Endangered Species Rulings Reversed

[Calif. Hunter]

whining about the 9th Circuit Court of Appeals and how Dubya needs to appoint Republicans to the Circuit or that the 9th should be split into another circuit with Idaho/Montana/Oregon

Jose - you are unaware that the 9th is the most over-turned district court in the country? It has been that way for both Republican and Democratic administrations.

 

[JoseCuervo]

Jose - you are unaware that the 9th is the most over-turned district court in the country? It has been that way for both Republican and Democratic administrations.

Cali,
Are you smart enough to understand what types of issues frequently come before the 9th and the reason they are overturned?

And did you really mean "overturned" or did you mean "reviewed"?

 

[MattK]

Jose-

And did you really mean "overturned" or did you mean "reviewed"?

Both. I believe the 9th circuit is the most overturned, the busiest and the most reviewed circuit court. I'm not sure if any of that means anything other than tougher issues are brought before this court. It being the largest in quanitity of cases is probably another factor. More cases are probably tested through the 9th circuit as any other. At least the Supreme Court is actually made to work a little.

 

[BigHornRam]

Miller,

It appears CHSR was thinking there was a link between this abuse of the USFWS and the prior lynx fiasco. If he was, he's wrong. Nikster commented on the lynx case, and I followed up. No red herring here unless you are refering to Jose's posts and taunts.

So I'm not entitled to a personal POV?

I'm a middle aged, self employed, white male from Montana (still a red state), that likes to hunt, and owns firearms, and surprise, surprise, I tend to lean conservative. What's the packs excuse?

Is it too much to ask that government funded biologists leave their personal POV's at home and focus on SCIENCE when at work?

 

[BuzzH]

BHR said, "Is it too much to ask that government funded biologists leave their personal POV's at home and focus on SCIENCE when at work?"

Do you feel the same way about civil engineers appointed by the Bush Administration that let their POV's ignore the best science and scientists?

Is it too much to ask from an administration to appoint SCIENTISTS to represent agencies that deal with Fish, wildlife, ecosystems, timber management, etc...you know fields associated with natural sciences?

 

[BigHornRam]

Buzz,

MacDonald couldn't leave her POV at home and was fired for it. I'm all for appointing NON-AGENDA driven scientists. They are getting hard to find however.

 

[mtmiller]

... tend to lean conservative. What's the packs excuse?

I guess you're are including me in the pack. Don't worry, I am right of middle...but then again....

That means politics, left or right, should be left out.

 

[Oak]

Here's a brief summary written by NWF attorney Michael Saul of last Tuesday's
greater sage-grouse ESA listing ruling and its potential implications.

On Tuesday, Idaho U.S. District Judge Lynn Winmill issued a decision in
Western Watersheds Project v. U.S. Forest Service invalidating the Fish
and Wildlife Service's January 2005 "12-month finding," under 16 U.S.C.
1533(b)(6) and implementing regulations, that the petitioned listing of
the greater sage-grouse is "not warranted."

Judge Winmill found the Service's finding was arbitrary and capricious
for four reasons:

1. Contrary to 16 U.S.C. 1533(b)(1)(a), the service failed to base its
decision "solely on the basis of the best scientific and commercial data
available." In what the court deemed an "odd process," the Service
convened a seven-member expert panel to assist in its listing decision--
the court found that the"best science" in the process was represented by
this expert panel, but the Service failed to prepare a transcript or
written report of its deliberations and conclusions, failed to preserve
the "best science for the record," and excluded the expert panel from
substantively recommending whether or not the species should be listed.


Also, it is worth noting that while the court did not specifically
mandate a probability-of-extinction standard for listing, it was quite
critical of the Service's decision that (what the court found to be the
panel's finding of) a 36% chance of (range-wide) extinction within 100
years did not constitue a "likelihood" of "danger of
extinction"--suggesting, but not ruling, that a 20% likelihood on
extinction within 100 years was significant enough for a "threatened"
listing.

Of particular relevance to developments in Wyoming may be the court's
characterization of the expert panel as finding that the risk of
extinction in the eastern portion of the species' range--where the
principal threat is energy development--was 52%.

2. Second, the court rejected the Service's finding because of its
conclusions that "service biologists determined the principal
habitat-related threats are not proceeding at a rate that will threaten
the continued existence of the species within the foreseeable future."
The court found this conclusion flawed because it was based not on the
expert panel's (unrecorded) discussions, but rather off-the record
meetings by the Service Director. Of particular interest, the opinion
also notes with concern the 2004 WAFWA Conservation Assessment and its
finding that rapid energy development is the principal threat to the
species in its eastern region, and finds that the Service failed to
explain why it departed from the Conservation Assessment's conclusions.

3. Third, the court found that the Service had failed to "coherently"
consider the adequacy of existing regulatory mechanisms. With regard to
energy development on BLM land, the Service had concluded that it had no
information on (1) how many leases lacked protective stipulations, (2)
how often stipulations are waived, and (3) whether BLM Best Management
Practices work. This, the court found, didn't justify a finding that
conservation efforts will moderate the rate and extent of habitat loss.

4. Most colorfully, the court also denounced the interference of the
notorious Jule MacDonald in the listing process, in particular her
deletion from Service staff analysis of conclusions regarding the lack
of data on effectiveness of BLM regulatory measures.

So, what does all of this mean in practice? Well, it's important to
note that Judge Winmill did not (indeed cannot) order the species
listed. Rather, he remanded the decision to the agency for further
consideration. A couple of things could happen now. First, the United
States could appeal and may seek a stay of the order pending appeal. If
that doesn't happen, the Service has to prepare a new 12-month finding.
Presumably, there will be further motions and/or negotiation leading to
the Court setting a deadline for when this has to happen.

It's worth noting that the new listing decision is going to be informed
by the new Pinedale and Powder River studies which one would assume will
bolster concerns about habitat loss and adequacy of existing regulatory
mechanisms for the eastern portion of the species' range (i.e., Wyoming,
Montana, and Colorado). Depending on how you count the votes of the
expert panel, it's arguable that if this information changes one vote,
there'd have been a majority of expert views predicting extinction
within 100 years. The new decision will surely also be informed by the
BLM's, the States', and others' claims about the status of existing or
potential conservation efforts, so I think it's safe to say that if
States are interested in avoiding listing from the new process, the
stakes are raised for their conservation plans.

 

[BigHornRam]

What's your interpretation of this summary Oak. Do you think the sage grouse will eventually be listed? Would you like to see the sage grouse listed? Why did the WWP sue the USFS.....why not the USFWS? Do you think the USFWS will be able to hold up to legal challenges by similar minded groups when wolf de-listing moves forward?

 

[Oak]

BHR,
My interpretation of this summary is that Julie MacDonald deliberately excluded the opinions of those that were qualified to make a decision on the need to list or not to list sage-grouse, and made her own decision based on (?). She was caught, fired, and the judge is remanding the decision back to the FWS for further consideration. What is your interpretation?

I think that the sage-grouse will eventually be listed. Not necessarily this time around, but eventually. Do you think the sage-grouse will ever be listed?

I do not believe listing is warranted at this time, but I believe that energy development has the potential to create the need for listing very quicky, if current practices are not altered. Do you think listing is warranted? Why or why not?

I assume that WWP was suing the USFS regarding a management action(grazing????) that was made based on the FWS decision not to list sage-grouse. I'm not sure. Why don't you enlighten me?

If the FWS follows the best available science regarding wolf de-listing, then yes, I believe they will be successful in delisting them. Since you have shown me no legal challenges to the de-listing, I can't really have an opinion on whether or not those challenges will be successful.

 

[BigHornRam]

Oak,

I was reading the Montana Wildlife Federations news letter last night, and it mentioned in an article that they were impressed with the BLM's response to oil/gas drilling / sage grouse conflicts. I think the issues can be worked out without listing the sage grouse. As far as why the WWP sued the USFS.....no clue. Just thought it was odd and maybe you would know more. I don't trust or care for WWP (in case you didn't already know that).

I'm sure the wolf huggers have a number of legal challenge avenues to play out. What they are, I'm not sure. We will soon find out.

 

[mtmiller]

Oak,

I was reading the Montana Wildlife Federations news letter last night, and it mentioned in an article that they were impressed with the BLM's response to oil/gas drilling / sage grouse conflicts.

BLM in MT or BLM throughout the sg range? I didn't read the article.

 

[BigHornRam]

Article is by Ben Lamb and it deals with Montana conflicts Craig. It was good read.

 

[mtmiller]

I did a search, and though I haven't found the article yet, I did find this interview from last week.

Deals more with WY, but interesting none-the-less.

http://www.publicbroadcasting.net/wpr/news.newsmain?action=article&ARTICLE_ID=1192215&sectionID=693

 

[Oak]

Ben Lamb brings up some important points in that interview which I believe many people among the general public do not understand. The BLM is not required to consult with state wildlife agencies regarding impacts of oil and gas development. And unless a species is specifically protected by the ESA or other legislation (ie, Bald and Golden Eagle Protection Act), the BLM is not required by law to take specific measures to protect those species. Numerous protection stipulations are written into RMP's, but most, if not all, contain Exception, Modification, or Waiver options that give local managers the ability to reduce or eliminate protections for wildlife. I think that a majority of the general public assumes that the BLM is required to protect wildlife interests, and that is not always the case.

 

[JoseCuervo]

I think that a majority of the general public assumes that the BLM is required to protect wildlife interests, and that is not always the case.

The BLM is required to protect Livestock and Mining interests, as that is ALWAYS the case...... that along with their unique ability to grow Cheat grass....

 

[1_pointer]

Couple of interesting things about Winmill's decesion. 1. The cover page lists the wrong agency. 2. I didn't think the federal government (ie an agency) could be name in District Court, but that the person making the decision was to be named. I know the few District Court cases I've been involved in named the FO manager not the BLM. Something to do about a balance of powers.

As to a few of Oak's questions, I think the sagegrouse will be listed, but not range wide and not on this go around. I also don't think they will be listed on a range wide basis, mostly due to the fact there's not cause for listing in many areas.