The Endangered Species Act Reform Project
a nationwide project of Pacific Legal Foundation
www.pacificlegal.org

There has been a lot of activity on the Endangered Species Act front over the past few months. PLF continues to expose the shoddy science used in species listing and critical habitat designations; the battle over water rights is intensifying; and a surprising CWA decision in the Sixth Circuit defied SWANCC. We hope you find the following update on PLF's cases useful. In addition, we've included highlights of other ESA matters we thought would be of interest.

PLF MOVES TO DELIST WESTERN SNOWY PLOVER

On September 24, 2003, PLF filed a 60-day notice of intent to sue the federal government, charging the Fish and wildlife Service with maintaining ESA protections for the western snowy plover based on junk science. PLF filed the notice on behalf of the Surf Ocean Beach Commission (SOBC), which filed a delisting petition for the plovers in July 2002. Although FWS is required to act on SOBC's petition within 90 days, they have yet to do so.

PLF is charging the government with sitting on scientific informationthat justifies removing the plover from protected status. Specifically, PLF argues that data about the Pacific plover demonstrates that the western snowy plover is not a distinct population or separate species entitled to its own set of ESA protections. As a result of the government's designation of critical habitat for the birds, beachgoers and small businesses from Washington to California face severe use restrictions, and even beach closures, on over 200 miles of beaches.
Read the PLF press release.

FWS SKIRTS SCIENCE IN LAKE SHREW LISTING

PLF is fighting another bogus ESA listing in Kern County Farm Bureau v. Norton. In September, PLF filed a brief in support of the Farm Bureau and others who challenged the listing of the Buena Vista Lake Shrew as endangered last year. If the legal challenge is unsuccessful, this case could have a significant impact on the ability to use vested water rights.

The listing process violated several federal laws, including the ESA. FWS failed to rely on recent scientific data in the administrative record, used secret studies not subject to public review, failed to concurrently designate critical habitat, and failed to prepare an environmental assessment. Most significantly, the Service failed to address recent
> scientific information that indicates the lake shrew is not distinguishable from other ornate shrew subspecies, is not a valid subspecies, and therefore, does not meet the legal criteria for listing. An October 2001 report by scientists at California State University Stanislaus concluded "we do not believe that Buena Vista Lake Shrews are endangered now, nor are there foreseeable threats to remaining populations in the near future."
For a full summary of this case.

PLF FIGHTS DANGEROUS PRECEDENT FOR WATER RIGHTS IN THE WEST

On August 14, 2003, a three-judge panel of the Ninth Circuit Court of Appeals sided with the Forest Service and against farmers' water rights in Okanogan v. National Marine Fisheries Service. Last Friday, the Court denied PLF's petition for rehearing en banc. The case sets a precedent that, if not overturned, could wreak economic upheaval in
the western states where water is scarce and water rights invaluable. Accordingly, PLF will be filing a petition for certiorari to the U.S. Supreme Court.

The case centers around the century-old water rights of dozens of Methow River Basin farmers. Underlying the action is a convoluted permitting process that farmers must comply with because their water crosses federal land through ditches. Until recently, the permits had not contained conditions regulating water use. For the past three
growing seasons, however, irrigators have been deprived of water due to a controversial decision by the Forest Service and the National Oceanic and Atmospheric Administration (NOAA) to limit stream flows so that "optimal habitat conditions" might be achieved for listed species such as salmon, steelhead and bull trout. Representing plaintiffs on appeal, PLF argued that the lower court decision wrongly focused on use of federal land, rather than the
privately-owned water rights. That is, the water is the subject at issue -- not the ditches -- and the farmers have a right to the water based on long-standing federal and state law. The Ninth Circuit disagreed. In an unpublished
decision, the Court affirmed the lower court's ruling, holding that a host of land management statutes "give the Forest Service authority to maintain certain levels of flow in the rivers and streams within the boundaries of the Okanogan National Forest to protect endangered fish species," and that this authority extends to the ditches.
PLF Northwest Center Managing Attorney Russ Brooks describes the case this way: "Settled water rights throughout the West are in jeopardy."
Read a PLF press release.

TENTH CIRCUIT PUTS MINNOW BEFORE PEOPLE

A petition for rehearing in Rio Grande Silvery Minnow v. Keys at the Tenth Circuit Court of Appeals has been requested after a decision by a three-judge panel caused an uproar earlier this year. The case involves
the Rio Grande Silvery Minnow, a small fish listed under the ESA, which lives in the Rio Grande basin. In recent years, water that the fish rely upon for survival has become scarce due to drought conditions. However, environmental groups, and now the court, seem oblivious to the fact that the drought is also affecting humans.

Last year, the U.S. Bureau of Reclamation, after consulting with FWS, proposed that the minnows be relocated to upstream portions of the Rio Grande, which would not dry out. Environmental plaintiffs filed suit demanding that, instead, the water from the Heron Reservoir be released into the Rio Grande for the minnow. This complete disregard for scientific findings and expert opinions, not to mention the lack of concern for agriculture and municipal water needs, has become increasingly common among such groups.

Unbelievably, the Tenth Circuit Court of Appeals ruled that the government's first duty was to the fish and that it may divert water contractually obligated to farmers and cities for the benefit of the silvery minnow. PLF's AC brief asked the court to require federal regulators to rely on sound science and balance species protections with important human needs.
Read PLF's article "The ESA: A Growing Question of Whose Ox is Gored."

SIXTH CIRCUIT DEFIES SWANCC

On August 5, 2003, the Sixth Circuit Court of Appeals handed down an unexpected opinion in United States v. Rapanos. Although this is a Clean Water Act case, we continue to keep you updated on it because what the government is putting Mr. Rapanos through is so outrageous. John Rapanos was criminally convicted of filling wetlands on his Michigan property without a federal Clean Water Act permit. The conviction was upheld in
the Sixth Circuit. However, the U.S. Supreme Court vacated the appellate court decision and remanded the case in light of its decision in SWANCC v. Army Corps of Engineers.

In that landmark decision, the Supreme Court determined that federal authority under the Clean Water Act does not extend to wetlands that are isolated, or not adjacent to a traditional navigable waterway. On remand to the District Court, the government argued that Rapanos' wetlands were "adjacent" to navigable waters because they had a surface connection to a navigable waterway - twenty miles away. Relying on SWANCC, the District Court rejected this argument holding that "adjacent" means directly adjacent to navigable waters. The government appealed, and PLF's brief not only supported Mr. Rapanos, but strongly supported the Supreme Court's earlier decision and the precedent set which the government is so diligently attempting to ignore.

A three-judge panel of the Sixth Circuit Court narrowly construed SWANCC, reversed the District Court decision, and reinstated the conviction against Rapanos. The decision is surprising, to say the least, in light of the remand. PLF will be briefing the case in support of Rapanos before the U.S. Supreme Court.
Read the Sixth Circuit decision.

ADDITIONAL ESA NEWS

PUBLIC COMMENT DEADLINE EXTENDED TO OCTOBER 31 FOR PROPOSED LISTING OF
THE CALIFORNIA TIGER SALAMANDER

FWS extended the public comment period for the proposed listing of the California tiger salamander as a threatened species to October 31, 2003. The proposed listing has serious implication for ranchers and farmers in Stanislaus, San Joaquin and Merced counties. As a result, Congressman Dennis Cardoza (D-Merced) has been an outspoken critic of the proposed listing and says he is skeptical of its scientific basis. "The facts simply do not warrant a listing in this situation," Cardoza said in a press release. According to the Turlock Journal, the Stanislaus County Board of Supervisors sent a letter to FWS opposing the listing "primarily because the Service's proposal is not backed by thorough and credible scientific evidence." Last week, PLF joined a panel with Congressman Cardoza and Congressman George Radonovich (R-Mariposa) as part of a public information session on the proposed listing.

The mailing address for comments is U.S. Fish and Wildlife Service, Sacramento Fish & Wildlife Service Office, 2800 Cottage Way, Suite W-2605, Sacramento 95825. Comments may also be submitted electronically to catiger@R1.fws.gov.

NINTH CIRCUIT CALLS ARIZONA PYGMY-OWL LISTING "ARBITRARY AND CAPRICIOUS"

The cactus ferruginous pygmy-owl may be removed from the endangered species list. On August 19, 2003, the Ninth Circuit Court of Appeals ruled that FWS "acted arbitrarily and capriciously" in designating the Arizona pygmy-owl
as a distinct population segment in National Association of Home Builders (NAHB) v. Norton. The court found that "[n]owhere in the listing rule...does the FWS mention the existence of any genetic differences between the pygmy-owls in Arizona and northwestern Mexico, nor does the record provide any evidence to that effect." The court did not set aside the listing, but instead remanded the case back to the District Court to decide.

According to NAHB, the decision "marks the first time in over a decade that a court has ruled that the Service was wrong in listing a species." FWS wants to designate 1.2 million acres of southern Arizona as critical habitat for the owl.
Read the items below:

Ninth Circuit Decision (August 19, 2003)
NAHB Press Release

CRITICAL HABITAT FOR ARKANSAS RIVER SHINER VACATED AND REMANDED

In September, a federal court in New Mexico vacated and remanded the critical habitat designation for the Arkansas River Shiner. The plaintiffs challenged the designation on several grounds, including that FWS improperly used the "incremental baseline approach" in assessing the economic impacts of designation. The Tenth Circuit rejected the use of the baseline approach in New Mexico Cattle Growers Association v. USFWS.

In response, the plaintiffs and FWS reached a settlement agreement that granted FWS until 2007 to complete the new designation. The court rejected the agreement, holding that "in no case may the Service exceed the statutory time limits set forth in the ESA for the promulgating critical habitat designations." FWS must issue a proposed designation no later than one year from the court's order and a final rule no more than one year later. The court did not agree with the argument by Intervenor Center for Biological Diversity (CBD) that the critical habitat rule should remain in place pending remand. Instead, the court vacated the designation, finding that the CBD had presented "little, if any, evidence of resulting harm to the shiner" if the restrictions were lifted and that the listing itself affords significant protections.

In a separate ruling the same day, the court also gave FWS the same two-year time limit to propose a new designation for the southwestern willow flycatcher. The Tenth Circuit specifically set aside the flycatcher designation in New Mexico Cattle Growers more than two years ago.
Read the Shiner opinion.

GAO CALLS ON FWS TO PROVIDE "CLEAR STRATEGIC DIRECTION" FOR CRITICAL HABITAT PROGRAM

In September, the General Accounting Office released a new study in response to concerns about endangered species listing and critical habitat decisions and "the role that 'sound science' plays in the decision-making process." GAO found that "experts, peer reviewers, and others generally support the science behind" listing decisions. (PLF strongly disagrees.) However, GAO reports that "peer reviewers often expressed concern about the specific areas designated, while other experts expressed concerns about the adequacy of the data available to make designations." GAO recommends that FWS provide "clear strategic direction" for the program by "clarifying the role of critical habitat, how and when it should be designated, and recommending policy/guidance, regulatory, and/or legislative changes" to improve it. You may recall from the last letter that PLF provided the GAO with "15 Suggestions for Legislative Reform of the Endangered Species Act" last year.

Unfortunately, the GAO report pays very little attention to the correct analytical model FWS should use in designating critical habitat, a model the federal court carefully delineated in PLF's Alameda whipsnake victory. Instead, the GAO spent most of its time on how FWS is not able to carry out its duties under the ESA very effectively due to the heavy burden of having to meet court-ordered CHD schedules.
Read the full GAO study.

We encourage you to write op-eds, articles, or in other ways to educate the public about the issues discussed above. Should you have any questions about the cases or any of the items in this update, please don't hesitate
to contact me at: esarp@pacificlegal.org, or fax to my attention at (916) 362-2932.