PLF Liberty Blog

wolf delisting update

Yesterday's Missoulian contained a story on the delisting of the gray wolf in Montana and Idaho. The wolf will remain protected under the ESA in Wyoming.

On the issue of a state-centric listing status, EarthJustice's Jenny Harbine states that "a state-by-state approach to delisting is unlawful." This would seem to conflict with the ability of the Fish and Wildlife Service to consider existing regulatory mechanisms in listing determinations -- it will be interesting to see the forthcoming delisting decision and how it justifies the exclusion of Wyoming.

Meanwhile, NRDC's Louisa Willcox suggests that some states aren't ready for a delisting:

[B]ecause the plan also fails to guarantee resources needed to help reduce wolf/livestock depredations, the plan doesn't do a lot to help ranchers either. To fill the funding short-fall for wolf management, the states have been calling for federal government bail-out money to manage wolves once they are removed from the federal list. But that's not the way the system works. States get federal funds to help recover imperiled species that are on the endangered species list. The federal funds disappear after a species is delisted. With the current fiscal crisis, what are the chances that taxpayers will choose to spend millions more on wolves? Like so many financial institutions we've heard about recently, the states want to have their cake and eat it too.

We have not seen anything to indicate that Montana and Idaho have called for bailout money for wolf management, but that would make this story even more intriguing if it is in fact true. 

Decision rendered in hatchery listing policy challenges

Today the Ninth Circuit issued its decisions in Alsea Valley Alliance v. Lautenbacher and Trout Unlimited v. Lohn.  Both cases presented challenges to the National Marine Fisheries Service's Hatchery Listing Policy (HLP).  Under the HLP, the Service determines whether and to what extent hatchery-raised salmon will be taken into account when determining whether to list a given salmon population under the ESA.  Several groups, represented by PLF attorneys, argued that the HLP contradicts the ESA by systemmatically discounting or ignoring hatchery fish in favor of naturally spawning fish.  Environmental groups also challenged the HLP, but on the grounds that the HLP gives too much consideration to hatchery fish.

The Ninth Circuit upheld the HLP against both sets of attacks.  The court concluded that NMFS had enough data and expertise favoring its position that hatchery salmon are not uniformly bad, and are properly looked to when assessing a salmon population's extinction risk.  The court declined to second-guess the agency's predictive judgments or assessments of the conflicting studies in the record.  Importantly, the court ruled that the ESA's purpose is in fact to preserve naturally self-sustaining populations, and that the HLP adequately serves that goal.

The Alsea and Trout Unlimited decisions mark the end of over a decade of salmon litigation in the Pacific Northwest.  After today, it is clear that, although hatchery will have some role to play in salmon conservation, neither the Service nor the courts will let that role be a major one.

"A dangerous mix in the forecast"

PLF Vice President M. David Stirling had this op-ed in yesterday's Washington Times.

MORR Conference on Eminent Domain in Long Beach, CA

by Timothy Sandefur

I will be speaking at the conference on redevelopment abuse sponsored by Municipal Officials for Redevelopment Reform, on April 25. More information here.

delta smelt litigation update

Blogging at PLF on ESA was unfortunately light last week, especially considering the several ESA-related news items that occurred. We continue to monitor delta smelt litigation, which took a new turn when the San Luis & Delta-Mendota Water Authority and Westlands Water District filed a complaint in the Eastern District of California. This complaint challenges the December 2008 biological opinion on the effects of coordinated state and water federal projects on the smelt and is available here. The challenge to the biop contains several allegations and argues that the U.S. Fish and Wildlife Service's conclusion that water pumping jeopardizes the the smelt species is flawed:

While the project pumps do take some delta smelt, the best available scientific data show that this take, and other project effects, do not have population level effects on the delta smelt. The 2008 Biological Opinion will result in significant harm to Californians who depend upon [federal Central Valley Project] water supply, without reason to believe that these costs will result in any meaningful benefit to the delta smelt.

The State Water Contractors have also filed a complaint, available here.  Today the SWC action was reassigned to Judge Wanger, who is overseeing the rest of the delta smelt litigation.  Judge Wanger has set an initial scheduling conference for June 11.

In today's Marysville Appeal-Democrat, Thomas D. Elias discusses Judge Wanger's earlier decision that invalidated the Service's no-jeopardy finding and the impact it has had on California's water situation:

Wanger's decision was one reason many California reservoirs neared their lowest levels ever last summer and fall. Yes, 2007 and 2008 were dry years, but this drought did not approach record levels. Wanger's ruling made things far more severe by depriving the state Water Project and the federal Central Valley Project (CVP) of about one-third of the water their reservoirs would ordinarily have gotten.

Now a series of February and March storms has restored the snowpack in the Sierra Nevada Mountains, ultimate source for most water in the Delta, to normal or near-normal levels.

But the new Fish and Wildlife regulations will stop the pumps even longer times than did Wanger's order. The idea is to idle them during the entire smelt spawning season, essentially from January to June.

So supplies will be low for farms and cities this spring and summer. Perhaps not as low as indicated by the federal Bureau of Reclamation before the late-winter storms, when it warned many farmers to expect no water at all from the CVP. But still far lower than if the pumps were operating normally.

This time, though, there's an attempt to keep the pumps running. It takes the form of a lawsuit by the Westlands Water District and the San Luis & Delta-Mendota Water Authority, which help irrigate vast swaths of the western San Joaquin Valley. They essentially argue the new rules unreasonably value fish over people. And they're right.

Thanks to Aquafornia for the pointer.

Coastal Commission Approves (Surprise!) Crackdown on Big Homes

This, out of Santa Cruz, where about 500 coastal properties may see the size of their prospective homes drastically reduced under new land-use rules issued by Santa Cruz and happily approved by the Coastal Commission.

This is part and parcel of Commission and local government efforts to sacrifice individual freedom at the altar of neighborhood "character" -- that nebulous and inherently subjective standard applied, of course, by bureaucrats.

Radical Enviro Appointed to Coastal Commission

SF Gate reports that the Senate Rules Committee yesterday appointed San Francisco Board of Supervisor, Ross Mirkarimi, to a seat on the California Coastal Commission. 

Mirkarimi co-founded the California chapter of the Green Party and is a radical environmentalist.  A perusal of his record as supervisor makes clear this one's no friend to property rights or business. 

Mirkarimi can't wait to get to work on what he happily refers to as "one of the most powerful land-use bodies in this country."  And he seems to think the Commission hasn't been anti-development enough, declaring "[i]t's important to have a strong, open-minded progressive sitting on the commission, ...." 

The years ahead may prove to be a real challenge to property owners in the coastal zone. 

Delta Smelt Uplisting

Yesterday the California Fish and Game Commission voted to uplist the delta smelt from threatened to endangered under the California Endangered Species Act.  Also, the Commission voted to list the longfin smelt as threatened.  Neither move was especially surprising.

Effective partial repeal of new Section 7 regs

Yesterday, the Obama Administration issued an executive order requesting all federal agencies to initiate consultation with the U.S. Fish & Wildlife Service and the National Marine Fisheries Service under ESA Section 7 according to the regulatory rules in effect prior to the Bush Administration's promulgation of the new Section 7 regs last December.  The order lasts until the Secretaries of the Interior and Commerce complete their review of the new regs to determine whether to initiate formal withdrawal of those same regs.  The executive order comes after last week's House vote on a provision in a budget bill that would authorize the president to withdraw the Section 7 regs in their entirety without having to observe the normal procedural constraints of the APA.

It's important to note, however, that the executive order does not affect the remaining new Section 7 regs, such as those dealing with assessing a project's effects on global climate change.

"Global Warming: Using the Polar Bear to Impose Costly Measures"

The Heritage Foundation's Ben Lieberman has this analysis on the ESA riders and concludes:

The American people do not need a costly backdoor global warming policy implemented through the misuse of preexisting ESA authority never intended for that purpose. But at no time is such a policy more harmful than in the midst of a severe recession. The adverse economic impacts of ill-advised global warming measures are clear and are a big part of the reason why Congress has yet to directly enact any such measures. Doing it indirectly via the ESA and quietly tucking it into the massive omnibus appropriations bill now moving through the Senate would be just as damaging. The Senate should allow and encourage a full debate on this pernicious policy rather than cramming this legislation through with little to no discussion of the economic perils it would bring to the nation's future.