and the Southern Company Longleaf Legacy Program to restore 3,000 acres of longleaf habitat in Alabama. The grant funding was extended for three more years in late 2010. With this next phase, the AWF and NWF are working to restore an additional 5,000 acres in three priority regions by December 2013. 

The AWF/NWF restoration plan differs in focus from that of the NRCS, but is equally beneficial to the threatened and endangered species in Alabama. The AWF/NWF plan focuses not only on what it identifies as traditional “game and wildlife management,” but also on food plots and mineral supplements within the longleaf ecosystem.  The AWF and NWF hope to stimulate private landowners to take the first steps in restoring an additional 10,000 acres of longleaf habitat even after the current restoration plan is completed in December 2013.

In 2011, the U.S. Fish and Wildlife Service (FWS) used funds from the American Recovery and Reinvestment Act of 2009 to begin restoration of the longleaf pine ecosystems in Southern Alabama and Southern Georgia. The FWS awarded a $300,000 contract to the Alabama Department of Conservation and Natural Resources Division of Wildlife and Freshwater Fisheries (AWFF) to help in the efforts to restore Alabama’s longleaf pine ecosystem. The FWS also awarded a $200,000 contract to Longleaf Alliance to restore longleaf pine habitats in southern Georgia. The Longleaf Alliance project in Georgia was completed in 2011 while the AWFF project to restore longleaf pine habitats in Alabama is still underway.

All of these highlighted efforts to restore longleaf pine ecosystems have a direct impact on improving the critical habitat of threatened and endangered species. By restoring lost longleaf pine ecosystems in the coastal plains of the Southeast, critical habitats for threatened and endangered species are both protected and expanded in the region. As a result, these restoration plans aim to re-establish the longleaf pine ecosystems in their native region to improve the chances of survival of threatened and endangered species by maintain existing critical habitats and providing opportunity for new habitat acreage to develop.

Map of Longleaf Pine Initiative in the Southeast. (Map courtesy of USDA Natural Resources Conservation Service)

Map of Longleaf Pine Initiative in the Southeast.
(Map courtesy of USDA Natural Resources Conservation Service)

Post by Cameron L. Long

March in Review

April 12, 2013

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Photo: Tim Cole, NMFS

Manatee Deaths in South Southwest Florida: Endangered manatees are seeing a rapid reduction in numbers due to the red tide in southwest Florida. Though red tide is a yearly occurrence, this year’s red algae bloom appears to be longer and stronger than years past. This year’s strong algae bloom could be the result of a combination of increased  phosphorus runoff from Florida agricultural lands and the weather. See: New York Times-Algae Bloom in Florida Leads to Record Manatee Deaths and Fish and Wildlife Service’s News Release.

The manatee is not the only species affected by the algae bloom. Other marine mammals, birds, and humans are also affected. Mote Marine Laboratory ‘s up-to-date beach report tracks  the presence of red tied and dead fish in southwest Florida.

Sperm Whales78 Fed. Reg. 19176/ Vol. 78, No. 61/ Friday, March 29, 2013/Rules and Regulations/Department of Interior/Fish and Wildlife Service.

National Marine Fisheries Service (“NMFS”)  issued a 90 day finding on WildEarth Guardian’s  petition to list a distinct population segment (“DPS”) of sperm whales as endangered or threatened under the Endangered Species Act. Sperm whales are already listed as endangered throughout its range; however, the petition asserted that “…DPS deserves separate listing as it is a discrete population that is also significant to the species and faces additional unique threats to its survival.’’  NMFS is seeking information to help determine whether this group qualifies as a DPS under the ESA, whether the DPS is threatened or endangered, and information to help NMFS designate critical habitat.

Photo: Tim Cole, NMFS

Photo: Tim Cole, NMFS

“Our joint NMFS–USFWS DPS policy (February 7, 1996; 61 FR 4722) identifies two elements that must be considered when identifying a DPS: (1) the discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species to which it belongs.”

Earth Day Events 2013:

Earth Day is Monday April 22, 2013.  Please visit EPA’s Earth Day Take Home Kit for ideas on how to celebrate.

You can also celebrate Earth Day by taking time to remember the Deepwater Horizon Oil Spill that happened three years ago on April 20, 2013 (See: 2010- Never Again) or by attending an Earth Day Event like the City of Sunrise- Earth Day Festival 2013.

Upcoming Comment Period Closures:

Acuna Cactus and Fickeisen Plains Cactus Comment ends: 4/29/2013. See Proposed Rule: Listing as Endangered and Designation of Critical Habitat for Acuna Cactus and Fickeisen Plains Cactus.

Buena Vista Lake Shrew Comment period ends: 05/06/2013. See Proposed Rule: Buena Vista Lake Shrew, Critical Habitat Designation.

North American Wolverine status comment periods close: 5/6/2013. See Proposed Rules: Listing and Establishment of Nonessential Experimental Population.

Loggerhead sea turtle designation of critical habitat comment period closes: 5/24/2013. See Proposed Rule: Designation of Critical Habitat for the Northwest Atlantic Ocean Distinct Population Segment of the Loggerhead Sea Turtle.

 

 

Post By: Kristen N. King Jaiven

Ruling in Endangered Whooping Cranes Case has Wide-ranging ESA Implications

April 8, 2013

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Death of 23 Whooping Cranes leads to suit with national implications. Photo by FWS.

Death of 23 Whooping Cranes leads to suit with national implications. Photo by FWS.

On March 11,2013, the United States District Court for the Southern District of Texas ruled that the Texas Commission on Environmental Quality (“TCEQ”) and its officials violated Section 9 of the Endangered Species Act (“ESA”) by causing an unlawful “take” of endangered Whooping Cranes. In The Aransas Project v. Shaw, No. 2:10-cv-075 (S.D. Tex. Mar. 11, 2013), the district court ruled that TCEQ and other Texas officials caused the death of the endangered Whooping Cranes by not allowing for sufficient freshwater flows in the Guadalupe and San Antonio river systems. This ruling has wide-ranging implications for any actor who regulates or obtains water within an appropriative water rights regime.

BACKGROUND: In 1967, Whooping Cranes were listed as threatened with extinction in the U.S. See 32 Fed. Reg. 4001 (Mar. 11, 1967). In 1970, Whooping Cranes were listed as endangered. 35 Fed. Reg. 16047 (Oct. 13, 1970). In 1970, both of these classifications were “grandfathered in” by the enactment of the ESA. Shaw at 2.

The Aransas National Wildlife Refuge (the “Refuge”) is located midway along the Texas Gulf Coast roughly 140 miles south of Houston and 50 miles north of Corpus Christi. Shaw at 2. The world’s only self-sustaining wild Whooping Crane flock (known as the “AWB flock”) calls the Refuge home during the winter. As a result, the estuarine areas in the Refuge have been designated as the AWB flock’s critical winter habitat. Shaw at 2.

The State of Texas manages the freshwater that flows into the Refuge through a permit system regulated by TCEQ. See Shaw at 3. Generally, freshwater regulated by TCEQ flows into the Refuge from the Guadalupe and San Antonio Rivers. Shaw at 3. In the winter of 2008-2009, a severe drought gripped the Refuge. As freshwater flows into the Refuge decreased, salinity levels in the estuary increased drastically reducing the number of blue crabs and wolfberries in the Refuge. See Shaw at 3. Since blue crabs and wolfberries form the basis of the AWB cranes’ diet, the food shortage led to bird emaciation and an overall decline in bird health. Shaw at 3. At least 23 AWB cranes (8.5% of the total population) died that winter and an additional 34 did not return to the Refuge the following Spring. Shaw at 3.

On March 10, 2010, the Aransas Project (“TAP”), a group of Texas nonprofit corporations, businesses and municipalities, filed a lawsuit alleging that TCEQ and other Texas regulatory officials had violated Section 9 of the ESA by failing to properly manage freshwater inflows into the Guadalupe and San Antonio bays during the 2008-2009 winter, thus causing an unlawful “take” of AWB cranes. Shaw at 4. The lawsuit was filed after TAP requested a permit from TCEQ allowing for a certain amount of freshwater to remain in the Guadalupe and San Antonio river systems so that it may reach the Refuge. TCEQ denied the permit.

TAP contended that, by not releasing more freshwater into the Refuge during the winter drought, TCEQ’s water management practices caused high salinity levels in the critical winter habitat of the AWB cranes, thus decimating the cranes’ food supply and causing the death of at least 23 endangered Whooping Cranes. Shaw at 4. According to TAP, the death of the cranes constituted a “take” under the ESA. Shaw at 4.

ISSUE: Whether TCEQ’s water permitting regime allowed for an unlawful “take” of endangered Whooping Cranes under the ESA by depriving their critical habitat of freshwater flow in the winter of 2008-2009.

OPINION AND REASONING: Judge Janis Jack delivered the lengthy opinion of the Southern District of Texas. The district court reasoned that “the waters of (Texas) are held in trust for the public.” Shaw at 16. As such, the court ruled that not only did the ESA mandate federal court intervention in this case, but Texas’ own water laws and policies also warranted oversight. Shaw at 16. The court asserted that Texas law specifically authorized TCEQ to manage the State’s surface waters in a manner consistent with conservation and that TCEQ had failed to do so to the detriment of the Whooping Cranes. Shaw at 16.

Through extensive expert testimony, TAP was able to show that TCEQ regulated surface water capture and use in Texas primarily through its permitting program. Shaw at 12-14. Furthermore, by not increasing the freshwater inflows during the winter drought, the court reasoned that TCEQ had ignored the plight of the Whooping Cranes in its decision not to increase freshwater inflows into the Refuge. Texas law, the court surmised, mandated that TCEQ manage Texas surface waters in a manner consistent with conservation. In failing to do so, TCEQ proximately caused an unlawful take of 23 endangered Whooping Cranes in contravention of the ESA according to the court. Shaw at 1.

The court also determined that “the ESA prohibitions apply to state agencies where their regulatory programs approve actions by third parties that contribute to causing take.” Shaw at 12. This language in the opinion broadens the scope of parties who could conceivably be subjected to ESA prohibitions under the Texas permitting scheme.

Also of note, the court ruled that TAP had standing to sue because it had demonstrated a causal relationship between TCEQ’s water management practices and the lack of freshwater flow into the Refuge. Shaw at 19.

The court enjoined TCEQ from approving or granting any new water permits in the Guadalupe and San Antonio Rivers until it can provide “reasonable assurances that these permits will not ‘take’ Whooping Cranes in violation of the ESA.” Shaw at 122. The court ordered the agency to prepare both an incidental take permit under Section 10 of the ESA and a habitat conservation plan (“HCP”). The HCP would require TCEQ to address freshwater flows and mitigate any adverse impacts of water diversions relating to the Whooping Cranes. The HCP must identify how TCEQ plans to achieve its goals by relating freshwater inflows to the protection of the AWB cranes. See generally Shaw at 120-122.

HOLDING:The district court held that TCEQ committed an unlawful “taking” of 23 endangered Whooping Cranes by not increasing freshwater inflows during a severe drought in the cranes’ critical habitat.

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Texas Attorney General Greg Abbott filed a motion for an emergency stay of the district court’s judgment with the U.S. Court of Appeals for the Fifth Circuit in New Orleans on March 20, 2013. Six days later, the Fifth Circuit granted the emergency stay and ordered an expedited appeal. See Andrew Harris, Texas Wins Stay in Whooping Cranes Case from U.S. Court, Bloomberg News (Mar. 26, 2013).

Oral argument on the appeal before the Fifth Circuit is scheduled to begin in August.

Post by Cameron L. Long

Polar Bear Listing Upheld by D.C. Circuit

April 7, 2013

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Photo by Scott Schliebe/USFWS.

Photo by Scott Schliebe/USFWS.

On March 1, 2013, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court decision upholding the listing of the polar bear as a threatened species by the U.S. Fish and Wildlife Service (“FWS”). In the case of In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, No. 11-5219 (Mar. 1, 2013), the D.C. Circuit agreed with the district court in finding that the FWS’s Listing Rule was not arbitrary or capricious and was, in fact, a “product of reasoned decisionmaking.” In re Polar Bear at 3. The contentious Listing Rule promulgated by FWS cited global climate change as a contributing factor to the listing of the polar bear as threatened. DetSee generally Dermination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range (“Listing Rule”), 73 Fed. Reg. 28,212 (May 15, 2008).

BACKGROUND: In 2005, the Center for Biological Diversity petitioned the Secretary of the Interior and FWS to list the polar bear under the Endangered Species Act (“ESA”). In re Polar Bear at 2. After a three-year rulemaking process, FWS found that, due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future. See generally Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range (“Listing Rule”), 73 Fed. Reg. 28,212 (May 15, 2008).

When FWS concluded that the polar bear should be listed as a threatened species, a number of industry groups, environmental organizations, and states challenged the Listing Rule as either overly restrictive or insufficiently protective of the polar bear. In re Polar Bear at 3. These challenges were consolidated as a Multidistrict Litigation case in the U.S. District Court for the District of Columbia. In re Polar Bear at 3. After a hearing on the parties’ submissions, the District Court granted summary judgment to FWS and rejected all challenges to the Listing Rule. See generally In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 794 F. Supp. 2d 65 (D.D.C. 2011).

The coalition of industry groups, environmental organizations and states appealed the decision insisting that the Listing Rule was arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and that FWS’s action should be reversed because of a series of deficiencies in the rulemaking process and the Listing Rule itself. In re Polar Bear at 3.

ISSUE: Whether the FWS Listing Rule listing the polar bear as a threatened species was arbitrary and capricious under the APA.

OPINION AND REASONING: The D.C. Circuit noted that its principal responsibility was to determine whether the Listing Rule was a product of reasoned decisionmaking in light of the record that FWS considered in promulgating its rule. In re Polar Bear at 3.

In reviewing that record, the Court found significant that those opposing FWS’s rule had not pointed to any mistakes in FWS’s reasoning nor had they claimed that any data or studies had been overlooked. In re Polar Bear at 3.

Furthermore, the Court pointed out that FWS’s findings on both climate change science and polar bear biology had not been challenged by any of the industry groups, environmental organizations or states. In re Polar Bear at 15. Essentially, the FWS Listing Rule rested on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. In re Polar Bear at 14.

Absent any prior contention from the other side, the Court reasoned that the principal claim against FWS was that it had misinterpreted and misapplied the record before it. In re Polar Bear at 13.
The Court stated that it was guided by the Supreme Court’s admonition that “a court is not to substitute its judgment for that of the agency,” particularly in cases where the issues “require a high level of technical expertise.” In re Polar Bear at 4 citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) and Marsh v. Or. Natural Res. Council 490 U.S. 360, 377 (1989).

HOLDING: The D.C. Circuit held that the FWS Listing Rule was not arbitrary and capricious since, based on “the evident thoroughness and care of FWS’s explanation for its decision,” it was obvious that the challenges brought against the Listing Rule “amount to nothing more than competing views about policy and science.” In re Polar Bear at 4 citing the District Court decision in In re Polar Bear, 794 F. Supp. 2d at 69. The judgment upholding FWS’s Listing Rule was affirmed.

Post by Cameron L. Long

Information Gathering Open for the Fisher

March 27, 2013

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78 Fed. Reg. 16828/ Vol. 78, No. 53/ Tuesday, March 19, 2013/Rules and Regulations/Department of Interior/Fish and Wildlife Service

Background: On April 8, 2004, the Fish and Wildlife Service (“FWS”) issued a 12-month finding explaining that the fisher (Martes pennanti) warranted listing, but would be precluded from listing  because of higher priorities. Though FWS has monitored the fisher since this finding as required by the Endangered Species Act (“ESA”), their actions were challenged by the Center for Biological Diversity in a lawsuit. This lawsuit resulted in a settlement agreement, “under which the Service agreed to submit a proposed rule or a not-warranted finding to the Federal Register for the West Coast DPS of the fisher no later than the end of Fiscal Year 2014….”

Request: This federal register announcement is for the purpose of requesting information so that FWS can complete a status review on the West Coast distinct population segment (“DPS”) of the fisher and determine whether listing as either threatened or endangered is warranted at this time. Generally, fish and wildlife is seeking, during this 45 day information gathering period, information on the fisher’s biological status and the current forces threatening the West Coast DPS.

Specifically, the FWS seeks information on the fisher’s current and historic status, distribution, and biological and ecological requirements. FWS also seeks information as to any threats currently faced by the fisher. These threats include the factors required under the ESA to be considered, including overutilization, disease and predation, and habitat destruction. Finally, the FWS seeks information that can assist them in designating critical habitat for the fisher. Pursuant to the settlement agreement, if FWS determines that listing is warranted, they are required to simultaneously designate critical habitat for the West Coast DPS of the fisher.

Action: Notice of initiation of status review.

Excerpt:  “The status review will include analysis of whether the West Coast DPS of the fisher warrants listing as endangered or threatened under the Endangered Species Act of 1973, as amended (Act).”

Post By: Kristen N. King Jaiven

fisher_cr

“The fisher is light brown to dark blackish-brown, with the face, neck, and shoulders sometimes being slightly gray.  The chest and underside often has irregular white patches.  The fisher has a long body with short legs and a long bushy tail.  At 6.6 to 13.2 pounds, male fishers   weigh about twice as much as females (3.3 to 5.5 pounds).” See: FWS

Designation of Critical Habitat for the Southern Selkirk Mountains Population of Woodland Caribou

December 11, 2012

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77 Fed. Reg. 71041/ Vol. 77, No. 229/ Wednesday, November 28, 2012/Rules and Regulations/Department of Interior/ Fish and Wildlife Service

Action:  Final Rule.

Background: The southern Selkirk Mountains population of woodland caribou (“Caribou”) was listed as an endangered species in 1984. This particular population of caribou is of the mountain caribou ecotype occurring in high-elevations. When the Caribou was originally listed, critical habitat was not designated because there was concern the designation could result in an increase in poaching; however, there is a management and recovery plan in place for the caribou. The decision to designate critical habitat for the Caribou at this time, however, is the result of a stipulated settlement agreement. In 2002, the Defenders of Wildlife, Lands Council, Selkirk Conservation Alliance, and the Center for Biological Diversity petitioned Fish and Wildlife Service (“FWS”) to designate critical habitat for the Caribou. After the FWS did not address the request due to budget constraints, the petitioners brought an action under the Federal Administrative Procedure Act. This action resulted in the stipulated settlement agreement that required FWS to take action to designate critical habitat for the Caribou. A proposed rule was published in the Federal Register on November 30, 2011.

Summary:  This final rule, which modifies the proposed rule, is the result of an extensive notice and comment period that included the review of thousands of comments, meetings, and public hearings. Participants included scientists; experts; federal, state, and local government officials; Native American tribes, including the Kootenai Tribe of Idaho and the Kalispel Tribe of Indians; Canadian Government officials; the general public; and nongovernmental organizations. FWS received a variety of input on many matters pertaining to the Caribou; however, this final rule limits its review just to comments received pertaining to the designation of critical habitat and economic concerns.

Evaluation of Comments: This final rule discusses 74 areas that the FWS received comments on. The types of peer review comments received ranged from critiques of the particular characterizations of seasonal, habitat, and behavioral classifications to critiques of the entire area chosen for critical habitat designation.  Comments received from the Native American tribes included concerns over the the adequacy of FWS’s efforts to consult with the tribes in making decisions regarding the Caribou’s recovery. Environment Canada’s Canadian Wildlife Service expressed support of FWS’s efforts in its comments. The Public comments were grounded in concerns over the adequacy of FWS’s public outreach and consultation with local government efforts throughout the development process and the effects of this final rule on recreation. Federal agencies, including The U.S. Forest Service, commented to stress concerns over the connection between forest management practices and the critical habitat designation. Finally, the rule discusses the comments received in response to FWS’s economic analysis stressing concerns over the impact of the designation on revenues from recreation and timber sales and the increase forest management costs associated with the critical habitat designation.

After reviewing the public comments, FWS revised its draft final rule designating critical habitat for the Caribou. Most significant is FWS’s decision to reduce “…approximately 345,552 ac (139,840 ha) from the critical habitat originally proposed for designation (76 FR 74018, November 30, 2011); and [to make] a 1,000-ft (about 300-m) change in elevation from 4,000 ft (1,220 m) in the proposed rule, to an elevation at or above 5,000 ft (1,520 m)…”

 Critical Habitat Designation: The Endangered Species Act (“ESA”) requires the designation of critical habitat for listed species. Critical Habitat is defined by the ESA as,

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features(a) Essential to the conservation of the species and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Critical Habitat designation restricts use in the protected areas that could result in destruction or adverse modification to the designated area. This designation provides a level of protection to endangered species in addition to protections applied directly to species, including the ESA’s take restrictions. To make the critical habitat determination, FWS reviewed the physical and biological features of the area the Caribou occupies.

…These [features] include[d], but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

For example, Arboreal hair lichens are a critical food source for the Caribou in the winter and are found in high-elevation forests. FWS also considered special management considerations to reduce threats from forest management practices and recreational activities. Finally, FWS considered the land and resourse management plans in the host forests.

This critical habitat designation consists of 30,010 acres of Federal land in Boundary County, Idaho, and Pend Oreille County, Washington at an elevation of approximately 5,000 feet. The Selkirk Mountains Critical Habitat Unit designated for critical habitat of the Caribou is located on federal lands within the Colville and Idaho Panhandle National Forests. This land is traditionally used for forest and recreational activities.

Excerpt: All of the area being designated as critical habitat is federally owned lands under management of the U.S. Forest Service (USFS). The areas being designated were occupied at the time of listing under the Act (49 FR 7390: February 29, 1984), and are essential to the conservation of the southern Selkirk Mountains population of woodland caribou.”

Final rule effective: December 28, 2012

doc3662

Photo Credit Fish and Wildlife Service

Post By: Kristen N. King

Newsing , November 2012 – Part 2

December 3, 2012

earthblawg

National:

The U.S. Fish and Wildlife service announced November 27, 2012 it is reviewing the status of the African lion (Panthera leo leo) for protection under the ESA.  It has opened it’s 60 day comment period.  In March, 2011, a petition was filed by the International Fund for Animal Welfare, Humane Society of the United States, Humane Society International, Born Free Foundation/Born Free USA, Defenders of Wildlife and Fund for Animals.  (Click here to read the petition).  

African lioness(Photo courtesy FWS)

African lioness
(Photo courtesy FWS)

This triggers a status review where the Services seeks scientific, commercial and other information from the public, governmental agencies, scientific community, industry and other parties.  CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) is also conducting a review of the African lion.  The U.S. is a signatory to CITES.

According to the petition, even though the U.S. is not part of the lion’s range, it should be listed as endangered in order to prohibit import into the U.S. of lion specimens.  The petition alleges that the U.S. is the world’s largest importer of African lions and their parts, including hunting trophies,  lion skins and claws.

On November 26, 2012, NOAA (National Oceanic and Atmospheric Agency) announced that it would review the status of the killer whales currently listed under the ESA. A petition was filed by  Pacific Legal Foundation, on behalf of the agricultural industry,  seeking removal of the protection for the whales.  (Click here to read the petition). They claim the  regulations to protect the salmon, a food source for the whales, creates an economic burden. When the whales were listed, irrigation had to be reduced to protect fish, but farmers claim they cannot expand their farming operations due to lack of water. The whales have been listed as endangered  since 2005, when it was believed there were only 86 southern resident killer whales in existence.  The petition claims this whale is not a distinct population segment as required by 16 U.S.C. ss1532(16), but rather is the same as other Orcas in the rest of the world.  One of the petitioners, Empresas del Bosque , farms 2200 acres of land but claims to have idled 900 acres in the San Joaquin Valley, and lost revenue of $l.5 million since 2009 due to dramatic water reductions it claims are attributable to this listing.

Orca 'Killer' Whales(Photo courtesy of Robert Pitman, NOAA, CP, Ap, The Canadian Press

Orca ‘Killer’ Whales
(Photo courtesy of Robert Pitman, NOAA, CP, Ap, The Canadian Press

Sarah Uhlemann, attorney for the Center for Biological Diversity, claims the species still faces threats and it is a distinct population.   Michael Healey, retired marine biologist and professor emeritus at the Univ. of British Columbia, claims the problem is reflective of the long history of limited water supply in California.

The City of Austin, TX claims it’s ready for restrictions that may be required if four salamander species that inhabit Central Texas are added to the endangered species list. 

At least, that’s the report of The Daily Texan, the university newspaper.  The Fish and Wildlife Service is proposing that four different species of salamanders be added to the endangered species list.  (Click here to review the proposed rule.)   The salamanders are the Austin Blind salamander, the Jollyville Plateau salamander, the Georgetown salamander, and the Salado salamander.  The salamanders are neotenic  (do not transform into terrestrial salamanders).  They are approximately 2″ long and  inhabit aquatic habitats, springs and wet caves.  They are found to inhabit the Edwards Aquifer, one of the primary sources of water supply in the area, and inhabit both Travis County (where Austin is located) as well as Bell and Williamson counties.

Austin blind salamander(Photo courtesy FWS)

Austin blind salamander
(Photo courtesy FWS)

The Austin blind salamander also inhabits Barton Springs in Texas, and thus found in Austin’s Zilker Park.  Zilker park is a 351 acre park in Austin, complete with a swimming pool fed by the freezing waters of Barton Springs.

The primary reasons for the proposed listing are loss of habitat and lack of any current regulatory measures to protect the salamanders.  The increase in urbanization in  Austin and the  surrounding area (Austin grew from a population of 251,808 in l970 to 735,088 in 2007 — a 192% increase) were also cited.  Degradation of the stream habitat from pollutants and other storm runoff were also cited, as well as feral hogs digging in the areas and disturbing the soil and plant life, alternating flooding and droughts, and climate change.

The comment period has closed, but information can be obtained from:http://www.fws.gov/southwest/es/AustinTexas/ESA_Sp_Salamanders.html.

In the November Newsing, Part 1, I reported that the Selkirk Caribou was facing a delisting petition.  Further, in 2011, the FWS had proposed a designation of critical habitat of 375,562 acres.  The final rule has been issued on November 28, 2012, which reduced the amount of land to be set aside by more than 90%, to just 30,000 acres.  A mere 27 Woodland Caribou are thought to be living in the Selkirk Mountains.  Brian Holt, a wildlife biologist for the FWS said the downsizing was based on a revised estimate of occupied habitat by a much reduced herd.    Basically, the thinking appears to be the Selkirk Caribou is already toast, so why bother.

On November 30, 2012, NOAA, announced its proposal for ESA listings for 66 coral species, 59 in the Pacific and 7 in the Caribbean.  This action was taken after receipt of a petition by the Center for Biological Diversity (CBD) to list 83 species of reef-building corals and after NOAA convened a Biological Review Team to perform a status review of the species.  (Click here to review the press release)

Healthy coral which provides home and shelter to marine life.(Photo courtesy of nwf.org)

Healthy coral which provides home and shelter to marine life.
(Photo courtesy of nwf.org)

The species of coral under consideration are found throughout the Caribbean, western Atlantic, Gulf of Mexico, Indo-Pacific, and Pacific Oceans.  They are found in 84 countries.

Global climate change is listed (read the proposed listing here) as the most important and severe threat to the coral species.  The increase in greenhouse gas concentrations and atmospheric warming affect the biological processes in coral, including secretion of their skeletons.  Considered to be of medium influence in leading to extinction of coral are fishing, sea level rise, and water quality.  Ocean warming is one of the effects of climate change and one of the most severe in terms of coral.  The year 2009 had the warmest ocean temperatures recorded up to that date, according to the Center for Biological Diversity.  Ocean warming leads to bleaching,  a process where corals expel their symbiotic zooxanthellae in response to stress.

Bleached coral -- may result from ocean warming. (Photo courtesy of NOAA)

Bleached coral — may result from ocean warming.
(Photo courtesy of NOAA)

Coral can withstand mild to moderate bleaching, but not severe, repeated, lengthy bleaching.  That can lead to colony death. Ocean acidification causes the coral to not grow.  It is expected the threats to these coral species will continue.

Coral reefs, of course, are vital to the oceans’ ecosystems to fish and marine species.  They are also important to the U.S. economy.  NOAA estimates the annual commercial value of U.S. fisheries from coral reefs to be $l00 million.

Public hearings will be held in 2012 and 2013 and this information , or  directions on how to submit comments,  can be obtained at this web page:  http://www.nmfs.noaa.gov/stories/2012/11/82corals.html .

Florida:

Schools of catfish surfaced just before Thanksgiving in waters near Marco Island and in Henderson Creek, as reported by the naplesnews.com.  Tissue samples of the fish were sent to the Fish and Wildlife Research Institute, but it could take weeks to get test results.  Water samples were taken from Henderson Creek, but nothing was out of the ordinary.  Samples were taken in several different areas along various waters.

Catfish are bottom dwellers where red tide (a type of algae that emits a toxin that kills marine life and can cause respiratory irritation to humans) frequently settles.

No warnings have been issued by the Department of Health.

Go see the Florida panther while you still canThis cat may not be around much longer to impress and amaze you and to enjoy its beauty and its agility.   The Busch Wildlife Sanctuary, located in Jupiter, FL currently has four Florida panthers in residence.  Check out their address and hours here:  http://www.buschwildlife.com/hours.html.

Panthers are getting killed left and right.  The 24th panther has just been killed this year, found dead on the side of a Collier county road.  The week before, two panthers were found killed on a road. One was a mere cub — 2-3 months old;

Panther Kittens -- A 2-3 mo. old recently killed on a FL highway (Photo courtesy of FWS)

Panther Kittens — A 2-3 mo. old was recently killed on a FL highway (Photo courtesy of FWS)

a 3 year old male; and a 4-5 yr. old male.   Collisions with vehicles are one of their biggest threats as the modern world continues to close in on them. All three were uncollared. Approximately 30 panthers are presently collared and being tracked for research purposes by  state and National Park Service biologists.

The Florida panther has been listed on the ESA as endangered since the law was passed in 1973.  It was one of the first species to be listed.  It was also protected as an endangered species by the predecessor law, Endangered Species Preservation Act (ESPA) Pub. Law no. 89-669, 80 Stat 926 (l966).  However, the panther’s  listing was before critical habitat  designation was mandatory.  When the ESA was amended in l978, the law indicated that for the species that were already listed,  critical habitat may be established.  The cats live and roam now only in southwest Florida, i.e. Everglades and Collier county.  The problem is , this area is becoming more and more urbanized, and the cat is running out of habitat.

Florida panther - only 80-100 survive; 24 died this year in collisions with cars.

Florida panther – only 80-100 survive; 24 died this year in collisions with cars.

A male panther needs about 200 sq. miles for his home range and a female, about 75 sq. miles.  It is estimated there are only 80-100 cats remaining.

The 11th Circuit , on October 25, 2012, issued a unanimous opinion rejecting the Conservancy of Southwest Florida’s  (and other environmental groups) petition to require the FWS to designate critical habitat for the panther. ( Read the Court’s opinion here) 

The Court basically found the Agency acted within its discretion and in accord with the law in refusing to designate critical habitat for the panther.

To learn more about the Florida panther, check out these sites:http://www.fws.gov/floridapanther/panther_faq.html ;http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A008#recovery; and http://www.floridapanther.org/panther_facts.html

Posted by Lori Bailey-Bertrand

Commercial Enough?: Whether Protection of Endangered Species is within Congress’ Commerce Clause Powers

November 11, 2012

earthblawg

Congress first acted on the threat to species in 1900 with the enactment of the Lacey Act.  The Lacey Act protects both plants and wildlife by creating civil and criminal penalties for a wide array of violations.  Most notably, the Act prohibits trade in wildlife, fish, and plants that have been illegally taken, possessed, transported or sold. The Act makes it a separate offense to take, possess, transport, or sell wildlife that has been taken in violation of those laws. The Act also prohibits the falsification of documents for most shipments of wildlife (a criminal penalty) and prohibits the failure to mark wildlife shipments (a civil penalty). The Act is administered by the Departments of the Interior, Commerce, and Agriculture through their respective agencies (U.S. Fish and Wildlife Service, National Marine Fisheries Service, and Animal and Plant Health Inspection Service). Lacey Act, 16 U.S.C. §§ 3371-3378 (1988).

Congress enacted the Lacey Act under the Commerce Clause of the U.S. Constitution. The Commerce Clause, Article 8 Section 8 Clause 3 of the Constitution, grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Commerce Clause is one of Congress’ enumerated powers and he Supreme Court of the United States (“SCOTUS”) has interpreted it as an express grant of authority to Congress and an affirmative limitation on the rights of the states to regulate commerce within their own borders. The Lacey Act fell within Congress’ commerce power because hunted game traveled over state lines, and because once the game was unlawfully killed in one state and brought to another, the receiving state had no authority to prohibit its sale.  Although the Lacey Act has needed strong state laws to be effective, the Act’s focus on the prohibition of interstate and international trafficking in protected wildlife still places this type of legislation within the realm of the federal government.

The legislative history of the Endangered Species Act (“ESA”) shows the express intent of Congress to keep protection of species within its enumerated rights under the Commerce Clause. The first form of the ESA came in 1966, with Congress’ enactment of the Endangered Species Preservation Act. This Act authorized the Secretary of Interior to make a list of endangered fish and wildlife and allowed the U.S. Fish and Wildlife Service (“FWS”) to buy habitat for those listed species. In 1969, Congress passed the Endangered Species Conservation Act, which prohibited the import of products made from such species. Under President Nixon, Congress passes ESA in 1973. This federal law introduced the modern concepts of ESA, notably the differentiation of species as threatened or endangered, illegalization of “taking” listed species and the authorization of unlimited funding to protect listed species. The 1973 ESA, and its subsequent amendments, have locked in protection of endangered species under the federal government’s wing.

The issue of whether the ESA is within the powers of Congress has been addressed by many scholars and the judiciary. Their arguments are usually surrounded by famous Supreme Court of the United States decisions such as U.S. v. Lopez and U.S. v. Morrison. In 1995, the SCOTUS read Congress’ Commerce Clause powers very narrowly in the Lopez decision. Justice Rehnquist, delivering the opinion for the Court, held that Congress’ power to regulate under the Commerce Clause is limited to economic activity substantially affecting interstate commerce. Only five years later, Morrison recalled Lopez and reiterated that there are three broad categories upon which Congress may regulate activity under the Commerce Clause: (1) the use of channels of interstate commerce (citing Heart of Atlanta Motel v. U.S., 379 U.S. 241, 256 (1964)); (2) instrumentalities of interstate commerce, or persons or things in interstate commerce (citing Shreveport Rate Cases, 234 U.S. 342 (1914)); and (3) activities substantially affecting interstate commerce (citing N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 25 (1937)).

SCOTUS used the narrow economic interpretation of the Lopez and Morrison decisions to state that Congress is within its Commerce Clause authority to regulate endangered species. For example, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, Justice Rehnquist, writing for the majority, analyzed the power of Congress to regulate intrastate waters to protect migratory birds under Morrison’s third category. Further, it held that in order to constitute a proper exercise of Congress’ power over intrastate activities that “substantially affect” interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect. In the case of the migratory bird, the aggregate effect of the destruction of their natural habitat on interstate commerce was substantial because millions of Americans cross state lines and spend a over a billion dollar to hunt and observe migratory birds. This decision broadened the scope of Commerce Clause and gave the basis to formulate arguments on how the threat to species could have economic effects on interstate commerce. Many other courts have asserted the power of Congress to regulate endangered and threatened species under the ESA.

But the ESA is not limited to protecting species that have such great influence on interstate commerce. Congress also regulates the little-known and exclusively local species. How can the federal government regulate the protection of such species without exceeding its constitutional powers?

Whether Congress’ Commerce Clause powers can extend to local species has been addressed by SCOTUS. Previous to 1937, Congress could only use its Commerce Clause powers if the regulated activity directly affected interstate commerce. However, SCOTUS reversed this view in Jones & Laughlin Steel Corp., where it held that Congress’ Commerce Clause power is plenary, so long as Congress is regulating to protect interstate commerce from burdens and obstructions. This decision allowed regulation if an argument could be made that the regulated activity had an indirect effect on interstate commerce. Along these lines, SCOTUS also found in Wickard v. Filburn that Congress’s Commerce Clause had authority to regulate wholly intrastate activities that, collectively, could affect interstate commerce.

In 2005, both the majority opinion and Scalia’s concurring opinion in Gonzales v. Raich provide an explanation. The majority in Gonzales found that prohibition of intrastate growth and use of marijuana was rationally related to regulation of interstate commerce in marijuana. Scalia went further and used the Necessary and Proper Clause of the Constitution to base his argument that Congress had the authority to regulate intrastate harms that do not directly affect commerce if they indirectly and in the aggregate substantially affect commerce.

Of course, the decision in Gonzales provide an easier way to explain how Congress can regulate the protection of coral reefs under the ESA. Coral reefs, although found in the coasts of certain States, affect interstate commerce. Thousands of people travel across state lines every year to scuba dive and enjoy the biodiversity of coral reefs. Also, coral reefs are often harvested and sold across state lines for the marine aquarium trade. As a result, coral reefs have a huge impact to a State’s economy. It is understandable for Congress to be able to regulate coral reef protection, whether analyzed under Lopez, Morisson, or Gonzales.

But what happens to the less popular and local species? For example, could we make an argument that Congress could regulate the rare Florida Bonneted Bat?

Description: This is Florida’s largest bat. It has large broad ears that slant forward over the eyes from which it gets the common name of “bonneted bat.”
Wingspan: 19-21 inches
Body length: 3.3-4.3 inches
Weight: 1.2-1.7 ounces
Florida roosting preferences: Colonial. Roosts in cliff crevices, tree cavities and buildings. In 2003 a small colony was found roosting in a bat house in Fort Myers.
Florida status: Rare. Classified as Endangered by the Florida Fish and Wildlife Conservation Commission.
Florida range: Southern portion of Florida, excluding the Florida Keys
Note:  Species unique to Florida.
Copyright Florida Bat Conservancy 2005
Photo Credit: WebEcoist

Analyzed under the three categories mentioned in Morrison and Lopez, the bat cannot be said to be within Congress’ Commerce Clause powers. Regulating the protection of the bat does not involve the use of channels of interstate commerce or instrumentalities of interstate commerce. Further, the bat does not substantially affect interstate commerce. The bat cannot be said to be a tourist attraction since it was thought extinct until 2002 and only a small colony has been found in Florida ever since. However, Gonzales was clear in stating that the noncommercial value and intrastate nature of the local/non-commercial species does not matter if the ESA as a whole bears a substantial relationship to interstate commerce. If seen under Gonzales, protecting bats is rationally related to interstate commerce because regulating all endangered species in the aggregate just makes sense.

Arguing in the contrary, Gonzales should not apply to protection of species, since it does not have such an obvious interstate, commercial and economic characteristics as marijuana does. Also, we could say that Congress should be able to regulate only those species that economically affect interstate commerce, leaving intrastate species within a State’s 10th Amendment powers to regulate. In that case, Congress would be able to regulate coral reefs but let the State of Florida protect the Florida Bonneted Bat. As it is expected, this could cause serious issues. First, protection of endangered and threatened species would not be consistent among the States. Endangered or threatened species in one State would have more or less protection than similarly situated species in another State because the one would have more financial resources than the other. Of course, this would lead to environmental groups pressing their local and state governments to offer the same protection as their more affluent sister States. Second, it would create enormous confusion as to which species are regulated by which piece of legislation. Third, this would require an additional requirement to listing a species under the ESA, that is, to provide scientific information to prove that the proposed species are in fact “affecting interstate commerce,” or, if seen under the State version of the ESA, that the species is of intrastate nature. This can not only be increasingly difficult and expensive requirement to fulfill, but also can risk species not being listed because the requirement cannot be met with certainty. This would lead into a fourth issue: what would happen if a local species is transported across state lines or gains celebrity and attract tourists from across state lines? In the latter scenario is hard not to predict litigation to determine whether the state or federal government should govern. The list of issues could go on and on.

The most simple explanation as to why are all species protected by the federal government regardless of their commercial value is that it is just less complicated this way and promotes consistency. It is impossible to determine which species have absolutely no effect on interstate commerce at all. For example, tourists who go scuba diving may want to see an endangered clown fish swimming around it, or see a Key Deer running by while they drive to the beach. The best approach is to assert that, no matter how rare the species, they are all part of nature’s biodiversity. All species on this earth are somehow interconnected, so it seems sensible to allow one body of government to regulate their protection.

 

Post by: Glorian Maziarka

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