PLF Liberty Blog

Gray wolves back on ESA list

The Fish & Wildlife Service has announced a settlement agreement between it and several environmental groups temporarily putting the western Great Lakes population of gray wolves back on the ESA list.  The Service concedes that it erred by not allowing a public comment period on the proposed delisting.

Salazar underwhelms Fresno; federal and state officials must act to convene God Squad

There is plenty of coverage of Sunday's visit by Interior Secretary Ken Salazar to Fresno. Aquafornia has a nice roundup of the news stories -- the problem with these stories, however, is that they fail to portray how truly uninspiring Salazar's visit was.

While the Secretary's visit was a nice gesture to those who have been hurt by California's water crisis, it was disappointing to hear how infrequently he uttered the words "Endangered Species Act" or "pumps." Salazar and his officials offered quite a bit when it came to long-term solutions (which are no doubt important), but little regarding what to do given the current crisis.

One official suggested monetary relief as a short-term remedy.  To say the crowd was not pleased with this proposal is an understatement -- "We don't want welfare, we want water" responded one attendee to loud applause.

Indeed, only Washington would solve the water problem with more money, rather than the common sense solution of more water. Money is not the solution to the regulatory drought. As Rep. George Radanovich stated at yesterday's forum, "We need action now." (h/t: Merced Sun-Star)

That is where Pacific Legal Foundation comes in.  We have formally requested both President Barack Obama and California Governor Arnold Schwarzenegger to act to convene a special federal panel – nicknamed the “God Squad” – to address California’s water emergency caused by harsh federal environmental restrictions that dramatically reduce the flow of water to millions of agricultural and urban water users.  More from our press release, including statements from PLF President Rob Rivett:

The Endangered Species Committee, nicknamed the “God Squad,” is a panel of cabinet officials that can be convened by the Secretary of the Interior, with power, in essence, to countermand Endangered Species Act (ESA) restrictions that cause excessive destruction to jobs and the economy.

The governor of an affected state may formally petition for the convening of the Committee. For this reason, PLF has sent a letter to Governor Schwarzenegger, urging him to submit a petition to Secretary of the Interior Ken Salazar.

PLF’s letter to President Obama urges him to make sure that his administration – including Secretary Salazar – acts favorably on a petition from Governor Schwarzenegger, and, indeed, that all available steps are taken to convene the Committee, to address California’s water emergency.

Over the past year, the U.S. Fish and Wildlife Service has imposed devastating cutbacks on water pumping into California’s main water system – idling farmland, causing urban communities to consider rationing, and driving up unemployment in San Joaquin Valley’s rural areas – as part of a regulatory scheme to protect the delta smelt, a small fish listed as “threatened” under the ESA.

Now, federal officials are proposing sweeping new reductions in water supplies to agricultural and urban areas, as part of a “biological opinion” relating to several species, including chinook salmon and steelhead. These further cuts in pumping and water supplies are estimated to remove an additional 500,000 acre-feet of water, the amount that is required to serve two million people annually.

“Without relief from the God Squad, the harsh enforcement of rigid environmental rules will inflict more pain and suffering in a state that is already enduring its worst unemployment in more than 60 years,” said PLF’s Rivett. “PLF calls on Governor Schwarzenegger and on the president to immediately do all in their power to ensure that the God Squad is convened as quickly as possible. California’s water emergency and economic crisis make it imperative that the God Squad be convened and responsible action be taken.”

The letters to President Obama and Governor Schwarzenegger can be found here, but we also need your help to ensure that federal and state officials receive our message loud and clear: the "God Squad" must be convened in order to achieve relief from the Endangered Species Act as soon as possible.  You can help by signing Pacific Legal Foundation's petition to President Obama and Governor Schwarzenegger -- click here for the petition site where you will be able to express your support for our efforts.

For continuing updates on "God Squad" developments, visit our website and this blog.  In the meantime, we'll be attending this Wednesday's Rally for Water in Fresno (h/t: Fresno County Farm Bureau), and we hope to see you there.

STATEMENT: PLF lauds Ricci Supreme Court ruling

PLF lauds Ricci ruling, which can help PLF's current lawsuits against San Francisco and Caltrans public-works contracting quotas 
 
The Supreme Court ruled Monday that New Haven, CT. violated federal civil rights law when it scrapped the results of a firefighters promotional exam because the top scorers did not meet the city's preferred racial mix.

Pacific Legal Foundation submitted an amicus brief in the case, and PLF Principal Attorney Sharon Browne issued this statement today:

"New Haven's exam was an objective test to measure skills and ability to do crucial firefighting work.   By throwing out the results, city officials were showing more concern with applicants' skin color than with who is best qualified to provide emergency services and perform other vital work of firefighters.   By putting race above public safety, the city was violating federal civil rights law, as the Supreme Court majority correctly recognized.
 
"Significantly, in ruling against the city, the Court majority poured some needed cold water on so-called disparity analysis as a justification for race-conscious government policies.   Specifically, the court said that a statistical disparity between the percentage of a racial group in the community, and the percentage of that group in a particular government job, does not, by itself, provide the kind of evidence of discrimination that is needed to justify a race-conscious policy as an anti-discrimination measure.
 
"The Court's skepticism of disparity analysis is very important, because it will strengthen current legal challenges to some high-profile racial-quota policies, including in San Francisco and at the California Department of Transportation. Both the City of San Francisco and the California Department of Transportation are trying to justify using racial quotas in public-works contracts by citing statistical disparities as supposed evidence of past discrimination that needs to be remedied.   PLF attorneys are challenging both of these quota programs in court right now, and the Ricci ruling adds further power to PLF's litigation."

Contact: PLF Principal Attorney Sharon L. Browne (916) 419-7111, slb@pacificlegal.org

Nominee for head of Fish & Wildlife Service comes under fire

Public Employees for Environmental Responsibility (PEER) contend that Sam Hamilton (currently head of the Service's Southeast Region), President Obama's choice to head the Service, has underforced the ESA.  PEER's evidence:  statistics showing that, between 2004 and 2006, there were nearly 6,000 consultations in Hamilton's region, but only one produced a jeopardy conclusion.

Service refuses to delist sucker fish

The Service announced yesterday that it was retaining the Lost River and shortnosed suckers as protected species under the ESA, rejecting a delisting petition submitted by water rights attorney James Buchal.

California declines to list the American pika

It's a rabbit-like animal whose habitat is extremely climate-dependent.  Thus, CBD as listing petitioner argued that climate change justified the pika's protection under the state ESA.  The California Fish & Game Commission voted Wednesday to deny listing (this denial comes after a remand to the Commission after CBD successfully challenged the Commission's first denial).  CBD now hints at legal action.  Definitely one to watch, given the ongoing federal review process for the pika.

Status review for Marbled Murrelet

Last week the Fish and Wildlife Service issued a new five-year status review for the marbled murrelet, a small seabird that lives in the Pacific Northwest.  The review recommends retention of the murrelet as a threatened distinct population segment.  The review comes a few months after PLF's unsuccessful lawsuit in Coos County to force the Service to act upon the recommendations contained in the prior murrelet status review.

PLF Welcomes Supreme Court's Ruling in AZ Schools Case (Horne v. Flores)

Today, in Horne v. Flores, the U.S. Supreme Court issued a ruling on a challenge to intensive federal court supervision of Arizona public school policies and programs for English learning students.

By a 5-4 vote, the court reversed a Ninth Circuit ruling that found local school policies inadequate, and sent the case back to the district court for a revised look at whether the schools in Nogales provide equal opportunity to English language learners.

Pacific Legal Foundation submitted an amicus brief to the U.S. Supreme court, in support of Arizona school officials and in opposition to the Ninth Circuit’s ruling. PLF Attorney Steven Geoffrey Gieseler issued this statement today:

"Today’s ruling is a victory for a vital principle: Federal courts should not be micromanaging local school policies. The decision is welcome because it will mean that state and local officials will regain the freedom to develop and oversee the policies that they find are best for the schoolchildren of Arizona, especially the state’s English-learning students. Federal courts do not have the knowledge, competence or authority, to supplant school boards and the state in that role, or to persistently pull rank on local educational officials. This ruling is a win for our federalist system of government, which limits the power and reach of national bureaucrats and the federal courts. It is also a win for our historic tradition of local control over education – and for Arizona’s schoolchildren, who are best served when decision-making is kept close to home."

Contact: PLF Attorney Steven Geoffrey Gieseler (772) 781-7787  sgg@pacificlegal.org   

Oregon moving-business cartel law is repealed

Oregon Governor Ted Kulongoski signed legislation yesterday to free the market for entrepreneurs in the moving industry, eliminating a decades-old rule that allowed existing moving companies to block applications for new licenses.  The change came in response to a civil rights lawsuit filed by PLF and Portland business owner Adam Sweet, whose company, 2 Brothers Moving, employs five people in the Portland area.

This great victory came just months after PLF attorney Timothy Sandefur and Adam Sweet led a "Freedom Caravan" of moving companies to the state capitol in Salem to demand the right to compete fairly.

Today's news release is posted on PLF's Website.

Suit filed over Preble's jumping mouse

CBD filed suit yesterday in federal district court in Denver challenging the Service's decision to delist the mouse in Wyoming.  The mouse has been controversial for some time, with many people contending that it is genetically indistinct from other more populous mice.  In many respects, the debate over whether to protect the mouse has become an epitome of ESA controversy.

Rodriguez on the smelt

Last night on Fox News' Hannity and Colmes, host Sean Hannity interviewed comedian Paul Rodriguez, who in recent months has become the leading spokesman for the plight of the Central Valley's farmers.

SCOTUS reverses Ninth Circuit, allows needed mining project to go forward

Today the Supreme Court issued a decision in Coeur Alaska v. Southeast Alaska Conservation Council. The Court reversed a 2007 decision by the Ninth Circuit and held that the discharge of tailings material from a mine is subject only to the permitting scheme of Section 404 of the Clean Water Act, not the more burdensome requirements of Section 402. The decision is available here.

PLF authored an amicus brief (available here) that called for the Court to clarify that Section 404 is the proper provision for regulation of mine tailings. In a press release, PLF attorney Brandon Middleton issued this statement applauding the Court's ruling:

"The Court got it right on both legal and practical grounds. A redundant, double permit requirement for disposing of mine tailings isn’t required by the statute. And, as the court recognized, in a practical sense an overly bureaucratic, double permitting rule would create costly confusion in the permitting process. The decision allows the most common and environmentally sound methods for the disposal of mining waste to continue. The court rejected environmentalist arguments that could have the effect of crippling the mining industry. This is a sound decision and an especially welcome development given the precarious status of the national economy.

 "The nation’s mining industry, and especially Alaska’s, would have suffered a serious blow had the Court ruled in favor of environmental organizations. Instead, the Court’s decision provides much needed clarity to mining companies like Coeur Alaska and will better enable them to provide jobs for Alaskans and Americans everywhere."

Three aspects of the Court's decision are worth noting:

1. Contrary to those who would argue that today's decision is a loss for the environment, the Court recognized how mining companies like Coeur Alaska can be part of a long-run improvement in environmental conditions.  The decision rests in part "[o]n the premise that when the mining ends the lake will be at least as environmentally hospitable, if not more so, than now." Indeed, it is hard to imagine how the environmental community would have been satisfied had the Court ruled against Coeur Alaska -- the decision allows mine tailings to be discharged into a lake, but "[i]f the tailings did not go into the lake, they would be placed on nearby wetlands. The resulting pile would rise twice as high as the Pentagon and cover three times as many acres. . . . If it were chosen, that alternative would destroy dozens of acres of wetlands--a permanent loss."

2. Some may wish to blame the Bush administration for this decision. For example, Earthjustice President Trip Van Noppen suggests that the current regulatory status "was caused by a Bush administration rule reversing 30 years of successful regulation under the Clean Water Act." (h/t: New York Times) Mr. Van Noppen fails to recognize that the Obama administration had also voiced its support for regulating tailings discharges under Section 404 of the Clean Water Act, not Section 402.

3. The Court was clearly concerned with how its decision would affect the regulated public.  Consider Justice Kennedy's response to SEACC's arguments that the Corps of Engineers was precluded from issuing a permit under Section 404, and that the correct permitting provision was Section 402:

SEACC’s reading of §404 would create numerous difficulties for the regulated industry. As the regulatory regime stands now, a discharger must ask a simple question—is the substance to be discharged fill material or not? The fill regulation, 40 CFR §232.2, offers a clear answer to that question; and under the agencies’ view, that answer decides the matter—if the discharge is fill, the discharger must seek a §404 permit from the Corps; if not, only then must the discharger consider whether any EPA performance standard applies, so that the discharger requires a §402 permit from the EPA.

Under SEACC’s interpretation, however, the discharger would face a more difficult problem. The discharger would have to ask—is the fill material also subject to one of the many hundreds of EPA performance standards, so that the permit must come from the EPA, not the Corps? The statute gives no indication that Congress intended to burden industry with that confusing division of permit authority.

Justice Kennedy likewise noted that a two-permit regime "would cause confusion, delay, expense, and uncertainty in the permitting process."  Fortunately, today's decision by the Court gives regulated entities a little bit of certainty in an uncertain world.

Coeur Alaska's press release on the decision is available here.  More analysis from Legal Planet's Dan Farber is available here. 

Polar bear numbers drop

Reports Reuters.  The numbers are a combination of losses from habitat loss as well as Russian poaching.

the danger of climate change regulation

Legal Planet has had several posts on climate change and possible legislation over the past week, with the latest being "An Open Letter to Climate Change Denialists." We do not have the expertise to confirm or deny climate change. We do, however, stand for the protection of private property rights and economic liberties, and that is why one post in particular jumped out to us.

On Sunday, Professor Farber asked "Is EVERYTHING Related to Climate Change?" His conclusion:

I don’t want to seem obsessed with a single issue, so I keep trying to come up with topics that have absolutely no relationship with climate change. But I can’t seem to find any.

The fact is that energy is such an integral part of our economy that almost all activities connect one way or another with energy use and hence (in a carbon-based economy) with climate change.

Professor Farber's commentary may not have been meant to be taken as a serious and complex analysis, but it does highlight the danger of climate change regulation: it provides a means by which lawyers and bureaucrats can regulate each and every aspect of our lives, economic and otherwise. For instance, according to Professor Farber, even divorce is somehow related to climate change.

Those who desire climate change legislation and cap and trade schemes must be aware that such regulation has the potential to impact all human activity. Unfortunately, we're not convinced that politicians are aware of the ramifications of climate change legislation -- or perhaps they don't care.

PLF ESA success

In 2005 PLF represented various home builder groups in challenging overbroad critical habitat designation for numerous species in California, including the Quino checkerspot butterfly. Today, the U.S. Fish and Wildlife Service issued its final revised critical habitat designation reducing the amount from 171,604 acres to 62,125 acres (64%) in San Diego and Riverside Counties.

The final rule can be found here.