PLF Liberty Blog

More coverage on Santa Barbara "Naples Project" Lawsuit

From the Santa Barbara Independent.

Mexican gartner snake designated a candidate species

CBD upset by the designation---litigation in the offing?

more "Bush hates the environment" rhetoric

NRDC's Josh Mogerman has an idea for the U.S. Fish and Wildlife Service under the Obama administration. "Under current leadership, the FWS has been directed towards an all-out assault on the ESA and its scientific focus," so the solution according to Mogerman consists of three words:

[L]et’s just change the tone. Send the simple message, “Wildlife is OK.”

That one little change is a balance tipper. It allows a return to decisions based on science instead of politics. They are biologists. Naturalists. Conservationists. People who care about nature. They want to protect wildlife, not wage war on it.

That change allows FWS to start grappling with the issues that are going to be central to their work: investigate climate change impacts already being felt by our wild life and wild places, undoing some of the crazy rule changes that the administration is foisting on us as they sulk out the back door, drafting the recovery plans that are central to endangered species' population growth, revisit the process for listing endangered species and critical habitat, and increase ESA funding (because goodness knows there will be a lot going on in that arena to get caught up after the last 8 years).

Since a change in tone is apparently needed, the message at FWS under the Bush administration must have been "wildlife is not ok." That's kind of a strange way of putting things when one takes a closer look at some of the initiatives undertaken by Bush's FWS in the past eight years. Consider for example, Bush's Cooperative Conservation efforts. More recently, the Fish and Wildlife Service under Bush has received praise from the American Bird Conservancy for an extremely broad approach to designating critical habitat, informed managers of a whitewater park for kayakers that their project may harm Lahontan cutthroat trout despite "the project's designers [having] bent over backwards to address concerns expressed by federal and state regulators," and has questioned the ability of the Federal Energy Regulatory Commission to approve a proposed natural gas pipeline. "How will FERC estimate species and habitat occurrences, and subsequently estimate project effects, for species and habitats that may be found on unsurveyed lands?" asked Fish and Wildlife Service Supervisor Paul Henson -- an odd question for an official working under an administration that supposedly hates the environment.

The point is that despite what you find on their websites and read in their news releases, FWS under Bush has done much that is agreeable to environmental organizations. The reality is that you don't hear about these favorable decisions because they contradict the notion that the Bush administration has had an "absolute tone-deaf response to issues around the Endangered Species Act (ESA) for the last eight years." Rather than undermine the idea that there is an all-out assault on the environment and the Endangered Species Act, groups such as NRDC choose to overdramatize the decisions that don't go their way.

To get back to Mogerman's desire that FWS officials grapple with the issues that are central to their work (as if they weren't doing that already), Mogerman believes that FWS should "investigate climate change impacts already being felt by our wild life and wild places," presumably under the ESA.  How these investigations should take place and what exactly should be done after they are complete is left unsaid.  Also not mentioned is that any attempt to regulate climate change via the ESA would be a cumbersome ordeal and would impose real costs on society.

In the end, Mogerman's suggestions would amount to a significant expansion of regulatory authority under the guiding principle that "Wildlife is OK."  Perhaps a proper response is "Yes, but what about people?"

children's ballpark runs into the Massachusetts Endangered Species Act

Today's Boston Globe contains an interesting story on how a good idea got entangled in a bureaucratic mess.  Nearly ten years is apparently not enough to get a project for the benefit of children approved under the Massachusetts Endangered Species Act.  Babe Ruth would not be happy:

Babe Ruth's only living daughter, Julia Ruth Stevens, 92 - a Red Sox fan and board member for Mini-Fenway Park - says her legendary father wouldn't be happy about the delay.

"I think he would be frustrated," she said from her Arizona home. "I don't think I could use the language that he would, but I think he would think it was just plain stupid."

Stevens was in Quincy last summer for the Babe Ruth World Series, and toured the site.

"It's a place where children can come and play and they have a wonderful place to do it in," she said. "I just can't see how they can hold up a thing like that.

"I'm all for nature and extending the lifetime of various little things of various species, but I really do think that people take precedence over that.

"This is a wonderful, wonderful project. Somebody needs to light a fire under them. Everyone concerned with it is ready to go, but the state government is holding them up."

 

New Coastal Commission Documentary Expose

Sins of Commission, by Richard Oshen.

Lawsuit filed to stop Santa Barbara project

The plaintiffs are Surfrider Foundation et al, the project would allow development of 71 homes of approximately 7,500 to 10,000 square feet each, plus accessory structures.  One of the bases for the lawsuit is the contention that the County's approval of the project violates the Coastal Act.  Read more here.

PLF TV Commentary on the ESA regulatory changes

From KGO TV in San Francisco.

delta smelt litigation update

Earlier this week in the federal delta smelt litigation, Judge Wanger declined to invalidate several water contracts that affect the use of water in and around the Sacramento-San Joaquin Delta. Environmentalists had sued based on the alleged negative impact the contractual water deliveries have on the endangered delta smelt.  Judge Wanger declined to hear this request, noting that the U.S. Bureau of Reclamation could already withhold water deliveries under the contracts as necessary for Endangered Species Act purposes.

It remains to be seen whether and to what extent the court will enjoin the performance of water contracts that deal with water deliveries in the northern section of the delta. Judge Wanger has asked for further evidence "on the full nature and extent of [these contractors'] senior water rights." The court appears to be concerned with what percentage of the water deliveries under these contracts are non-discretionary due to senior water rights, as "[t]hese senior water rights are beyond the reach of the ESA," and what percentage of the water deliveries are a result of discretionary contract negotiations on the part of Reclamation. Deliveries under the latter may be subject to further ESA restrictions to benefit the delta smelt.

More coverage is available at the Modesto Bee and the San Jose Mercury News.

The decision is available here. 

status of proposed Section 7 regulations

The Oregonian reports that Bush administration officials "do not plan to finalize revisions of the Endangered Species Act this week, contradicting news reports saying that they would push the revisions through by Friday so a new administration could not easily undo them." Thanks to ESA blawg's Keith Rizzardi for the pointer.

There is still no word on whether the regulations will be finalized by the end of today.

Relatedly, PLF Principal Attorney Reed Hopper has issued the following statement on the proposals:

Breathless criticism of the minor changes proposed to the ESA regulations have risen to the point of hysteria. Grandstanding critics would have us believe that the proposed changes will "gut the Act" and eliminate protections for endangered species. What nonsense! The Administration proposes to allow federal agencies to use their own in-house biological experts to evaluate the effects only of small projects that will have no significant impacts on protected species. Large projects like dams and highways, with obvious impacts on habitat, will still be reviewed by Fish and Wildlife Service biologists.

This is a commonsense change that is long overdue. Under the ESA, it is the project agency that has the duty to comply with the Act, not the Fish and Wildlife Service. There are also safeguards built into this approach. The Service can override an erroneous decision by the project agency and the Act itself subjects government agencies and officials to civil and criminal liability for harming protected species. Therefore, project agencies have every incentive to protect species from project impacts.

The proposed changes are unlikely to have any discernible adverse effect on current ESA practices, let alone "gut the Act."

Baldwin Park Homeowners Safe from Eminent Domain...For Now

by Timothy Sandefur

The San Gabriel Valley Tribune reports that Bisno Development has withdrawn from plans to throw hundreds of homeowners out of their property and replace their homes with a multimillion dollar development.

Given that Proposition 99 gives Californians no meaningful protection against eminent domain, it's not surprising to learn that the decision has nothing to do with respecting the property rights of people in Baldwin Park. Instead, Bisno says they cannot afford the project given the current state of the economy. And that means, of course, that Baldwin Park residents are still vulnerable to condemnation whenever bureaucrats decide to take their property.

the Endangered Species Act, global warming, and the Obama Administration

Yesterday Politico offered an analysis on how the President-Elect Obama may use the Endangered Species Act to impose global warming regulations:

Some environmentalists say President-elect Barack Obama’s transition team is eyeing the Endangered Species Act, a 1973 law largely overseen by the Interior Department, as a backdoor vehicle to help jump-start the regulation of global warming emissions.

Green groups have prodded the Bush administration to recognize the connection between the decline of the polar bear’s Arctic habitat and climate change, which prompted the bear’s designation as a threatened species.

Interior’s Fish and Wildlife Service listed the polar bear earlier this year as “threatened,” but the administration simultaneously noted that the bear’s decline due to carbon emissions would not result in requiring emissions to be reduced to help protect the bear.

If Obama officially recognizes the connection and pushes for action, it would draw a definitive link between industrial emissions and the threat to a declining species, likely necessitating new emission regulations and pressuring Congress to move ahead with cap-and-trade legislation....

“We live in a changing world, and that’s going to necessitate that we adapt our laws accordingly,” said Carroll Muffett, political director at Greenpeace. “We need someone willing to use the Endangered Species Act to the full extent of the law.”

LA Times Criticizes ESA Regulatory Amendments

Not surprising.

Commission gives Solana Beach more time for LCP finalization

Voting unanimously and contrary to staff recommendation.

ESA Regulatory Amendments close to fruition

The AP reports, with a quote from PLF Principal Attorney Reed Hopper:

The Pacific Legal Foundation, which advocates for property rights, urged that the rules be approved.

"Litigious activists have used the Endangered Species Act to fight projects," Reed Hopper, the foundation's principal attorney, said in a statement. "The administration's current proposal is a step toward curbing these abuses."

NMFS: EPA registration of pesticides would jeopardize Pacific salmon

The AP reports that NMFS has issued a biological opinion on EPA's proposed registration of the uses of all pesticides containing chlorpyrifos, diazinon, or malathion. The biological opinion (available here) concludes that the registration will likely jeopardize the continued existence of several salmonids and will likely result in the adverse modification of their critical habitat.

Accordingly, as the AP notes, "[f]arms and orchards that continue to use three pesticides that harm salmon will have to greatly expand buffer zones around their fields so the chemicals don't reach streams, federal biologists ruled Tuesday."

The biological opinion is a result of a lawsuit brought by Earthjustice, which issued this press release. In the press release Glen Spain of the Pacific Coast Federation of Fishermen's Associations is quoted as saying that "[k]eeping these pesticides out of the water is a major step toward protecting our salmon stocks and revitalizing the fishing industry, which can generate hundreds of million of dollars in the region."

The AP pointed to Washington Friends of Farms & Forests' Heather Hansen for a counter:

Plaintiffs in the case hope the expanded buffers will convince farmers and growers to drop use of the chemicals entirely and turn to alternatives or even organic farming . . . .

That would be a hardship for growers, particularly apple and cherry growers, said Heather Hansen of Washington Friends of Farms and Forests. Without them, apple growers that get coddling moths and cherry growers that get cherry fruit flies could be quarantined and unable to sell their fruit.

She added that organophosphate use has been declining in recent years, with water samples by the state of Washington showing cleaner water.

"The way they are using these products today, nobody has shown evidence of harm to fish," she said. "This is really about paperwork — government agencies not doing paperwork and not communicating well with each other."