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

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

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.

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

Obama and the Endangered Species Act

Gillian Lyons

During his campaign, Obama’s campaign spokesman noted that,  “as president, Senator Obama will fight to maintain the strong protections of the Endangered Species Act.”  Just a few months after taking office, this statement rang true, when the Obama administration reversed the Bush administration’s eleventh-hour regulation which circumvented Endangered Species Act mandates by allowing federal agencies to make their own determination as to whether their projects would harm endangered species, without having to consult with the Fish and Wildlife Service or the National Marine Fisheries Service.  According to Carl Pope, former executive director of the Sierra Club, this move by the Obama administration brought science back into the Endangered Species decision-making process, and numerous environmental groups hailed the move as a major protective step for threatened species.   Continue reading

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

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

Wolf-delisting: The Politics of Blood

gray-wolf-gazingGeorge Bush and his peeps thought gray wolves should be delisted as endangered species in Montana and Idaho.  So does Ken Salazar and, we must assume, Barack Obama.  Bush and peeps also thought it okay to ignore allies.  So, apparently, do Ken Salazar and Barack Obama.  But never mind politics.

Wolves were hunted to near extinction in this country due in large part to their (undeserved) reputation as dangerous predators and to the caterwauling of ranchers who like to poison, shoot or trap anything that might eat their animals before people do.  Thanks to the Endangered Species Act and a well-executed reintroduction program in the Northwest (carried out over the vociferous protests of ranchers and others), there are now approximately 1600 wolves in the Northern Rockies.

That, apparently, is too many.  Since Montana and Idaho have pledged to maintain populations of 400 and 500 animals, respectively, wolf-hunting may soon commence.  Supposedly, states can be trusted to create sound management plans for the animals.  Idaho Governor Butch Otter has a plan: kill as many as possible without the wolves being relisted.  You see, wolves eat elk and that means less elk for people to shoot.  It’s a crime perpetrated on the American sportsman.  Upon hearing the news of the imminent delisting, Governor Otter howled with glee and declared, “I’m prepared to bid for that first ticket to shoot a wolf myself.”

One wonders if Idaho and Montana will be like Alaska — where “hunters” can shoot wolves from the air.  Or maybe it will just be another classic confrontation of a heavily armed man against an unarmed animal who, when it dies, will almost certainly be attempting to flee.  You see, in the history of the United States, there has never been a fatal attack on a human by a wolf.  Never.

My son is doing a report on wolves for his class.  He has become fascinated by their language, their pack life, and their intelligence.  He is incredulous that they were extirpated from most of the United States and indignant about their undeserved reputation.  Last night, I told him of the Obama Administration’s decision.  He was heartbroken.

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