Issues
Congress chastises Interior over transparency flaw. A confidential seven-page memo from the Fish and Wildlife Service (FWS) was recently leaked, revealing an internal recommendation that staffers”withhold” certain documents requested by the public on Endangered Species Act (ESA) decisions in cases where the service can “foresee harm” in future litigation challenging those decisions.
The memo suggests FWS should consider withholding draft “versions of policies and rules”; internal “summaries, analyses, and comparative materials”; internal “briefing documents that address pre-decisional substantive issues”; and “decision meeting notes and summaries, score sheets, and memos to file reflecting substantive deliberation and especially participant names, position, or individual decision recommendations,” as well as other documents in the “administrative record” produced by the service as part of an ESA decision.
While noting “it is important to be transparent about agency decision-making,” the memo also states that FWS has an “obligation” to redact certain information on ESA decisions in order to “protect deliberations relating to those decisions when analysis allows us to reasonably foresee harm from releasing related documents and information.”
A Fish and Wildlife Service spokesman released a statement via email to E&E News saying the “internal memo” is intended only as “guidance” for the staffers with the Ecological Services Program, which administers ESA protections, in order to “ensure accurate and consistent interpretation and application of existing FOIA law by the program that affects how we compile and produce administrative records.”
Arizona Rep. Raúl Grijalva, the ranking Democrat on the House Natural Resources Committee, is pushing Interior Secretary Ryan Zinke to further explain the revelatory memorandum, sending a two-page letter calling on Secretary Zinke to “explain the policy objective of this decision to be less transparent.” The Fish and Wildlife Service declined to comment on Grijalva’s letter.
Lease sales in jeopardy around the country. Bureau of Land Management (BLM) officials are delaying oil and gas lease sales on almost 90 square miles in Montana and North Dakota in response to a court ruling that faulted the Trump administration’s attempts to limit public comment on the sales. This move comes as BLM removes roughly 150,000 acres of Greater sage-grouse habitat from a planned December oil and gas lease sale in Colorado.
BLM says it pulled the grouse habitat from the Montana lease sale — and, at least in part, in Colorado — to comply with a preliminary injunction issued last month by Chief Magistrate Judge Ronald Bush in Idaho, temporarily blocking the agency from implementing elements of a January instruction memorandum that, among other things, shortened public review and protest periods for proposed lease sale parcels.
Bush’s preliminary injunction requires BLM to return to previous standards for public participation — such as 30-day public comment and protest periods that had been shortened — specifically when proposed lease sale parcels intersect with sage grouse planning areas or habitat management areas.
In addition to the decisions in Colorado, North Dakota and Montana, BLM is also considering rescinding an additional 578 parcels that are within, or partially within, 778,312 acres of designated grouse habitat from a planned December lease sale in Wyoming and more than 300,000 acres in Utah and Nevada as well.
In total, 1 million acres or more could be removed from planned December lease sales in the six states.
In the News
Landowners Wonder If Prairie Chicken Conservation Can Keep Up in Competitive Grasslands. KGOU. The silhouettes of a few old oil wells and barns flanking Stanley Barby’s ranch house fade quickly after a short drive down a narrow path in prairie grass tall enough to swat a pickup truck’s side mirrors. Today, the Barby Family owns an ocean of grass in Oklahoma’s Panhandle. The scrubby sandhills are the same ones that greeted Barby’s great-grandfather before statehood when he started what would become a 40,000-acre ranch in a region dubbed No Man’s Land. “I’ve heard the old-timers talk about when they came to this country, and there wasn’t any fences, and there wasn’t any trees, and there wasn’t anything how you’d just almost feel lost,” Barby said. No Man’s Land, it turns out, is also a great home for a lesser prairie chicken — a finicky bird struggling to thrive in increasingly fragile western grasslands. “It’s fun to watch ‘em,” Barby said. “Sometimes they fly, sometimes they don’t. But if they fly they won’t go very far.” Lesser prairie chickens are also considered an indicator species representing the overall health of grasslands, which are increasingly fragmented and slowly vanishing.
Greens sue to protect habitat for Fla. bat. E&E News. Environmentalists want a federal court to force the Trump administration to protect habitat for a rare Florida bat. The Center for Biological Diversity, Tropical Audubon Society and North American Butterfly Association’s Miami Blue Chapter filed a lawsuit today arguing that the Fish and Wildlife Service has violated the Endangered Species Act by failing to designate critical habitat for the Florida bonneted bat. The flying critter, which lives in only about 26 colonies in southern Florida, was listed as endangered in 2013. CBD notes that sea-level rise would exacerbate pressures on the bat, flooding most of its remaining roost sites. “We can’t save Florida bonneted bats without protecting the places where they live and forage,” CBD attorney Rachael Curran said in a statement. “If these bats are to have any chance at surviving sea-level rise, federal wildlife officials need to protect their remaining habitat now.” The lawsuit is in the U.S. District Court for the District of Columbia. FWS does not comment on pending litigation.
Vaquita wins another round in court. E&E News, Sub req’d. Despite objections from the Trump administration, a temporary ban on imports of Mexican seafood caught with gill nets in the Upper Gulf of California will remain in effect. In a ruling yesterday, the U.S. Court of International Trade sided with conservation groups who argued the ban is necessary to prevent the endangered vaquita porpoise from going extinct. The porpoise is the smallest in the world, with only about 15 remaining. The ruling marked another win for the Natural Resources Defense Council, Animal Welfare Institute and Center for Biological Diversity. In March, the environmental groups sued the federal government, arguing that the 1972 Marine Mammal Protection Act applies to both domestic fisheries and foreign fisheries that export products to the United States. In July, Judge Gary Katzmann ordered a preliminary injunction to stop the imports until the case is fully adjudicated. At the same time, the judge denied a motion by the government to dismiss the case. Defendants in the case, including NOAA Fisheries chief Chris Oliver and Commerce Secretary Wilbur Ross, then went back to court, complaining the federal government had suffered “ongoing serious harm” as a result of the injunction. But Katzmann rejected their claim in his latest ruling, writing that the U.S. government had “failed to meet its burden for a stay.” A stay would have blocked the injunction pending the outcome of an appeal.
Court upholds prosecution policy on killing protected wildlife. E&E News, Sub req’d. A federal appeals court yesterday breathed new life into a Justice Department policy that hunters who kill protected wildlife should be prosecuted only if they knew they killed a threatened species. The case concerns DOJ’s “McKittrick Policy,” which says prosecutors must prove that a defendant in a wildlife case knew beyond a reasonable doubt that he or she took an endangered species. Conservation groups challenged the policy, arguing it gave defendants an easy out. Judge David Bury, for the U.S. District Court in Arizona, sided with the groups in June 2017. The George W. Bush appointee held that the policy was “outside the range of prosecutorial authority” granted to DOJ by the Endangered Species Act. The 9th U.S. Circuit Court of Appeals vacated that decision, remanded the case and instructed Bury to dismiss it. In a six-page order, the San Francisco-based 9th Circuit said the conservation groups, WildEarth Guardians and New Mexico Wilderness Alliance, failed to show a concrete injury caused by the McKittrick Policy — namely that throwing it out would result in few endangered wolves being killed.
Judge orders EPA to manage river temps for salmon. E&E News, Sub req’d. A federal judge yesterday ordered EPA to regulate water temperatures in the Columbia and Snake rivers that have caused the deaths of hundreds of thousands of threatened salmon and steelhead. Judge Ricardo Martinez for the federal district court in Seattle said EPA has unlawfully delayed the temperature regulation for 17 years. “EPA has failed to undertake its mandatory duty to issue a temperature [total maximum daily load (TMDL)] under the [Clean Water Act],” Martinez, a George W. Bush appointee, wrote. The Columbia River is the largest river in the Pacific Northwest, with a basin approximately the size of France. The Snake River is its largest tributary. The river system once held the largest salmon populations in the world, with the Snake River historically sustaining a third of those runs. Dams along the rivers and climate change have imperiled many of those salmon and steelhead species. More than a dozen are listed as endangered or threatened, and many are at “high risk” of extinction. At issue in the lawsuit brought by Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources are the rising river temperatures caused by dams and other point-source discharges. The fish require cold water to migrate from the ocean back to the rivers and spawn. When the water is warmer than 68 degrees Fahrenheit, migration becomes difficult. If the temperature exceeds 73 degrees, migration stops altogether.
Plan seeks to protect endangered species in Collier County rural lands. Wink News. Landowners in eastern Collier County want to take thousands of acres of land with the intentions of developing it. The plan also has a conservation element. The Collier County residents want to protect panthers, but the plan has caused considerable controversy. The Conservancy of Southwest Florida hasn’t given its stamp of approval on the development of eastern Collier County. “It’s a mixture of agriculture and natural areas and that really is Collier County’s bread basket,” Nicole Johnson said, who works with the Conservancy of Southwest Florida. “There’s always the concern that the more that we encroach into habitat areas the more potential for human wildlife interactions — negative interactions.” The Golden Gate Estates has had several negative interactions with wildlife and residents. The location is near where landowners want to build next, which is in the rural lands west area that is just east of the Golden Gate Estates and Oil Well Road. The US Fish and Wildlife Service is working with 11 landowners who want to develop up to 45,000 acres of land. It has outlined how they would protect endangered species like the Florida panther. The plan seeks to conserve 107,000 acres of the 152,000 acres it collectively owns. “This is a huge benefit for endangered species and wetlands,” Brad Cornell said, who is on the policy staff for Audubon of the Western Everglades.
Conservationists ask court to step in as red wolf plan looms. E&E News, Sub req’d. Conservationists told a federal judge yesterday that an imminent government plan to shrink the territory of the only red wolves living in the wild would hasten the animal’s extinction in violation of federal law. Lawyers for the Fish and Wildlife Service, however, countered that new rules for the red wolf program, set to be finalized next month, mean that the conservationists’ legal arguments are moot — and that they must file another lawsuit if they want to challenge the new plans. The current lawsuit by the Red Wolf Coalition, Defenders of Wildlife and Animal Welfare Institute argues that the federal government has neglected the wolves in recent years, allowing their population to decline. An estimated 35 wild red wolves remain — all in eastern North Carolina — down from about 120 a decade ago. Another 200 live in captive breeding programs. With the litigation unfolding, FWS announced the new plan in June to limit the wolves’ territory to federal land in just two counties and lift restrictions on killing wolves that stray from that area. The new rules implementing the plan are set to be finalized by Nov. 30. Until then, red wolves are governed by existing rules. One of the lawyers leading the case argued yesterday that the wolf’s decline has been accelerated by federal decisions in recent years to halt releases of captive-born wolves and to abandon efforts to sterilize coyotes that compete for territory.
