The Endangered Species Act and the Obama Administration

1. The Endangered Species Act and the Obama Administration Federico Cheever, Associate Dean, University of Denver Sturm College of Law October 27, 2009

2. Interior -- The Cast • Secretary of the Interior – Ken Salazar • Deputy Secretary -- David Hayes • Assistant Secretary for Fish, Wildlife and Parks – Tom Strickland • Deputy Assistant Secretary for Fish Wildlife and Parks – Will Shafroth • Counselor – Michael Bean • Director of Fish and Wildlife Service – Sam Hamilton

3. Commerce – The Cast • Secretary of Commerce – Gary Locke • NOAA Administrator – Jane Lubchenco

4. The Issues That Can’t Be Avoided • Wolves – Recovery, Regulation and Hunting • Climate Change – Polar Bears, Pikas and Penguins • Klamath Basin – Salmon, Farmers and Tribes

5. Wolves

6. SECTION 2 (b) Purposes The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species . . . .

7. SECTION 3 (3) The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. . . .

8. SECTION 3 (6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.

10. SECTION 3 (20) The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

12. SECTION 3 (16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

13. Section 3 (6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range . . .

14. www.arts.arizona.edu/

15. www.sci.sdsu.edu

16. Standing alone, the phrase "in danger of extinction throughout ... a significant portion of its range" is puzzling. According to the Oxford English Dictionary, "extinct" means "has died out or come to an end. . . . Of a family, class of persons, a race of species of animals or plants: Having no living representative." Thus, the phrase "extinc[t] throughout ... a significant portion of its range" is something of an oxymoron. Defenders of Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir. 2001)

17. www.wolftracker.com/gallery/index.htm

19. The Secretary argues that the DPSs are based on sound biology. Each DPS encompasses a gray wolf recovery population, its recovery areas, the locations of all documented dispersers, the most likely locations of future dispersers, and a wide buffer between the core area and the boundary of the DPS to ensure that it is markedly separate from other DPSs. Defenders of Wildlife v. DOI, 354 F. Supp. 2d 1156 1170 (D. Or. 2005)

20. http://www.fws.gov/midwest/wolf/esa-status/index.htm

21. United States District Court (D. Vermont.) NATIONAL WILDLIFE FEDERATION, Plaintiffs, v. Gale NORTON, Defendants. Aug. 19, 2005. Background: Wildlife conservation groups brought action for declaratory and injunctive relief against Department of the Interior's (DOI) decision, pursuant to the Endangered Species Act (ESA), to reclassify the gray wolf from endangered to threatened status in much of the United States. Parties cross-moved for judgment. Holdings: The District Court, Murtha, J., held that: . . . .final rule, which downgraded the gray wolf from endangered to threatened status in two DPSs, constituted an arbitrary and capricious application of the ESA. Judgment for plaintiffs.

22. “Delisting” http://www.fws.gov/midwest/wolf/esa-status/index.htm

25. Western Great Lakes Wolf Population • April 2, 2009, Final Rule Delisting Great lakes Wolf Population – Again • June 15, 2009, Suit Against DOI for Delisting • July 1, 2009, Court Approved Settlement • September 16, Final Rule Reinstating Protections for WGL Wolf Population

26. Northern Rocky Mountains Wolf Population • April 2, 2009, Final Rule Delisting Northern Rocky Mountain Population – Again EXCEPT IN WYOMING “We determine that the best scientific and commercial data available demonstrates that (1) the NRM DPS is not threatened or endangered throughout "all" of its range (i.e., not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms.”

27. June 2, 2009 Lawsuit last hope for long-term wolf recovery in Northern Rockies Suit filed as a last resort WASHINGTON – Today, Defenders of Wildlife and 12 other conservation groups filed a lawsuit asking the courts to reverse the ill-timed and unwarranted removal of Endangered Species Act protections for wolves in the Northern Rockies. The lawsuit is a last resort, and only comes after exhausting all other reasonable options. Regrettably, Interior Secretary Ken Salazar failed to fully consider both scientific and legal inadequacies underlying the Bush administration’s delisting rule before adopting it on April 2, 2009.  The Bush administration delisting rule adopted by Salazar essentially allows over two-thirds of the region’s wolves to be killed before the U.S. Fish and Wildlife Service would even consider stepping back in and restoring protections

28. Climate Change

29. www.nmfs.noaa.gov Threatened Species -- May 2006 Critical Habitat -- November 2008

30. Threatened Species – May 2008 4(d) Rule – December 2008

31. Base map shows the cumulative number of months per decade where optimal polar bear habitat was either lost (red) or gained (blue) from 2001-2010 to 2041-2050. Insets show the average annual (S 12 months) cumulative area of optimal habitat (right y-axis, line plot) for four 10-year periods in the 21st century Courtesy of USGS.

32. Southern Rockhopper Penguin 12 Month Petition Finding – December 2008 American Pika – 90 Day Petition Finding – May 2009

33. s190.photobucket.com Spotted Seal --12 Month Petition Finding – October 2009

34. fws.gov

35. Klamath

36. Plan Outlines Removal of Four Dams on Klamath River A draft plan to remove four aging dams along the Klamath River in Oregon and California was released Wednesday, a long-awaited step toward ending a protracted dispute over the waterway. New York Times, September 30, 2009

37. Obama Follows Bush on Salmon Recovery SEATTLE — In its first major effort to address the plight of endangered salmon in the Pacific Northwest, the Obama administration on Tuesday affirmed basic elements of a recovery plan set forth last year by the Bush administration. The announcement angered critics of federal conservation policies, who said the Bush plan did not go far enough in improving fish habitats in the Columbia River basin or water levels in rivers for migrating fish and did not take immediate action to explore whether to remove four dams on the lower Snake River. New York Times, September 15, 2009

38. The Issues That Can be Avoided • Continental Biodiversity Strategy – Inventories, Refuge Networks • International Cooperation on Biodiversity Preservation • The Basics – Law, Science and Public Participation

39. International Cooperation

41. Assistant Secretary Strickland Announces Support for Listing Atlantic Bluefin Tuna on International Trade Endangered Species List October 15, 2009 Tom Strickland, Assistant Secretary of the Interior for Fish and Wildlife and Parks, announced that the United States supports a proposal submitted by the principality of Monaco to list the Atlantic bluefin tuna (Thunnus thynnus) in Appendix I of the Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES). CITES Appendix-I listing affords a species stringent protection and prohibits all international commercial trade. The fifteenth regular meeting of the CITES parties is scheduled for March 13-24, 2010 in Doha, Qatar (CoP15).

42. The Basics -- Law, Science and Public Participation

43. The Obama administration says it is going to change how candidate species are handled. The Fish and Wildlife Service, the Interior agency responsible for the management of endangered species, is working on an accelerated listing process, said Doug Krofta, the service's listing chief. With new techniques and more funding, Krofta said, the service can trim the candidate list by 25 percent by the end of 2010. "I think we're getting closer to ... getting that 12-month finding within 12 months," Krofta said. "If you were to give me a petition now ... I'll likely be able to respond within a year. Where we were a couple years ago, it would be four to five to six years.” New York Times, September 9, 2009

44. Endangered Species Act Section 4(g) Monitoring (1988 Amendments) (1) The Secretary shall implement a system in cooperation with the States to monitor effectively for not less than five years the status of all species which have recovered to the point at which the measures provided pursuant to this chapter are no longer necessary and which, in accordance with the provisions of this section, have been removed from either of the lists published under subsection (c) of this section . . .

45. 74 Fed. Reg. 48595 (September 23, 2009) DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Endangered and Threatened Wildlife and Plants; Draft Post-Delisting Monitoring Plan for the Concho Water Snake AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of availability of draft post-delisting monitoring plan. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the availability of our Post-Delisting Monitoring Plan for the Concho water snake (Nerodia paucimaculata). The draft post-delisting monitoring (PDM) plan describes the methods we propose to monitor the status of the snake and its habitat, in cooperation with the State of Texas and other conservation partners, for a 15-year period if we remove this species from the Federal list of endangered and threatened wildlife under another pending action. The draft PDM plan also provides a strategy for identifying and responding to any future population declines or habitat alterations.