Weekly Newsletter | November 30, 2018
Issues
BLM puts pulled Utah land parcel back on the market. While the Bureau of Land Management (BLM) continues the process of finalizing draft environmental impact statements (EISs) and amendments to resource management plans, questions have arisen about the plan’s status.
Last week, Jenny Marzluf, sage grouse coordinator for the BLM in Wyoming, implied the process was on hold, telling attendants that Deputy Interior Secretary David Bernhardt needed to work out some issues with other states.” BLM, however, refuted Marzluf’s claims with an emailed statement to E&E News from Derrick Henry, a BLM spokesman, stating “The BLM greater sage grouse management plans are still in development.”
The misunderstanding comes as BLM also announced plans to work around a federal court order and offer tens of thousands of acres of greater sage grouse habitat in planned oil and gas lease sales early next year. The agency announced plans to offer more than 170,000 acres of habitat that it pulled from a scheduled December lease sale in Utah. The proposed parcels in the Utah lease sale are now open for a 30-day public comment period running through Dec. 17.
SCOTUS issues long awaited decision on ESA case, limits scope. This week, the Supreme Court (SCOTUS) issued a stunning blow to the scope of the Endangered Species Act (ESA) as it handed down a decision in Weyerhaeuser v. U.S. Fish and Wildlife, a long-fought court battle. The case involves more than 1,500 acres in Louisiana that the government declared “critical habitat” for the dusky gopher frog, which is protected under the ESA.
A legal battle ensued when the timber company that operates on the land, Weyerhaeuser Co, sued on the sensible grounds that the frog hasn’t been seen in the area for about five decades, and it can’t survive on land without clearing forest canopy. Roughly 100 dusky gopher frogs remain and live only in a single pond in a wooded area nearby in Mississippi. Weyerhaeuser argued that, ultimately, the Louisiana land can’t be critical habitat if the creature would die on arrival.
In an 8-0 decision written by Chief Justice John Roberts, the court threw out a 2016 ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals that had favored the U.S. Fish and Wildlife Service, finding the lower court gave the government too much leeway. Roberts wrote that the appeals court’s broad definition of what can be defined as “critical habitat” under the Endangered Species Act was incorrect, with chief justice making clear that there are limits on the scope of government authority to make such determinations.
The Chief Justice also said the challengers should be allowed to contest whether the government conducted a rigorous analysis of the costs and benefits when designating the land as critical habitat. Weyerhaeuser has said that, among other things, the government did not account for the costs of planting pine trees that would be required for the frogs to flourish.
In the end, the justices did not decide whether the private Louisiana area could be a protected habitat or not. Rather, they sent the case back to the 5th Circuit lower to reconsider. Justice Brett Kavanaugh, who was not confirmed in time for Oct. 1 oral arguments, did not participate.
In the News
Fla. panther habitat plan splits environmentalists. E&E News, Sub req’d. An ambitious habitat conservation plan meant to accommodate both property owners and the Florida panther is now illuminating the difficulties in striking a universally acceptable Endangered Species Act compromise. Put another way: You can’t please everyone, especially when it comes to the ESA. Following years of work, the Fish and Wildlife Service is at a crucial turning point for the plan crafted by environmentalists and landowners in Florida’s Collier County. The proposal allows some development and the incidental take of the panther, as well as 18 other protected species, in exchange for the preservation of habitat. “The plan is the result of a novel partnership between eleven private landowners and four leading conservation organizations,” the proposal states. Spelled out over 376 pages, the plan calls for permanently setting aside approximately 107,000 acres as species habitat in southwest Florida. In return, the property owners would be allowed to develop approximately 45,000 acres now primarily devoted to row crops and citrus groves. When built out, the developable land is expected to hold some 91,480 dwelling units that will accommodate 174,000 residents. Some mining will also be allowed. The landowners developed the plan with Defenders of Wildlife, the Florida Wildlife Federation, Audubon Florida and Audubon of the Western Everglades.
Narrow frog ruling reopens endangered species debate. E&E News, Sub req’d. The dusky gopher frog’s long legal journey isn’t over yet. The Supreme Court today remanded a closely watched dispute over the federal government’s power to designate certain critical habitat for the rare Southern amphibian. The 5th U.S. Circuit Court of Appeals will now weigh loaded questions over the meaning of “habitat” and the Fish and Wildlife Service analysis underpinning the agency’s approach to protecting land for the warty frog. The unanimous decision is a narrow victory for private landowners, including timber giant Weyerhaeuser Co., which opposed FWS’s inclusion of their Louisiana property as critical habitat for the species, one of the 100 most endangered in the world. The ruling wipes out a 5th Circuit decision that upheld the habitat designation. While the land protections will remain in place for now, the landowners have an opportunity to make their case to the appeals court that their land doesn’t count as “habitat” for the frog and therefore cannot be included. “The nation’s hardworking property owners can rest easier tonight knowing government-sponsored land grabs just became a lot more difficult,” Pacific Legal Foundation attorney Mark Miller, who represented some of the landowners, said in a statement. Government officials declined to comment on the ruling, but environmentalists who intervened on FWS’s side stressed that the Supreme Court did not actually answer many of the key legal questions in the case.
FWS lists candy darter fish. E&E News, Sub req’d. A tiny colorful fish in Virginia and West Virginia will get federal protections under the Endangered Species Act, the Fish and Wildlife Service decided in a final rule to be published in the Federal Register tomorrow. The candy darter (Etheostoma osburni) is a freshwater fish colored teal, red and orange. Darters in general make up 20 percent of freshwater fish species, but candy darters are only found in the Gauley, Greenbrier and New River watersheds, according to FWS. The species was first described in 1932. Since then, almost half of the 35 known candy darter populations have vanished. It exists in just about half of its historical range in Virginia and West Virginia, according to FWS. The fish are sensitive to warming waters and have taken to crossbreeding with a nonnative species, the variegate darter. FWS said in the rule that the species’ condition is worse than it believed when it proposed the listing in 2017 (Greenwire, Oct. 3, 2017). “Consequently, because the species’ current condition … is more degraded, the species’ future condition is also likely to be further degraded than we had previously estimated,” FWS said in the rule. Conservation groups had petitioned FWS to protect the species in 2010. “Nothing’s sweeter than imperiled animals finally getting help to avoid extinction, so we celebrate the candy darter receiving the Endangered Species Act’s lifesaving protections,” said Tierra Curry, a senior scientist at the Center for Biological Diversity, which was one of the groups involved. “These colorful fish have disappeared from so many streams, but there’s still time to save them.”
Bald eagles see record growth in northern New England. E&E News, Sub req’d. Bald eagles are in the midst of record population growth in northern New England, where America’s national bird could soon find itself removed from all state endangered lists. The eagle was once completely gone from Vermont and New Hampshire and down to just 21 pairs in Maine. But wildlife officials and conservationists in the three states said the bird is repopulating fast, to the point where it has become a threat to rarer species in some areas. Wildlife officials attributed the bird’s comeback to habitat and environmental protection measures, such as the ban on the pesticide DDT, a change that made it easier for birds of prey like eagles to reproduce successfully. The bald eagles’ comeback in northern New England tracks with their population growth elsewhere in North America. Bird counters who participated in the Audubon Society’s annual Christmas bird count were lucky to find 10,000 bald eagles in the U.S. and Canada in the 1980s, according to data collected by the organization. Now the counters routinely find more than 40,000. In Vermont, state biologist John Buck said the eagle might be removed from the state endangered list in the coming years. The bird was removed the federal endangered list more than a decade ago, and it came off state lists in Maine in 2009 and New Hampshire in 2017. “It’s going faster than most people thought it would, the recovery,” said Margaret Fowle, a conservation biologist with Audubon Vermont. “There’s been a consistent upward trend.”
Conservation funding becomes job for next Congress. E&E News, Sub req’d. Past and present state officials preached to the congressional choir yesterday about the need for reliable wildlife conservation funding. In a bipartisan momentum-building exercise, the state-level experts urged members of the Senate Environment and Public Works Committee to invest in the conservation efforts that could keep creatures off the Endangered Species Act list. “To continue their important contribution to conservation, state agencies will need to shore up the logistical and financial underpinnings of the wildlife conservation model,” declared John Kennedy, deputy director of the Wyoming Game and Fish Department. The federal lawmakers needed no convincing. “Our committee has held quite a few hearings this Congress on wildlife management issues,” recounted Sen. Tom Carper (D-Del.). “At each of these hearings, I noticed one major area of agreement — that wildlife conservation is severely underfunded.” State fish and wildlife agencies own, manage or administer nearly 465 million acres of land and 167 million acres of lakes, reservoirs, wetlands and riparian corridors, Kennedy noted. The collective annual budget of state wildlife agencies is $5.6 billion, with more than half the funds derived from hunting- and fishing-related activities. “While these state agencies have the mandate, talent and drive to manage for a vast array of fish and wildlife management challenges, they lack the necessary financial resources to keep pace with the complex and growing scope of critical work,” stated Michael McShane, a board member of Ducks Unlimited.
House passes bill to delist gray wolves. E&E News, Sub req’d. The House today narrowly passed a bill that would remove federal protections for most of the country’s gray wolves under the Endangered Species Act. H.R. 6784, from Rep. Sean Duffy (R-Wis.), would remove the species’ protections in the Lower 48 by the end of fiscal 2019 and block its delisting in Wyoming and the western Great Lakes from further judicial review. It passed 196-180. The vote is a win for agriculture and sportsmen’s groups, which say the predator’s populations have recovered to a point that endangers cattle. “Currently, families living in rural America have no legal actions available to deal with gray wolf attacks due to their federally protected status,” nearly 20 groups wrote in a letter to House Speaker Paul Ryan (R-Wis.) and Majority Leader Kevin McCarthy (R-Calif.). Conservation groups, on the other hand, said that the decision should be left to scientists, not Congress. “This legislation is damaging congressional overstep with literal life-and-death consequences for wolves in the continental United States,” more than 50 groups stated in a letter. “It’s shameful that anti-wildlife politicians in House Republican leadership are using the remaining time in this Congress to attack the Endangered Species Act — the law that saved our national symbol, the bald eagle — and to push legislation to allow gray wolves across our country to be killed,” Marjorie Mulhall, a legislative advocates for Earthjustice, said in a statement. The bill is co-sponsored by Democratic Rep. Collin Peterson of Minnesota and Republican Reps. Cathy McMorris Rodgers and Dan Newhouse of Washington.
