Recently in Endangered species Category

Last August then Secretary of Interior Dirk Kempthorne propsed revised rules for implementation of the Endangered Species Act that would have effectively eliminated the requirement for section 7 consultations under the act.¹ Yesterday, Secretary of Commerce Gary Locke and Secretary of the Interior Ken Salazar announced that the Bush/Kempthorne rule would be revoked.

WASHINGTON, D.C. - Secretary of Commerce Gary Locke and Secretary of the Interior Ken Salazar today announced that the two departments are revoking an eleventh-hour Bush administration rule that undermined Endangered Species Act (ESA) protections. Their decision requires federal agencies to once again consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration - the two agencies that administer the ESA - before taking any action that may affect threatened or endangered species.  

"By rolling back this 11th hour regulation, we are ensuring that threatened and endangered species continue to receive the full protection of the law," Salazar said. "Because science must serve as the foundation for decisions we make, federal agencies proposing to take actions that might affect threatened and endangered species will once again have to consult with biologists at the two departments." (from the press release on Interior's website)

Thanks to this decision, we don't need to rely on court challenges to reverse the rule. I am pleased to see the Obama administration reinstate rules that recognize the plain meaning of the words in the ESA.

In August, then Secretary of the Interior Dirk Kempthorne proposed revisions to regulations implementing the Endangered Species Act federal agencies to avoid consultation with the Fish & Wildlife Service when the effects on a listed species or its designated critical habitat "[a]re not capable of being meaningfully identified or detected in a manner that permits evaluation." In late December, Jerry Brown, Attorney General for the State of California, filed suit to block the changes (press release, 30 December 2008).

Last week, Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island joined California's suit (press release, 16 January 2009). From last week's press release:

The lawsuit, which was filed last December in the U.S. District Court for the Northern District of California, alleges that the Bush Administration:

• Violated the Endangered Species Act by adopting regulations that are inconsistent with that statute;
• Violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations; and
• Violated the Administrative Procedures Act by not adequately considering public comments submitted by the Attorney General and numerous other organizations and concerned citizens.

Oregon Attorney General John Kroger had this to say about the suit (source):

"There is nothing more important than the rule of law," Oregon Attorney General John Kroger said. "These backdoor Bush Administration rules violate federal law and harms Oregonians. The Department of Justice will aggressively protect our state in court, especially when our environment and our basic civil rights are threatened."

Kroger said the Bush administration bypassed Congress by instituting these regulations on Dec. 16, "The last possible minute," according to Kroger, "allowing for little congressional input and only a short window for public participation."

Here's hoping that the lawsuit is successful. It's no surprise that the Oregon Attorney General joined the suit. He has a good example of why consultation is needed in his own state.

A little over a month ago AFP reported that a survey of gorilla populations in Congo found five newborns in one group. The park director, Emmanuel de Merode, had to negotiate directly with rebel leader Laurent Nkunda to survey the population.

Today's Washington Post carries this report by Todd Pitman of the Associated Press.

Militiamen attacked a national park station in eastern Congo, killing one ranger and wounding another, park officials said Saturday.

So-called Mai Mai militiamen attacked a group of seven rangers in agovernment-controlled sector in the far north of Virunga National park for several hours Thursday night, the park said in a statement.

The assault took place north of Lake Edward around Mount Tshiaberimu, a region home to a critically endangered population of 18 eastern lowland gorillas.

"We are deeply saddened by the loss," said park director Emmanuel de Merode. "The rangers of Virunga are more determined than ever to protect the gorillas in our care and we will ensure that the law is brought to bear on the perpetrators of this attack."

The bravery and dedication of the Virunga National Park rangers is extraordinary. According to Pitman, the Mai Mai militia are government supporters. He does not suggest a motive for the attack.

Virunga National Park is a UNESCO World Heritage site.

Julie MacDonald resigned from her position as deputy assistant secretary of the Department of Interior in April, 2007. In November 2007, the department reversed seven endangered species rulings in which she was involved because they were tainted by political pressure. In December, 2007, the Office of Inspector General announced that it was investigating 18 more.

I just learned that the Office of Inspector General released it's report last month (text PDF available via a link at the OIG web site). Here are a few key conclusions from the report:

• MacDonald's actions "potentially jeopardized the ESA decisional process In 13 of [the 20 Endangered Species Act cases reviewed]."
• "MacDonald's zeal to foster her agenda caused significant harm to the integrity of the ESA
  decision-making process, along with potential harm to FWS' reputation among its state and local sister agencies."
• MacDonald's actions resulted in the untold waste of hundreds of thousands of taxpayer dollars in the form of unnecessary litigation costs defending lawsuits, as well as those costs associated with redoing ESA decisions mandated by the courts.
  

Remember that "narrow regulatory change" to the Endangered Species Act that Secretary of Interior Dirk Kempthorne proposed? Remember how Jerry Brown (Attorney General of California) didn't like it?

Well, buckle your seatbelts. Yesterday Jerry Brown filed suit in federal court to block the changes.¹

SAN FRANCISCO- California Attorney General Edmund G. Brown Jr. has filed suit in federal court to block an "audacious attempt" by the Bush Administration to gut provisions in the Endangered Species Act mandating scientific review of federal agency decisions that may threaten endangered species and their habitat.

"The Bush Administration is seeking to gut the Endangered Species Act on its way out the door," Attorney General Brown said. "This is an audacious attempt to circumvent a time-tested statute that for 35 years has required scientific review of proposed federal agency decisions that affect wildlife."

The new regulations, initially proposed by the Departments of the Interior and Commerce in August 2008 and made final on December 16, largely eliminate a requirement in the Endangered Species Act that mandates scientific review of federal agency decisions that might affect endangered and threatened species and their habitats. (press release from the Office of the Attorney General)

In August we learned that western lowland gorillas are doing better than we thought they were. Today Agence France Press reports that in spite of war on the Congo, a recent survey of gorillas found five newborns in one family group.

BUKIMA, DR Congo (AFP) -- High above the war-battered plain, a giant silverback gorilla ruminatively strips a plant of its leaves with green tombstone teeth. Five females nearby suckle their babies. The world can celebrate a small miracle in eastern Congo.

...

The infants are all war-babies, born in the 15-month period since CNDP rebels wrested control of the eastern gorilla-sector of Virunga national park from government forces in September 2007. The rangers they chased away lost all contact with park, home to 200 of the world's last 700 mountain gorillas.

...

Friday's discovery "doesn't confirm anything about the population as a whole. That's what we're worried about and we'll only know that when the survey is completed in about three weeks' time," cautioned [Park director Emmanuel de] Merode, adding that only two of the seven family groups in the park had been located to date.

To make the survey happen de Merode had to negotiate directly with the rebel leader who had taken control of Virunga national park in 2007. The bravery and dedication of rangers willing to return to the park under these conditions is extraordinary. 

(click here to view)

Mike Keefe Denver Post Nov 22, 2008 EditorialCartoonists.com

The Bush administration proposes to

allow federal agencies to avoid consultation with the Fish & Wildlife Service when the effects on a listed species or its designated critical habitat "[a]re not capable of being meaningfully identified or detected in a manner that permits evaluation." And who gets to make the decision about whether that criterion is met? You guessed it. The agency who wants to do something that will affect a listed species.

The attorney general of California, Jerry Brown, thinks that's a bad idea.

SACRAMENTO - California Attorney General Edmund G. Brown Jr. today warned the U.S. Department of the Interior for a second time that its proposed changes to the Endangered Species Act could put "entire species and ecosystems at risk for complete destruction," after the initial warnings were ignored by the Department. The Attorney General believes that the Bush Administration's proposed changes are in violation of federal law and could gut the scientific review process of the Endangered Species Act.
"In its final days in office, the Bush Administration is trying to make wholesale changes to the Endangered Species Act," Attorney General Brown said. "The Bush Administration wants to eliminate a requirement in the Endangered Species Act that mandates scientific review and consultation of any land-use decision that might threaten endangered species and their habitats. These proposed changes are unlawful, contrary to the National Environmental Policy Act, and put entire species and ecosystems at risk for complete destruction. The Administration should abandon this effort, or at the very least, complete a full Environmental Impact Statement."

You can read the full text of Brown's letter here.

The Bush administration on Monday said that changes it wants to make to endangered species rules before President Bush leaves office will have no significant environmental consequences. (The Associated Press)

If you go to the "Myths and Realities" page on the Department of Interior website, you'll find this claim:

Federal agencies would continue to be required to consult with the Fish and Wildlife Service and NOAA Fisheries if their intended actions are expected to harass or harm a listed species. The proposed regulations clarify that agencies do not have to consult if their actions have no effect, an insignificant effect, a beneficial effect or an indeterminable effect on a listed species or its critical habitat.

And who is it that gets to make the decision about whether the agency's actions "have no effect, an insignificant effect, a beneficial effect, or an indeterminable effect on a listed species or its critical habitat"? You guessed it. The agency itself. And why is that a bad idea?

Well, Secretary of Commerce Carlos Gutierrez must think its a bad idea. NOAA reports to him, and NOAA officials recently notified the Federal Energy Regulatory Commission that their approval of a natural gas terminal is illegal under the Endangered Species Act.

"We feel FERC has come to a final decision without the benefit of the critical pieces of information they need to make that decision," said Cathy Tortorici, branch chief for NOAA Fisheries Service in Portland. "We're saying, 'Stop what you're doing until you've consulted with us..." (Portland Oregonian, 17 October 2008).

What do you think the chances are that NOAA would have been allowed to issue such an opinion if Kempthorne's regulatory changes had been in effect? Do you believe him when he calls it a "narrow regulatory change".

Mr. Secretary, if it truly is a "narrow regulatory change" that "will provide clarity and certainty to the consultation process under the Endangered Species Act," why not leave your proposal for the next administration to enact? What's the rush?

A couple of weeks ago the Natural Resources Defense Council delivered 100,000 comments on proposed revisions to regulations implementing the Endangered Species Act. The revisions would limit the need for federal agencies to consult with the U.S. Fish & Wildlife Service when those agencies decide that their actions would not affect listed species.¹

Originally, the comment period was to last only thirty days. Thanks to comments by the American Institute of Biological Sciences and others, the comment period was extended to sixty days. But Kempthorne is clearly committed to ramming these changes through before the Bush administration is replaced in less than three months.

Rushing to ease endangered species rules before President Bush leaves office, Interior Department officials are attempting to review 200,000 comments from the public in just 32 hours, according to an e-mail obtained by The Associated Press. The Fish and Wildlife Service has called a team of 15 people to Washington this week to pore through letters and online comments about a proposal to exclude greenhouse gases and the advice of federal biologists from decisions about whether dams, power plants and other federal projects could harm species. That would be the biggest change in endangered species rules since 1986. In an e-mail last week to Fish and Wildlife managers across the country, Bryan Arroyo, the head of the agency's endangered species program, said the team would work eight hours a day through Friday to sort through the comments. Interior Secretary Dirk Kempthorne's office, according to the e-mail, will be responsible for analyzing and responding to them. The public comment period ended last week, which initiated the review. (news services via the Atlanta Journal-Constitution).

200,000 comments in 32 hours. That's 6250 comments per hour. With a team of 15 people involved that's one comment every 8.5 seconds per person (not counting bathroom breaks or sanity breaks). Do you think Secretary Kempthorne plans to take the comments seriously?