Wolverines: Quest to protect magnificent mustelids continues

www.usnews

Photo: Daniel J. Cox/NaturalExposures.com via AP

Kathleen Stachowski   Other Nations

News flash: Climate change imperils wolverines and Feds must act! That’s the recent headline from ABC news, reporting on court proceedings in Missoula, Montana. On Monday, April 4th, “U.S. District Judge Dana Christensen ordered wildlife officials to act as quickly as possible to protect the species as it becomes vulnerable to a warming planet.”

Cue the climate change deniers and those who don’t know much of anything about wolverines: “Wolverines are tough animals. I really don’t think ‘climate change’ is anything they can’t handle,” said one commenter at the Missoulian Facebook page.“There is no evidence suggesting that wolverines will not adapt sufficiently to diminished late spring snow pack (assuming there is any) to maintain viability,” wrote Wyoming governor Matt Mead back in May of 2013 (in the Northern Rockies, Montana and Idaho also opposed listing). But snow joke–snow matters. Wolverines are obligate snow denners who require remote, deep, and usually high elevations snow fields that persist well into spring. This is where natal and maternal dens enable them to birth and raise their young–in other words, enable them to surviveContinue reading

Bear 399: Delisting the grizzly you know

P1120382Kathleen Stachowski    
Other Nations

We humans don’t relate well to nonhuman animals at the population level–so goes the theory. But give us the particulars about a specific individual–tell us his or her story–and we get it: this is someone who has an interest in living. Someone with places to go…kids to raise…food to procure. Like us, this is someone who wants to avoid danger–while living the good life. This is an individual with a story–and a history.   Continue reading

Merck Pledges to End Chimpanzee Testing

 

Seth Victor

 

Taking further steps in the right direction, Merck, one of the largest drug producers in the world, announced last month that it is ending research on chimpanzees. Kathleen Conlee, vice president of animal research issues for The HSUS said: “Merck’s new biomedical research policy will save chimpanzees from unnecessary and painful experiments. Merck’s decision, and that of several other pharmaceutical companies, sends a strong message that private industry is moving away from chimpanzee research as the government has.”

 

Merck has made this commitment while simultaneously stating, “The company’s mission is to discover, develop, manufacture and market innovative medicines and vaccines that treat and prevent illness. Animal research is indispensable to this mission.” While that quotation ominously suggests that other animals will continue to be a part of the company’s research, the more hopeful interpretation is that while Merck relies on animal testing under FDA regulations for its drugs and other products, it joins other pharmaceutical companies recognizing that even though chimps might be valuable to this research, their welfare is more important, and other ways to test the products should be utilized.

 

 

 

The ESA at 40

Ellen Zhangellen

“What a country chooses to save is what a country says about itself,” Mollie Beattie, U.S. Fish and Wildlife Service Director 1993-1996.

Forty years ago this month, Congress passed the Endangered Species Act (“ESA”).  When signing the ESA into law on December 28, 1973, President Nixon stated, “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alive, and it forms a vital part of the heritage we all share as Americans.” Continue reading

The Animal Law Circus

David Cassuto

elephant abuseThere’s a story about a Canadian farmer who won a $100 million tax-free, lump sum payment in the Canadian lottery.  When asked what he would do with the money, he replied “I guess I’ll just keep farming until the money’s gone.”

Now, let’s talk about animal law.

Asian elephants are endangered.  Elephants in circuses are brutally mistreated.  In 2000, a lawsuit was brought under the Endangered Species Act, claiming that the elephants’ treatment by Feld Entertainment (parent of Ringling Brothers) violated the “No Take” provision of the ESA and should be enjoined.  In late 2009, following a lengthy litigation, a judge threw out the case after deciding that the former circus worker who was the lead plaintiff  lacked credibility, was paid for his testimony, and that there was therefore no standing for the plaintiffs to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly ancillary to a ridiculous debate about people.  Continue reading

Can Farming Rhinos Save the Species?

Seth Victor

Rhino-horn-tradeKevin Charles Redmon poses an interesting thought: can farming the horns of African rhinoceroses save the species? The horns of the rhinos are used throughout the world, from dagger handles to medicine. Though the animals are endangered, and protected under CITES, there is a lucrative black market business in poaching, especially when the horns fetch $65,000 a kilo; “demand for horn is inelastic and growing, so a trade ban (which restricts supply) only drives up prices, making the illicit good more valuable—and giving poachers greater incentive to slaughter the animal.” Poachers aren’t overly concerned with the long-term extinction risks of their prey. The focus is on the immediate value. Because the activity is illegal, timing is of the essence, and it’s apparently easier to kill and harvest the rhinos versus tranquilizing and waiting for them to go down. What if, Redmon wonders, we were to harvest the horns (they re-grow over time) by placing rhinos in captivity, guarding them well, and introducing a sustainable horn supply that doesn’t kill the rhinos? Continue reading

Why our modern lifestyle spells disaster

Seth Victor

Do you love your meat? Well, love it or hate it, it may well cause the collapse of our global society. In the latest report confirming the strain factory farming and overconsumption of animal products causes our environment, The Guardian reports that mass food shortages are predicted within the next 40 years if we as a species do not scale back meat consumption. It’s a simple matter of not having enough water to produce the crops necessary to support the animals needed to satisfy current consumption, to say nothing of what another 2 billion human mouths will bring to the table. If we do not scale back, food shortages and water shortages could be a worldwide reality, as well as food price spikes. Continue reading

When the Wild Things Aren’t

Seth Victor

Here’s the situation. You have several domestic cats in a neighborhood from different houses. For one reason or another, a couple of these cats leave their homes and wander the neighborhood and breed, becoming more or less feral. This goes on for several generations. Does there come a point when these cats are no longer domestic animals, but should be considered wild?

I pose the question concerning cats because feral felines occupy a middle ground in our society’s ever complicated definitions when it comes to animals. Cats are cute and cuddly and are one of the primary “pet” animals; though probably just a juicy and tender, it’s faux pas to eat them, and even the dumbest cat is more lauded than the smartest pig. Cats are also noted for their more independent behavior. Ask a “dog person” why he likes his dog better, and you will inevitably hear some mention of loyalty and companionship that he doesn’t see in cats (though the “cat people” will vociferously disagree). But can that make cats more wild, and if so, what does that mean? When are animals wild, and can they cross or re-cross that line?

Continue reading

Existence Value Introduced as an Argument for Standing in ESA Lawsuit

David Cassuto

The National Marine Fisheries Service (NMFS) has construed the Endangered Species Act to exclude captive populations of  the endangered Southern Resident killer whale population.  This means that these endangered orcas  are deprived of the protections of the statute and can be exploited for profit by commercial operations.  A number of individuals and animal advocacy organizations including the Animal Legal Defense Fund (ALDF), on whose board I sit, brought suit in the Western District of Washington to challenge this interpretation.

To wit:

SHELBY PROIE; KAREN MUNRO;                              Case #3:11-05955-BHS
PATRICIA SYKES; ANIMAL LEGAL
DEFENSE FUND, a non-profit
corporation; and PEOPLE FOR THE
ETHICAL TREATMENT OF ANIMALS,
INC., a non-profit corporation,
Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE, ERIC C. SCHWAAB, in his
official capacity as Assistant Administrator
for Fisheries of the National Marine
Fisheries Service; and REBECCA M.
BLANK, in her official capacity as the
Acting Secretary of the United States
Department of Commerce,
Defendants.
____ _______________

Last week, ALDF amended its complaint to include a standing claim based on “existence value.”  It declared:

16. ALDF also brings this case on behalf of its members who, on information and belief, place significant and particularized value on the continued existence of Southern Resident killer whales, and whose interests in ensuring that the species continues to exist are injured by
NMFS’s decision to exclude the captive members of the population from the list of endangered species because protecting captive members of a listed species is necessary to ensure that it will not become extinct in the future and can eventually be recovered.

and   Continue reading

Should We Leave Certain Species Behind?

Theologia Papadelias

Should we let certain endangered species die out? Scientists have long stated that biodiversity is significant in maintaining a healthy ecosystem, but some are taking a seemingly unintuitive view that has been termed conservation triage. Conservation triage focuses resources on animals that can realistically be saved, and giving up on the rest. Those that fall into the too-expensive-to-save category might include the panda and the tiger.

Unfortunately, economic factors must be taken into consideration and some species require more money to save than others. For example, the California condor population saw an increase to 381, with 192 living in the wild, since 1987. An ongoing monitoring and maintenance program that costs more than $4 million a year helps keep them going. But is this program a success or merely a waste of finite resources? Continue reading

Monkey Business

Sarah Saville

What’s the difference between an ape and a monkey? In high school I would have answered: a tail. In college I would have answered: somewhere between 3%–6% genetic differences. In law school I will answer: the amount of legal protections available to the animals.

Zoologically, great apes include bonobos, chimpanzees, gorillas, and orangutans. As defined by proposed legislation, great apes include the gibbons of Family Hylobatidae, also known as the lesser apes. The European Union ended research on captive great apes last year. Today, there are currently several proposed measures to extend protections to captive apes in the United States. The U.S. Fish and Wildlife Services is currently reviewing whether or not to list all chimpanzees as endangered under the Endangered Species Act. Wild chimpanzees are currently listed as endangered, but captive chimpanzees are only listed as threatened. The current “split listing” permits the use of chimpanzees in research and to be kept as pets. In April, Congressman Roscoe Bartlett introduced the Great Ape Protection and Cost Savings Act of 2011. If passed, the Act will retire all federally owned apes used in research and for breeding.   Continue reading

Wolf Delisting Op-ed

David Cassuto

Between Kathleen and me, we’ve taken up a lot of blawgwidth on the wolf issue and yet there’s so much more to be said.  Here’s my bid to bring it into the mainstream media.

Amidst a Windy Congress, Some Protections for Birds

David Cassuto (also up in GreenLaw)

I’ve blogged before about the dangers to wildlife from wind turbines.   Well, this just in: yesterday, the Department of the Interior released draft guidelines to protect wildlife from wind turbines  while calling on all involved in the industry to rigorously monitor, assess, and incorporate best practices into their designs.

The guidelines look to promote compliance with the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, as well as other relevant statutes.  They advocate a tiered approach, including preliminary evaluation or screening, site characterization, pre-construction monitoring and assessments, post construction monitoring and assessments, and research. Continue reading

Wolverines — Endangered but Not “Endangered”

David Cassuto

And speaking of the Endangered Species Act…

This just in:

After a thorough review of all the available science, the Fish and Wildlife Service has determined that the contiguous United States population of wolverine should be protected under the Endangered Species Act (ESA). However, the rulemaking to propose ESA protections for the wolverine will be delayed while we work on listing proposals for other species in greater need. The wolverine will be added to the list of candidates for ESA protection. As a candidate species, the wolverine will not receive protection under the ESA; however, we will review its status annually and will continue to work with landowners and partners to implement voluntary conservation measures.

The results of status review indicate that climate warming is the primary threat to wolverine. Our evaluation found that the effects of climate warming are serious but so far have not resulted in any detectable population effects to the species. Because the threat of climate warming is not imminent, we will use our resources to work on listing determinations for species at greater risk of extinction.

So, what does this all mean?  It means that the Fish & Wildlife Service, whose finding is quoted above, has determined that wolverines meet the criteria for listing under the Act but that no action will be taken right now because other species are a higher priority.  Continue reading

Wolves, Laws and Parochialism

David Cassuto

I would like to say a few more words about the so-called “State Sovereignty Wildlife Management Act and its stated intent to strip wolves of all Endangered Species Act protections.  While I have no reason to assume this bill will pass (are you listening, Congress?), the fact that officials elected to national office could propose such a thing underscores much of what’s wrong with, well, with everything.

As an initial matter, wolves pose little threat to people.  In the 230+ year history of the United States, the number of wolf attacks can probably be counted on one person’s fingers and toes.  The number of fatal attacks is far fewer.  Wolves do, however, sometimes eat livestock.  Since their reintroduction (emphasis on re– introduction because they used to live there until we exterminated them) into the Northern Rockies, ranchers have raised a royal ruckus because they occasionally lose animals to wolves.  Rather than treat this as a cost of doing business, ranchers argue that the wolves’ existence constitutes an unwelcome intrusion into the natural order of things.  This despite the fact that the wolves used to inhabit the region in far greater numbers than the 1700 or so that currently exist there and that ranching (and the factory farming that it supports) has caused widespread damage to the region’s ecosystem.           Continue reading

Which Animals Matter (yet again)?

Seth Victor

To paraphrase the oft quoted excerpt from Animal Farm, all cute and fuzzy animals are equal, but domesticated cute and fuzzy animals are more equal than others. This sentiment was yet again demonstrated over the last week. In one corner, we have human pets, who are mercilessly being tortured for the pleasure of a rather repugnant fetish in crush videos. After U.S. v. Stevens struck down a law aimed a regulating depictions of cruelty, Congress quickly passed a narrower bill that was signed into law by President Obama on Friday. As reported by ALDF, “the more narrowly written law that emerged makes it a crime to sell or distribute videos showing animals being intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury. It exempts depictions of veterinary and husbandry practices, the slaughter of animals for food, as well as depictions of hunting, trapping or fishing.” Hopefully the narrower scope will survive the inevitable legal challenges.

Continue reading

Bill Would Strip Wolves of ESA Protection — Forever

Apparently still traumatized by their experiences reading Little Red Riding Hood as children, 8 members of Congress  have introduced a bill called the State Sovereignty Wildlife Management Act.  The sole purpose of HR 6485 is to render any listing of wolves as threatened or endangered under the Endangered Species Act legally irrelevant.

You can’t  make this stuff up.

Read an informative post here.

Some Thankful Sea Lions

Gillian Lyons

According to the Oregon Department of Fish and Wildlife, since 2008 40 California Sea Lions have been removed from the Bonneville Dam area (which straddles the Columbia River between Oregon and Washington.) 25 of these sea lions were euthanized, 10 were given to aquariums and 5 were captured and subsequently died (of unspecified causes.)  Why was such a charismatic species being systematically removed from the area?  The sea lions feed on spring chinook salmon and steelhead when the fish become stymied by the Dam and such action was needed, the agency claimed, to protect the endangered and threatened fish runs.  Apparently, however, NMFS determined that only those sea lions that were “persistent offenders” and were caught repeatedly eating salmon or steelhead deserved the “removal” sentence, and as of March 2010, the agency had a list of 64 sea lions eligible to be euthanized for such behavior.         Continue reading

Polar Bears — The New Canary

David Cassuto

Long ago, miners used canaries to measure the build up of toxic gases in the mines where they were working.  If the canary died, it was time to head out because the air was dangerous.  We don’t use canaries in mines anymore.  Now we use polar bears in the Arctic.  The threat to the bear serves as a monitoring mechanism of sorts for the global threat from carbon emissions in the atmosphere.

As you may recall, the impending demise of polar bears due to habitat destruction attributed to global warming generated some hooha not too long ago.  W’s Interior Secretary, Dirk Kempthorne, hemmed and hawed for as long as possible before finally declaring the bear a “threatened” species under the Endangered Species Act.  That designation would normally require federal action to address the cause (global warming) of the bear’s habitat.  However, the Bushies propounded a rule — later embraced by the Obama Administration, excluding carbon emissions from regulation under the ESA.  That made the bear’s victory (such as it was) pyrrhic at best.  Nonetheless, in the heady optimism of the time, many (including me) felt that it was perhaps better to wait for a statute explicitly aimed at mitigating national emissions rather than to use the blunt instrument of the ESA to accomplish a very complex regulatory act.

Continue reading

Research Hunts & Conservation Hunts: New Ways to Fetishize Wolf Slaughter

David Cassuto

Not too long ago, I blogged about the duplicity of Japan’s “research” hunting of whales.  The practice is little more than a disingenuous attempt to circumvent the global ban on whale killing by pretending the slaughter has some scientific purpose.  I called on the rest of the world to repudiate such tactics and to hold them up to public scrutiny and scorn.

Then, a few weeks ago, a federal judge in the U.S.  ruled that gray wolf hunts in the Northern Rockies violated the Endangered Species Act.  Guess what then happened:  U.S. wildlife officials proposed a “research hunt” to kill the wolves. Apparently, their idea was that it was okay to kill listed species as long as you claimed a scientific reason for doing so.  You know, just like they do in Japan with the whales. Continue reading

A New & Welcome Chapter in the Wolf Saga

David Cassuto

I’ve blogged a fair bit about the ill-advised delisting of gray wolves as endangered species in the northern Rockies, as well as about the lawsuit that followed.  When last we left the story, the district court had denied a preliminary injunction that would have stopped the wolf hunts that subsequently took place in Montana and Idaho.  The judge did indicate, though, that the plaintiffs had a strong chance of prevailing on the merits (the standard for a preliminary injunction is formidably high, as discussed here).               Continue reading

Help Wanted: Herpetofauna Attorney

David Cassuto

Are you a herpetofauna attorney?  Do you want to be?  Do you know anyone who is?  Or, like me, do you just like saying “herpetofauna attorney?”  In any case, you may be interested in the job listing below with the Center for Biological Diversity

Continue reading

The Brown Pelican — Another Gulf Casualty

David Cassuto

Pesticides nearly wiped out the brown pelican during the 1960s.  With great care and lots of luck, the species recovered from the brink of extinction.  Now, thanks to BP and our national petroleum addiction, it’s back.

RIP: Stewart Udall

David Cassuto

Stewart Udall has died.  Secretary of the Interior under Presidents Kennedy & Johnson, congressman from Arizona, and architect of many the nation’s most powerful environmental laws, including the Endangered Species Act, Clean Air Act, Wilderness Act, and others, Udall was a visionary and a politician — a combination rarely seen then or since. 

Udall’s 1963 book, The Quiet Crisis, helped launch and continues to inspire the environmental movement.  In his later years, he sued the government on behalf of those exposed to radiation from nuclear testing and uranium mining.  Udall’s efforts led to the passage of the Radiation Exposure Safety Act.  Many of his family, including his son Tom and brother Mo, serve or have served the nation in Congress. 

Read a full obit of this extraordinary man here.

Endangered Sei Whale Sushi — You Just Have to Know Who to Ask

The Hump, a chic Japanese restaurant in Santa Monica, served sushi made from the flesh of the endangered sei whale to customers willing to fork over the appropriate dough.  Two patrons went to the restaurant with an undercover film crew and, after racking up a $600 tab, requested whale meat.  The chef served it up —  it was even identified as such on their tab.  The patrons (and their film crew, who were acting at the behest of Louie Psihoyos, Oscar-winning director of The Cove) smuggled some flesh out of the restaurant, where they had it genetically tested.    Continue reading

Circus Blowback

David Cassuto

The good folks at Ringling Bros. (aka Feld Entertainment Inc.) have taken some time out from bullhooking elephants to file a RICO suit against HSUS and the other plaintiffs in the recent lawsuit about elephant mistreatment and the Endangered Species Act.  The gravamen of the suit lies in the claim that the plaintiffs conspired to to pay Tom Rider, the chief complaining witness, to give false testimony.  Feld alleges bribery, obstruction of justice, fraud and money laundering.

Let us hope for a swift and attorney’s fees-filled end to this frivolous nonsense.

Why It’s Not About the Elephants

David Cassuto

Here now, a few words about the Ringling Brothers case.  The suit focused on the treatment of Asian elephants – an endangered species – by the circus.  Much credible evidence suggests that the elephants were mistreated, both by intent (using bullhooks to “train” them) and by the rigors of the circus life, a life which confined them for much of their lives, prevented them from socializing and from moving freely about and generally forced them to live counter to their instincts and nature.  These allegations and others seemed to place the circus in violation of the Endangered Species Act (ESA), whose “Take” provision (Section 9) prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B).

The term “take,” as used in the ESA, includes actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The Fish and Wildlife Service defines “harm” to include any act that “actually kills or injures wildlife,” including actions that “significantly impair[ ] essential behavioral patterns.” 50 C.F.R. § 17.3. “Harass” under the ESA means: an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.  In sum, the Supreme Court has made clear that the ESA defines “take”  “in the broadest possible manner  to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.’ “ Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,515 U.S. 687, 704 (1995).

On the face of it, the allegations regarding the treatment of the elephants land squarely within the scope of behavior prohibited by the ESA.  This lawsuit marked the first time the ESA had been invoked to cover the treatment of performing elephants.  I do not here have time to summarize the merits and facts of the case; you can read more about it here and here and elsewhere.  I must focus on the procedural posture of the case since it ultimately proved dispositive.   Continue reading

Ringling Brothers Decision — Justice Denied

David Cassuto

The decision is in.  It’s a debacle.  Read about it here.  I’ll have more to say when I’ve studied the opinion.

Desert Rock Power Plant to Be Reassessed in Light of Threat to Fish

David Cassuto


From the Things that Never Would Have Happened Under W Desk:

The Bureau of Indian Affairs has withdrawn its Biological Assessment and the  EPA has also withdrawn the air quality permit they respectively issued last summer for the Desert Rock coal-fired power plant sited for the Navajo Nation in the Four Corners region of New Mexico.  The reason(s): concerns about the impact of heavy metals on two species of endangered fish in the San Juan River.

Sometimes I have to read news like this a few times and remember that the long, savage assault on the natural environment that was 2000-08 has indeed come to a close.  Continue reading

Throwing the Wolves Out With the Bathwater

David Cassuto

Odd editorial in today’s NYT.  On the one hand, it lays bare the hypocrisy and bloodlust behind the wolf hunt in the Northern Rockies.  For example, after several wolves were killed just outside of Yellowstone (outside the park boundary, you can kill them), Montana’s wolf program director said, ““We didn’t think wolves would be that vulnerable to firearms harvest.”  Yeah, right.   Then, in Idaho, when hunters just couldn’t kill enough wolves in time, Idaho extended the season to March 31st.

On the other hand, the editorial claims that environmental groups have lost the argument that endangered grey wolves had not yet reached a sustainable population in the region.  It says that the groups are regrouping around the idea of a hunting moratorium until stronger state management plans can be formulated.  This characterization seems both premature and overstated.   Continue reading

Protecting Animals, One Mouthful at a Time

David Cassuto

Emory University is attempting to preserve “heritage” turkeys by feeding them to its students.  The Standard Bronze and Bourbon Red turkeys are in danger of dying out due to lack of demand.  So, apparently, is the Tennessee Fainting Goat and other species that don’t fit the factory farm mold.  The lede of this Chronicle of Higher Ed. article (pay site but there are day passes…) declares: “Sometimes the best way to save something is to eat it.”  It then describes how Emory ordered 1,600 pounds of birds for its Thanksgiving meals.

I’m fascinated by this rhetoric as well as how this type of logic goes routinely uncontested.  Last time I read the Endangered Species Act, it said nothing about how only edible species merit preserving.  Continue reading

NEPA, Preliminary Injunctions, and Animals

David Cassuto

A few days ago, I and a few colleagues from Pace and several other American law schools met at Shanghai Jiao Tong  University School of Law with a number of Chinese academics and members of the Chinese Ministry of Environment.  We were there because the Chinese government wanted our input as it attempts to reshape the country’s environmental law regime to make it more effective and enforceable.  Towards that end, the members of the Ministry were particularly interested in the United States’ National Environmental Policy Act (NEPA).

NEPA requires that federal agencies contemplating an action that could significantly impact the environment do an assessment to determine the scope and nature of those potential impacts.  This involves a preliminary Environmental Assessment (EA) and then, unless the EA makes clear that no significant environmental impact is possible, a full review in the form of an Environmental Impact Statement (EIS).

NEPA is purely procedural in scope; once an agency carries out a proper review, it can go forward with the proposed action regardless of the potential impact.  However, the assessment process often reveals potential mitigation measures and/or legal hurdles that can change or even halt a given project.

My presentation to the Chinese dealt with the 2008 Supreme Court case, Winters v. NRDC (129 S.Ct 365 (2008)).  In Winters, the NRDC filed suit to stop the Navy from using Mid-Frequency Active Sonar (MFA) during exercises off the California coast until it completed an EIS that adequately documented potential harms to marine mammals.  The Navy lost in the lower courts, where the district court issued (and the circuit court upheld) a preliminary injunction staying the exercise pending resolution of the lawsuit.  The Navy asked for and received an emergency exemption from the President’s Council on Environmental Quality (CEQ) relieving it from compliance with NEPA.  The Navy then went back to the lower courts asking that the injunction be lifted.  The lower courts refused – holding that the CEQ’s action violated the separation of powers.  The Navy appealed to the Supreme Court, which reversed on a number of grounds.

Continue reading

Interior Proposes Polar Bear Habitat

David Cassuto

polar_bear_iceA while back, the Bush Administration reluctantly declared the polar bear threatened (under the Endangered Species Act) due to global warming and shrinking habitat.  It determined, however, that it would not use the ESA as the basis to require steps to curtail climate change.  Indeed, the Bushies had no intention of curtailing climate change at all.  The Obama folks agreed that the ESA was the wrong means through which to make climate policy.  Thus, the bear remained threatened and the government remained unwilling to take steps to protect it Continue reading

Conservation Groups Sue EPA Over Prairie Dog Poison

Jessica Morowitz           

On September 23, Defenders of Wildlife and Audubon Kansas filed a lawsuit in federal court in Washington, D.C., against the EPA for its decision to register pesticides that kill prairie dogs.  The pesticides at issue are chlorophacinone and diphacinone, found in the products Rozol and Kaput-D.  The lawsuit alleges that by registering the use of these pesticides, the EPA is violating several federal laws, including the Endangered Species Act.  The full complaint can be found here.  The suit also alleges that the EPA failed to heed warnings from the Fish and Wildlife Service, which recommended that registrations of the chemicals be disapproved or rescinded due to their known and potential impacts to wildlife. 

Continue reading

Florida’s Python Predicament

Jonathan Vandina

burmese_pythonIt’s 4 PM. The hot Florida sun has warmed the thermo regulated American alligator (Alligator missipiensis) with the ability to satisfy its day long hunger. The tiny touch receptors on the mouth of the apex predator feel an unexpected yet familiar sensation. It’s a slight ripple, a change in water motion coming from the shore. In the mangroves a sub-adult raccoon is cautiously entering the water. The gator sees it. With only its eyes and nostrils protruding from the water it slowly makes its way over to the raccoon as quiet and inconspicuous as a branch caught in the current.  It’s within 8 feet now. The raccoon is playfully digging up shellfish oblivious to the imminent danger. Four feet now, then two then WHAM! An invasive 9 foot Southeast Asian Burmese python (Python bivittatus) strikes from an above hanging mangrove. The gator stops and watches as this alien predator constricts, suffocates, and swallows its long sought after meal. The weather has cooled down. The gators body temperature and energy levels are too low to attack another meal. It will not feed today. What now?

Continue reading

Nonhuman Animals, Human-Created Environments

Cienega_de_santa_claraKarl Coplan

Sunday’s New York Times article about the threat to the La Cienega marsh on the Mexico-US border raises interesting questions about human responsibilities to maintain human-created environments that have been occupied by natural species.  The La Cienega marsh was created by the diversion of Arizona agricultural runoff too high in salt content to be returned to the Colorado River for downstream use.  While the federal government built a desalination plant nearly two decades ago for the purpose of purifying the runoff sufficiently to return it to the Colorado, this plant has never been operable due to technical and budgetary issues, and instead, the salty runoff was diverted through a series of pipes and channels to the Sonoran desert in Mexico.  Fed by this artificial diversion, a saltwater marshland sprang up, and populated itself with Thule grass, pelicans, and endangered Yuma Clapper Rail and Desert Pupfish.

Now, the federal government is planning to activate the desalination plant to recover the saline runoff.  The desal plant will discharge into the Colorado River, satisfying US treaty obligations to maintain Colorado River flow to Mexico, and freeing up more Colorado River water for upstream domestic and agricultural use by thirsty human activities in the Southwest.  The problem is that once the saline runoff is intercepted by the desal plant, the water source for La Cienega will dry up, the thriving wetlands will stop being wet, and the endangered species habitat will disappear.  Remarkably, the environmental impact studies for the desal plant did not consider these impacts on La Cienega. Continue reading

A Sub-Optimal Ruling on the Rocky Mountain Wolf Hunt

WolfJudge Molloy has refused to stop the wolf hunt that has already begun in Idaho and will soon begin (September 15th) in Montana.  Yet his decision to deny the preliminary injunction sought by Defenders of Wildlife, Sierra Club, the Humane Society & others does  acknowledge that the plaintiffs will likely prevail (eventually) on the merits.

Courts will only issue preliminary injunctions (which halt the challenged activity while the court considers its permissibility) when plaintiffs show that they are 1) “likely to succeed on the merits,” (2) that they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) that the “balance of equities tips” in their favor, and (4) that such an injunction is in the“public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

In this case, the court determined that it would likely find that the Fish and Wildlife Service’s decision to delist a portion of a “Distinct Population Segment” of a protected species ran afoul of the Endangered Species Act.  It also concluded that the agency’s decision seemed to contradict its own previous interpretations of its authority under the statute.  Inconsistent agency rulings are not entitled to judicial deference.  Consequently, the court need not defer to the agency’s new interpretation and the plaintiffs would probably prevail. Continue reading

Wolf Hunt Update

wolf-with-pupThe wolf hunt in Idaho and Montana has begun (I first blogged about it here).  A number of environmental groups sued, asking for an injunction but, since Idaho released the details of its plan of the hunt only 2 weeks ago, the court was left with very little time to consider the case.  Consequently, while the court ponders whether an injunction is appropriate, the hunt goes on. Unless and until the court intervenes, Idaho hunters can kill up to 220 wolves,  Montanans 75 wolves, and Nez Perce tribe members 35.

With all respect to the court (and the judge hearing the case has been sympathetic to this issue in the past), I do not understand why an injunction cannot issue immediately.  There is ample evidence to support the fact that a viable  Rocky Mountain wolf population should number at least 2000 (there are currently approximately 1640).  I remain appalled as well with the Obama Administration’s ham-handed, ignorant and insensitive management of this issue.  If you agree with me (and the NYT), I urge you to let President Obama and your congressional delegation know of your dismay.

–David Cassuto

Panthers in the Suburbs

[The op-ed below appeared in the Westchester Herald (ten or so pages after Ed Koch’s movie review and immediately following  Congressmember Nina Lowey’s piece on health care reform).  It deals with recent sightings of what appear to be a large cat in the New York suburbs.  For some good background on the issue, see this New Yorker article and this piece in a local Hudson Valley newspaper.]

pantherReactions to the unconfirmed sightings of panthers in the Palisades and local townships bring a serious ecological dilemma into focus.  Assuming this animal(s) is an eastern panther and not an escaped exotic pet, it is a member of a population of animals once thought extirpated from the Northeast.  That would make any plan to trap the cat and place it in captivity both ecologically misguided and potentially violative of the Endangered Species Act.  The plan also represents a hyperventilated response to understandable community unease.  It would be much better to slow down and carefully consider the implications of the animal’s presence as well as what to do about it.

Continue reading

Canned Hunting of Endangered Species is Illegal

From the Stuff You Probably Thought Was Too Obvious to Have to Sue About Desk:

elk-hunt-01A district court in Washington D.C. has struck down a Bush Era U.S. Fish & Wildlife Service rule that allowed canned hunting of endangered species.  Canned hunting is the shooting of semi-tame animals on fenced  “ranches” (see here for some previous posts).  During canned excursions, the animals have nowhere to run — even if they knew they were in danger — and thus can be slaughtered with ease.  Such “hunts” require no skill (indeed, many “ranches” offer a guaranteed kill).  Reviled by most hunters, they are primarily the province of folks like Dick Cheney and his fellow “sportsmen.”

The Endangered Species Act, Section 9 makes it illegal to “take” any animal on the endangered species list.  Yet, among the animals FWS allowed to be canned and killed were the scimitar-horned oryx, addax and dama gazelle, all endangered African species.  Thus the lawsuit.

To the chagrin of the Safari Club and their ilk, the court found that charging  “sportsmen” big bucks to shoot endangered animals violates the Endangered Species Act.  Kudos to the Humane Society, Defenders of Wildlife, Born Free USA, Kimya Institute and several others for forcing the courts to state the obvious and thus stop at least this part of the slaughter.  Read the HSUS press release here and the Safari Club’s Orwellian spin on how killing these animals actually protects them here.

–David Cassuto