PACIFIC LEGAL FOUNDATION FILES LAWSUIT TO
DELIST WESTERN SNOWY PLOVER
Volumes of Scientific Data Show ESA Listing Is Based on Junk Science
SACRAMENTO, CA; February 3, 2004: Pacific Legal Foundation today asked a federal court to jump-start the process to remove the Western Snowy Plover from the list of threatened species under the Endangered Species Act (ESA), charging the U.S. Fish and Wildlife Service with maintaining protections for the bird based on junk science. PLF filed the lawsuit on behalf of the Surf Ocean Beach Commission (SOBC) and the City of Morro Bay, which filed delisting petitions for the plover in July, 2002, and June, 2003, respectively. The ESA requires the government to respond to delisting petitions within 90 days.
"The government is kicking people off of beaches from California to Washington, while refusing to look at hundreds of pages of scientific data showing that the plover is not threatened," said PLF attorney Greg Broderick. "If the government is going to keep people off the beach and cripple the coastal economy, they should at least look at the science."
PLF is charging the government with sitting on the two delisting petitions, each including over 500 pages of scientific data, university studies, government documents, and news articles, that justify delisting the plover and lifting unnecessary beach restrictions. Both SOBC and the City of Morro Bay argue that the data included in their petitions demonstrate that the Pacific Coast population of the plover is indistinguishable from the inland population, and therefore does not qualify for listing as a distinct population.
FWS listed the Pacific Coast population of the Western Snowy Plover as "threatened" under the ESA in 1993, claiming that it was a "distinct" population of the species from the interior population of the plover. The government may only list a distinct population segment of a species if it is markedly separated from other populations and vital to the species.
As a result of the Western Snowy Plover's protected status and the government's designation of critical habitat for the birds, beachgoers from Washington state to Baja, California, face severe use restrictions and, in some cases, beach closures. People can no longer enjoy beach recreation and local communities, like the City of Morro Bay, have suffered financially due to lost tourism and tax revenue. PLF is asking the court to order the U.S. Fish and Wildlife Service to act on the delisting petitions within 30 days.
"The government is prohibiting basically all activity-including even walking on the sand-on over 200 miles of beaches when the plovers aren't even threatened," said Broderick. "The government is violating the ESA by ignoring the data, so we're asking the court for action."
The SOBC is an association of beachgoers, community members and small business owners dedicated to beach access and recreation and scientifically sound environmental protection. The Friends of Oceano Dunes, a 26,000-member nonprofit organization that supports public access to beach recreation, has worked closely with SOBC in bringing this lawsuit. SOBC and the City of Morro Bay filed this lawsuit after months of working with the government without results.
About Pacific Legal Foundation
PLF is a national leader in the effort to reform the Endangered Species Act and raise awareness of the Act's impact on people. PLF's headquarters are in Sacramento, California. More information is available at www.pacificlegal.org.
# # #
Full Version: Lawsuit Filed To Delist Western Snowy Plover
I was just reading this and all I can say is...
WOOOOOOOO HOOOOOOOOOO!
WOOOOOOOO HOOOOOOOOOO!
Jim Suty and the "Friends" of these dunes are to be commended. Jim shared this tactic of a lawsuit for me a few months ago. He has been working with PLF for more than a year now on this issue and provided a great deal of time, research and dedication to this issue.
The "Friends" were helped to form by Ed Waldheim, President of CORVA.
The "Friends" were helped to form by Ed Waldheim, President of CORVA.
California groups sue to strip coastal bird of protected status
By Terence Chea
ASSOCIATED PRESS
4:42 p.m. February 3, 2004
SAN FRANCISCO - The city of Morro Bay and a Santa Barbara County
citizens group filed suit Tuesday to remove the western snowy plover
from the federal list of threatened species, arguing that the
decision to protect the coastal bird is based on "junk science."
The lawsuit, filed in U.S. District Court in Sacramento, seeks to
force the U.S. Fish and Wildlife Service to respond to petitions to
strip the snowy plover of its protected status and end restrictions
on beaches where it breeds.
The plaintiffs say the federal protections are keeping people off
Central California beaches and hurting coastal communities that rely
on business from beach-going tourists.
"It's killing business, and when you kill business, it kills the
local tax base," said Greg Broderick, an attorney for the
Sacramento-based Pacific Legal Foundation, which is representing the
plaintiffs. "They don't want to be thrown off the beach for a bird
that isn't really threatened."
Still, some environmental groups are skeptical of attempts to delist
the snowy plover, claiming that extensive studies have shown that the
species indeed is threatened.
"Focusing on delisting the species is misguided," said Karen Kraus,
an attorney with the Santa Barbara-based Environmental Defense
Center. "The fact is the western snowy plover is a threatened
species, and steps need to be taken to protect it."
The U.S. Fish and Wildlife hasn't seen the lawsuit and wouldn't
comment on it, but the agency is in the process of reviewing the
petitions, said spokesman Al Donner. He said no decision has been
made.
The western snowy plover is a small shorebird that lays eggs in tiny
nests on coastal beaches from Washington state to Baja California in
Mexico.
In 1993, the U.S. Fish and Wildlife Service listed the bird as a
threatened species after environmentalists argued that its Pacific
Coast population was a distinct group of birds that faced the threat
of extinction. Under the Endangered Species Act, a threatened species
can't be harmed or killed, and its habitat must be protected.
As a result, some Pacific Coast beaches, including Surf and Ocean
beaches in Santa Barbara County, were designated critical habitat and
partially closed during the plover's breeding season, which runs from
March to September.
In response, citizens and small business owners formed a group called
the Surf-Ocean Beach Commission and filed a petition to delist the
plover in 2002. The city of Morro Bay filed a similar petition last
year.
Each group filed more than 500 pages of scientific data that they say
backs their claim that the Pacific Coast population of the western
snowy plover doesn't meet the government's criteria for a threatened
species.
Under federal law, the Fish and Wildlife Service is required to
answer delisting petitions within 90 days. When the groups didn't
receive a response, they filed suit, asking the federal court to
force the agency to examine their petitions.
By Terence Chea
ASSOCIATED PRESS
4:42 p.m. February 3, 2004
SAN FRANCISCO - The city of Morro Bay and a Santa Barbara County
citizens group filed suit Tuesday to remove the western snowy plover
from the federal list of threatened species, arguing that the
decision to protect the coastal bird is based on "junk science."
The lawsuit, filed in U.S. District Court in Sacramento, seeks to
force the U.S. Fish and Wildlife Service to respond to petitions to
strip the snowy plover of its protected status and end restrictions
on beaches where it breeds.
The plaintiffs say the federal protections are keeping people off
Central California beaches and hurting coastal communities that rely
on business from beach-going tourists.
"It's killing business, and when you kill business, it kills the
local tax base," said Greg Broderick, an attorney for the
Sacramento-based Pacific Legal Foundation, which is representing the
plaintiffs. "They don't want to be thrown off the beach for a bird
that isn't really threatened."
Still, some environmental groups are skeptical of attempts to delist
the snowy plover, claiming that extensive studies have shown that the
species indeed is threatened.
"Focusing on delisting the species is misguided," said Karen Kraus,
an attorney with the Santa Barbara-based Environmental Defense
Center. "The fact is the western snowy plover is a threatened
species, and steps need to be taken to protect it."
The U.S. Fish and Wildlife hasn't seen the lawsuit and wouldn't
comment on it, but the agency is in the process of reviewing the
petitions, said spokesman Al Donner. He said no decision has been
made.
The western snowy plover is a small shorebird that lays eggs in tiny
nests on coastal beaches from Washington state to Baja California in
Mexico.
In 1993, the U.S. Fish and Wildlife Service listed the bird as a
threatened species after environmentalists argued that its Pacific
Coast population was a distinct group of birds that faced the threat
of extinction. Under the Endangered Species Act, a threatened species
can't be harmed or killed, and its habitat must be protected.
As a result, some Pacific Coast beaches, including Surf and Ocean
beaches in Santa Barbara County, were designated critical habitat and
partially closed during the plover's breeding season, which runs from
March to September.
In response, citizens and small business owners formed a group called
the Surf-Ocean Beach Commission and filed a petition to delist the
plover in 2002. The city of Morro Bay filed a similar petition last
year.
Each group filed more than 500 pages of scientific data that they say
backs their claim that the Pacific Coast population of the western
snowy plover doesn't meet the government's criteria for a threatened
species.
Under federal law, the Fish and Wildlife Service is required to
answer delisting petitions within 90 days. When the groups didn't
receive a response, they filed suit, asking the federal court to
force the agency to examine their petitions.
http://a257.g.akamaitech.net/7/257/2422/14...004/04-6082.htm
[Federal Register: March 22, 2004 (Volume 69, Number 55)]
[Notices]
[Page 13326-13329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr04-80]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To Delist the Pacific Coast Population of the Western Snowy
Plover and Initiation of a 5-Year Review
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review for the 12-month finding and 5-year review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to remove the Pacific coast population of
the western snowy plover (Charadrius alexandrinus nivosus) from the
Federal List of Threatened and Endangered Wildlife and Plants (List)
pursuant to the Endangered Species Act (Act) [16 U.S.C. 1531 et seq.].
We find that the petition presents substantial information that
delisting the Pacific coast population of the western snowy plover may
be warranted, and are initiating a status review. We are requesting
submission of any new information on the Pacific coast population of
the western snowy plover since its original listing as a threatened
species in 1993. Following this status review, we will issue a 12-month
finding on the petition to delist. Because a status review is also
required for the 5-year review of listed species under section
4©(2)(A) of the Act, we are electing to prepare these reviews
simultaneously. At the conclusion of these simultaneous reviews, we
will issue the 12-month finding on the petition, as provided in section
4(
(3)( of the Act, and make the requisite finding under section
4©(2)( of the Act based on the results of the 5-year review.
DATES: The finding announced in this document was made on February 20,
2004. To be considered in the 12-month finding on this petition or the
5-year review, comments and information
[[Page 13327]]
should be submitted to us by May 21, 2004.
ADDRESSES: Comments, material, information, or questions concerning
this petition and finding should be sent to Field Supervisor,
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,
2800 Cottage Way, Sacramento, California 95825-1846. The petition,
finding, and supporting information are available for public inspection
by appointment during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Glen Tarr or Arnold Roessler, Fish and
Wildlife Biologists, at the above Sacramento address (telephone: (916)
414-6600).
SUPPLEMENTARY INFORMATION:
Background
Section 4((3)(A) of the Endangered Species Act (Act) [16 U.S.C.
1531 et seq.] requires that we make a finding on whether a petition to
list, delist, or reclassify a species presents substantial information
to indicate the petitioned action may be warranted. To the maximum
extent practicable, we must make the finding within 90 days of
receiving the petition, and must promptly publish the finding in the
Federal Register. If we find substantial information exists to support
the petitioned action, we are required to promptly commence a status
review of the species (50 CFR 424.14). ``Substantial information'' is
defined in 50 CFR 424.14( as ``that amount of information that would
lead a reasonable person to believe that the measure proposed in the
petition may be warranted.'' Petitioners need not prove that the
petitioned action is warranted to support a ``substantial'' finding;
instead, the key consideration in evaluating a petition for
substantiality involves demonstration of the reliability and adequacy
of the information supporting the action advocated by the petition.
The factors for listing, delisting, or reclassifying a species are
described at 50 CFR 424.11. We may delist a species only if the best
scientific and commercial data available substantiate that it is
neither endangered nor threatened. Delisting may be warranted as a
result of: (1) Extinction; (2) recovery; and/or (3) a determination
that the original data used for classification of the species as
endangered or threatened were in error.
On March 5, 1993, we listed the Pacific Coast population of the
western snowy plover (58 FR 12864). Critical habitat for the species
was designated on December 7, 1999 (64 FR 68508). On June 19, 2003, the
U.S. District Court for the District of Oregon found that our critical
habitat designation was not consistent with the requirements of section
4((2) of the Act, and remanded the designation to us; the Court
partially vacated the 1999 critical habitat designation.
Biology and Distribution
Snowy plovers are small shorebirds, about 16 centimeters (6 inches)
long, with pale brown upperparts, buff colored bellies, and darker
patches on their shoulders and heads. Their dark gray to black legs are
a useful distinguishing feature when comparing to other plover species
(Page et al. 1995a). Two subspecies of snowy plover nest in North
America: the western snowy plover (WSP) and the Cuban snowy plover.
The nesting range of the first subspecies, the western snowy plover
(Charadrius alexandrinus nivosus), includes sites in Baja California,
California, Oregon, Washington, Nevada, Utah, Arizona, Colorado, New
Mexico, Kansas, Oklahoma, Texas, and central and northeastern Mexico,
as well as irregularly visited sites in Saskatchewan, Wyoming, and
Montana (Page et al. 1995a). In 1993, we determined that the coastal
population of the western snowy plover (Pacific Coast WSP) was a
separate distinct population segment from the interior populations and
defined the Pacific Coast WSP as only those western snowy plovers
``that nest adjacent to or near tidal waters'' of the Pacific Ocean (58
FR 12864).
The second North American subspecies, the Cuban snowy plover
(Charadrius alexandrinus tenuirostris), nests generally east of
Louisiana at various locations along the Gulf of Mexico, including
Florida, the Bahamas, the Yucatan Peninsula, and Puerto Rico. The Cuban
snowy plover is distinguished primarily by paler plumage, and some
accounts consider it to be simply a paler version of the western snowy
plover rather than a separate subspecies (Page et al. 1995a).
With the exception of individuals in the Pacific Coast WSP, and in
southern California, Arizona, New Mexico, and Texas, western snowy
plovers in the United States migrate between winter and summer ranges
(Page et al. 1995a, 1995b). Breeding takes place only at the summer
location. Some Pacific Coast WSP individuals migrate to other Pacific
coast sites for breeding, while others remain resident year round.
Plovers hatched at interior sites west of the Rocky Mountains migrate
to wintering locations on the Pacific coast and in the Gulf of
California, where they may mix with birds from the Pacific Coast WSP
(Page et al. 1995a, 1995b). However, evidence from several banding
studies indicates the two populations separate out again to nest (Gary
Page, et al., Point Reyes Bird Observatory, in litt. 2002.).
The timing of the nesting season varies with location, but in
coastal California it tends to run from March through September (Page
et al. 1995a). Breeding locations tend to be sandy areas close to
water, including beaches, salt pans, and alkaline playas. Clutches,
which most commonly consist of three eggs, are laid in shallow scrapes
or depressions in the sand. Snowy plovers generally form monogamous
pair bonds and share incubation duties, but western snowy plover
females typically desert the brood shortly after hatching, and may
renest with a new male if time remains in the season to do so. Males
typically care for the young until they fledge, which takes about a
month, and may then also renest with a new partner if sufficient time
remains in the season (Stenzel et al. 1994). This results in a serially
polygamous breeding system in which males may double clutch and females
triple clutch during a single season (Page et al. 1995a).
Review of Petition
We received a petition dated July 29, 2002, from the Surf-Ocean
Beach Commission of Lompoc, California, to delist the Pacific Coast WSP
pursuant to the Act. We also received a similar petition dated May 30,
2003, from the City of Morro Bay, California. As explained in our 1996
Petition Management Guidance (Service 1996), subsequent petitions are
treated separately only when they are greater in scope or broaden the
area of review of the first petition. The City of Morro Bay petition
repeats the same information provided in the Surf-Ocean Beach
Commission petition and will therefore be treated as a comment on the
first petition received.
The petition states that the original decision to list the Pacific
Coast WSP was in error on the grounds that it fails to meet any of the
three elements (discreteness, significance, and conservation status) of
our policy regarding the recognition of distinct vertebrate population
segments (DPS policy) (61 FR 4722). The Act defines listable
``species'' to include taxonomic species, subspecies, and ``any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). Because
the Pacific Coast
[[Page 13328]]
WSP is not a taxonomic species or subspecies, it must be a distinct
vertebrate population segment (DPS) in order to qualify for listing.
Although we had not yet published our DPS policy when we listed the
Pacific Coast WSP, the policy states that ``[a]ny DPS of a vertebrate
taxon that was listed prior to implementation of this policy will be
reevaluated on a case-by-case basis as recommendations are made to
change the listing status * * *'' (61 FR 4722 at 4725). The petition's
application of the DPS policy to the Pacific Coast WSP is addressed
below.
To qualify for listing under the DPS policy, a population must
demonstrate both discreteness and significance in relation to the
remainder of the species (61 FR 4722). The petition states that the
Pacific Coast WSP does not meet the discreteness criterion. The
relevant condition for satisfying this criterion requires the
population to be ``markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation'' (61 FR 4725).
The petition cites an unpublished master's thesis that found no
significant genetic differences between the Pacific Coast WSP and other
populations of snowy plover (Gorman 2000). This study was designed to
provide a broad overview of genetic differences in western and Cuban
snowy plovers across the western hemisphere, rather than to
differentiate between the Pacific Coast WSP and its inland neighbor
populations (S. Haig, U.S. Geological Survey, in litt. 2002). For
example, the study only sampled from two highly separated sites within
the coastal population (southern Oregon and southern California), and
two highly separated sites outside the coastal population west of the
Rockies (Abert Lake in eastern Oregon and the Great Salt Lake in Utah).
It also compared segments of mitochondrial DNA that varied little
across the entire range of subjects studied.
In the final listing rule (58 FR 12864), we determined that the
Pacific Coast WSP is isolated based on numerous banding studies and
surveys conducted on coastal and interior birds (Spear 1979; Stenzel
and Peaslee 1979; Henderson and Page 1979; Widrig 1980; Page and
Stenzel 1981; Page et al. 1983; Wilson-Jacobs and Meslow 1984; Warriner
et al. 1986; Herman et al. 1988; Page and Bruce 1989; Stern et al.
1990a, 1990b, 1991a, 1991b; Page et al. 1991). This determination has
been supported by additional banding studies and surveys (Oregon
Department of Fish and Wildlife (ODFW) 1994; Palacios and Alfaro 1994;
Paton 1994; Persons 1994, 1995; Stenzel et al. 1994; Page et al. 1995b;
Gary Page, et al., Point Reyes Bird Observatory, in litt. 2002; Steve
Henry, Service, in litt. 2003). These banding studies and surveys
documented numerous examples of coastal and interior birds changing
breeding sites within their respective populations (e.g., Stenzel, et
al. 1994), but only showed two definite cases of interbreeding across
populations. Both of these were females that hatched or had bred in the
coastal population and had then nested at inland California sites (Page
et al., in litt. 1989; 58 FR 12864; Stenzel et al. 1994).
However, although the banding studies and surveys on which we based
our isolation determination showed only two definite instances of
interbreeding, they also produced several sightings of birds that might
possibly have interbred. For instance: (1) Stenzel et al. (1994)
mentions four coastal females and four males at inland nesting sites;
(2) the Service's draft recovery plan for the species (Service 2001)
mentions three coastal females and one male at interior nesting sites;
and (3) a letter from G. Page, Point Reyes Bird Observatory (PRBO),
(1989) refers to a male ``born on the coast'' and ``found nesting in
the interior.'' According to PRBO notes, this last bird, which was also
mentioned in Stern (1990a), was actually first banded on the coast in
November and so may have hatched inland (L. Stenzel, pers. comm. 2003).
Additionally, while the number of banded birds and survey coverage of
nesting sites has been extensive, we have not closely examined the
extent to which the greatest banding efforts may have coincided with
the most comprehensive survey efforts. We also have not looked closely
at the extent to which bands may have been overlooked or improperly
documented by the surveys.
The Gorman thesis and the information in our files regarding
possible interbreeding raise issues relevant to a DPS determination
that we conclude should be examined more closely in a status review.
During this review, we will reevaluate our DPS determination for this
population in accordance with our DPS policy (61 FR 4722). The petition
also presents information regarding the significance of the Pacific
Coast WSP under the DPS policy, and regarding the extent to which the
population may actually be threatened. We will address that information
more thoroughly in the status review.
Finding
We have reviewed the petition and the supporting documents, as well
as other information in our files. We find that the petition and other
information in our files presents substantial information that
delisting the Pacific Coast WSP may be warranted, and are initiating a
status review. We will issue a 12-month finding in accordance with
section 4((3)( of the Act as to whether or not delisting is
warranted.
Five-Year Review
Section 4©(2)(A) of the Act requires that we conduct a review of
listed species at least once every five years. We are then, under
section 4©(2)(, to determine, on the basis of such a review,
whether or not any species should be removed from the List (delisted),
or reclassified from endangered to threatened, or threatened to
endangered. Our regulations at 50 CFR 424.21 require that we publish a
notice in the Federal Register announcing those species currently under
active review. This notice announces our active review of the Pacific
Coast WSP.
Public Information Solicited
We are requesting information for both the 12-month finding and the
5-year review, as we are conducting these reviews simultaneously.
When we make a finding that substantial information exists to
indicate that listing or delisting a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting any
additional information, comments, or suggestions on the Pacific Coast
WSP from the public, other concerned governmental agencies, Tribes, the
scientific community, industry or environmental entities, or any other
interested parties. Information sought includes any data regarding
interbreeding with other populations, historical and current
distribution, biology and ecology, ongoing conservation measures for
the species or its habitat, and threats to the species or its habitat.
We also request information regarding the adequacy of existing
regulatory mechanisms.
The 5-year review considers all new information available at the
time of the review. This review will consider the best scientific and
commercial data that has become available since the current listing
determination or most recent status review, such as:
[[Page 13329]]
A. Species biology including, but not limited to, population
trends, distribution, abundance, demographics, and genetics;
B. Habitat conditions including, but not limited to, amount,
distribution, and suitability;
C. Conservation measures that have been implemented that benefit
the species;
D. Threat status and trends;
E. Other new information, data, or corrections including, but not
limited to, taxonomic or nomenclatural changes, identification of
erroneous information contained in the List, and improved analytical
methods.
If you wish to comment for either the 12-month finding or 5-year
review, you may submit your comments and materials to the Field
Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES
section). Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Respondents may request that we withhold a respondent's
identity, as allowable by law. If you wish us to withhold your name or
address, you must state this request prominently at the beginning of
your comment. However, we will not consider anonymous comments. To the
extent consistent with applicable law, we will make all submissions
from organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety. Comments
and materials received will be available for public inspection, by
appointment, during normal business hours at the above address.
References Cited
A complete list of all references cited in this finding is
available, upon request, from the Sacramento Fish and Wildlife Office
(see ADDRESSES section).
Author
The primary author of this document is Glen Tarr (see ADDRESSES
section).
Authority
The authority for this action is section 4 of the Endangered
Species Act of 1973 (16 U.S.C. 131 et seq.).
Dated: February 20, 2004.
Marshall Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-6082 Filed 3-19-04; 8:45 am]
BILLING CODE 4310-55-P
[Federal Register: March 22, 2004 (Volume 69, Number 55)]
[Notices]
[Page 13326-13329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr04-80]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To Delist the Pacific Coast Population of the Western Snowy
Plover and Initiation of a 5-Year Review
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review for the 12-month finding and 5-year review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to remove the Pacific coast population of
the western snowy plover (Charadrius alexandrinus nivosus) from the
Federal List of Threatened and Endangered Wildlife and Plants (List)
pursuant to the Endangered Species Act (Act) [16 U.S.C. 1531 et seq.].
We find that the petition presents substantial information that
delisting the Pacific coast population of the western snowy plover may
be warranted, and are initiating a status review. We are requesting
submission of any new information on the Pacific coast population of
the western snowy plover since its original listing as a threatened
species in 1993. Following this status review, we will issue a 12-month
finding on the petition to delist. Because a status review is also
required for the 5-year review of listed species under section
4©(2)(A) of the Act, we are electing to prepare these reviews
simultaneously. At the conclusion of these simultaneous reviews, we
will issue the 12-month finding on the petition, as provided in section
4(
(3)( of the Act, and make the requisite finding under section 4©(2)(
of the Act based on the results of the 5-year review.DATES: The finding announced in this document was made on February 20,
2004. To be considered in the 12-month finding on this petition or the
5-year review, comments and information
[[Page 13327]]
should be submitted to us by May 21, 2004.
ADDRESSES: Comments, material, information, or questions concerning
this petition and finding should be sent to Field Supervisor,
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,
2800 Cottage Way, Sacramento, California 95825-1846. The petition,
finding, and supporting information are available for public inspection
by appointment during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Glen Tarr or Arnold Roessler, Fish and
Wildlife Biologists, at the above Sacramento address (telephone: (916)
414-6600).
SUPPLEMENTARY INFORMATION:
Background
Section 4(
(3)(A) of the Endangered Species Act (Act) [16 U.S.C. 1531 et seq.] requires that we make a finding on whether a petition to
list, delist, or reclassify a species presents substantial information
to indicate the petitioned action may be warranted. To the maximum
extent practicable, we must make the finding within 90 days of
receiving the petition, and must promptly publish the finding in the
Federal Register. If we find substantial information exists to support
the petitioned action, we are required to promptly commence a status
review of the species (50 CFR 424.14). ``Substantial information'' is
defined in 50 CFR 424.14(
as ``that amount of information that would lead a reasonable person to believe that the measure proposed in the
petition may be warranted.'' Petitioners need not prove that the
petitioned action is warranted to support a ``substantial'' finding;
instead, the key consideration in evaluating a petition for
substantiality involves demonstration of the reliability and adequacy
of the information supporting the action advocated by the petition.
The factors for listing, delisting, or reclassifying a species are
described at 50 CFR 424.11. We may delist a species only if the best
scientific and commercial data available substantiate that it is
neither endangered nor threatened. Delisting may be warranted as a
result of: (1) Extinction; (2) recovery; and/or (3) a determination
that the original data used for classification of the species as
endangered or threatened were in error.
On March 5, 1993, we listed the Pacific Coast population of the
western snowy plover (58 FR 12864). Critical habitat for the species
was designated on December 7, 1999 (64 FR 68508). On June 19, 2003, the
U.S. District Court for the District of Oregon found that our critical
habitat designation was not consistent with the requirements of section
4(
(2) of the Act, and remanded the designation to us; the Court partially vacated the 1999 critical habitat designation.
Biology and Distribution
Snowy plovers are small shorebirds, about 16 centimeters (6 inches)
long, with pale brown upperparts, buff colored bellies, and darker
patches on their shoulders and heads. Their dark gray to black legs are
a useful distinguishing feature when comparing to other plover species
(Page et al. 1995a). Two subspecies of snowy plover nest in North
America: the western snowy plover (WSP) and the Cuban snowy plover.
The nesting range of the first subspecies, the western snowy plover
(Charadrius alexandrinus nivosus), includes sites in Baja California,
California, Oregon, Washington, Nevada, Utah, Arizona, Colorado, New
Mexico, Kansas, Oklahoma, Texas, and central and northeastern Mexico,
as well as irregularly visited sites in Saskatchewan, Wyoming, and
Montana (Page et al. 1995a). In 1993, we determined that the coastal
population of the western snowy plover (Pacific Coast WSP) was a
separate distinct population segment from the interior populations and
defined the Pacific Coast WSP as only those western snowy plovers
``that nest adjacent to or near tidal waters'' of the Pacific Ocean (58
FR 12864).
The second North American subspecies, the Cuban snowy plover
(Charadrius alexandrinus tenuirostris), nests generally east of
Louisiana at various locations along the Gulf of Mexico, including
Florida, the Bahamas, the Yucatan Peninsula, and Puerto Rico. The Cuban
snowy plover is distinguished primarily by paler plumage, and some
accounts consider it to be simply a paler version of the western snowy
plover rather than a separate subspecies (Page et al. 1995a).
With the exception of individuals in the Pacific Coast WSP, and in
southern California, Arizona, New Mexico, and Texas, western snowy
plovers in the United States migrate between winter and summer ranges
(Page et al. 1995a, 1995b). Breeding takes place only at the summer
location. Some Pacific Coast WSP individuals migrate to other Pacific
coast sites for breeding, while others remain resident year round.
Plovers hatched at interior sites west of the Rocky Mountains migrate
to wintering locations on the Pacific coast and in the Gulf of
California, where they may mix with birds from the Pacific Coast WSP
(Page et al. 1995a, 1995b). However, evidence from several banding
studies indicates the two populations separate out again to nest (Gary
Page, et al., Point Reyes Bird Observatory, in litt. 2002.).
The timing of the nesting season varies with location, but in
coastal California it tends to run from March through September (Page
et al. 1995a). Breeding locations tend to be sandy areas close to
water, including beaches, salt pans, and alkaline playas. Clutches,
which most commonly consist of three eggs, are laid in shallow scrapes
or depressions in the sand. Snowy plovers generally form monogamous
pair bonds and share incubation duties, but western snowy plover
females typically desert the brood shortly after hatching, and may
renest with a new male if time remains in the season to do so. Males
typically care for the young until they fledge, which takes about a
month, and may then also renest with a new partner if sufficient time
remains in the season (Stenzel et al. 1994). This results in a serially
polygamous breeding system in which males may double clutch and females
triple clutch during a single season (Page et al. 1995a).
Review of Petition
We received a petition dated July 29, 2002, from the Surf-Ocean
Beach Commission of Lompoc, California, to delist the Pacific Coast WSP
pursuant to the Act. We also received a similar petition dated May 30,
2003, from the City of Morro Bay, California. As explained in our 1996
Petition Management Guidance (Service 1996), subsequent petitions are
treated separately only when they are greater in scope or broaden the
area of review of the first petition. The City of Morro Bay petition
repeats the same information provided in the Surf-Ocean Beach
Commission petition and will therefore be treated as a comment on the
first petition received.
The petition states that the original decision to list the Pacific
Coast WSP was in error on the grounds that it fails to meet any of the
three elements (discreteness, significance, and conservation status) of
our policy regarding the recognition of distinct vertebrate population
segments (DPS policy) (61 FR 4722). The Act defines listable
``species'' to include taxonomic species, subspecies, and ``any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). Because
the Pacific Coast
[[Page 13328]]
WSP is not a taxonomic species or subspecies, it must be a distinct
vertebrate population segment (DPS) in order to qualify for listing.
Although we had not yet published our DPS policy when we listed the
Pacific Coast WSP, the policy states that ``[a]ny DPS of a vertebrate
taxon that was listed prior to implementation of this policy will be
reevaluated on a case-by-case basis as recommendations are made to
change the listing status * * *'' (61 FR 4722 at 4725). The petition's
application of the DPS policy to the Pacific Coast WSP is addressed
below.
To qualify for listing under the DPS policy, a population must
demonstrate both discreteness and significance in relation to the
remainder of the species (61 FR 4722). The petition states that the
Pacific Coast WSP does not meet the discreteness criterion. The
relevant condition for satisfying this criterion requires the
population to be ``markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation'' (61 FR 4725).
The petition cites an unpublished master's thesis that found no
significant genetic differences between the Pacific Coast WSP and other
populations of snowy plover (Gorman 2000). This study was designed to
provide a broad overview of genetic differences in western and Cuban
snowy plovers across the western hemisphere, rather than to
differentiate between the Pacific Coast WSP and its inland neighbor
populations (S. Haig, U.S. Geological Survey, in litt. 2002). For
example, the study only sampled from two highly separated sites within
the coastal population (southern Oregon and southern California), and
two highly separated sites outside the coastal population west of the
Rockies (Abert Lake in eastern Oregon and the Great Salt Lake in Utah).
It also compared segments of mitochondrial DNA that varied little
across the entire range of subjects studied.
In the final listing rule (58 FR 12864), we determined that the
Pacific Coast WSP is isolated based on numerous banding studies and
surveys conducted on coastal and interior birds (Spear 1979; Stenzel
and Peaslee 1979; Henderson and Page 1979; Widrig 1980; Page and
Stenzel 1981; Page et al. 1983; Wilson-Jacobs and Meslow 1984; Warriner
et al. 1986; Herman et al. 1988; Page and Bruce 1989; Stern et al.
1990a, 1990b, 1991a, 1991b; Page et al. 1991). This determination has
been supported by additional banding studies and surveys (Oregon
Department of Fish and Wildlife (ODFW) 1994; Palacios and Alfaro 1994;
Paton 1994; Persons 1994, 1995; Stenzel et al. 1994; Page et al. 1995b;
Gary Page, et al., Point Reyes Bird Observatory, in litt. 2002; Steve
Henry, Service, in litt. 2003). These banding studies and surveys
documented numerous examples of coastal and interior birds changing
breeding sites within their respective populations (e.g., Stenzel, et
al. 1994), but only showed two definite cases of interbreeding across
populations. Both of these were females that hatched or had bred in the
coastal population and had then nested at inland California sites (Page
et al., in litt. 1989; 58 FR 12864; Stenzel et al. 1994).
However, although the banding studies and surveys on which we based
our isolation determination showed only two definite instances of
interbreeding, they also produced several sightings of birds that might
possibly have interbred. For instance: (1) Stenzel et al. (1994)
mentions four coastal females and four males at inland nesting sites;
(2) the Service's draft recovery plan for the species (Service 2001)
mentions three coastal females and one male at interior nesting sites;
and (3) a letter from G. Page, Point Reyes Bird Observatory (PRBO),
(1989) refers to a male ``born on the coast'' and ``found nesting in
the interior.'' According to PRBO notes, this last bird, which was also
mentioned in Stern (1990a), was actually first banded on the coast in
November and so may have hatched inland (L. Stenzel, pers. comm. 2003).
Additionally, while the number of banded birds and survey coverage of
nesting sites has been extensive, we have not closely examined the
extent to which the greatest banding efforts may have coincided with
the most comprehensive survey efforts. We also have not looked closely
at the extent to which bands may have been overlooked or improperly
documented by the surveys.
The Gorman thesis and the information in our files regarding
possible interbreeding raise issues relevant to a DPS determination
that we conclude should be examined more closely in a status review.
During this review, we will reevaluate our DPS determination for this
population in accordance with our DPS policy (61 FR 4722). The petition
also presents information regarding the significance of the Pacific
Coast WSP under the DPS policy, and regarding the extent to which the
population may actually be threatened. We will address that information
more thoroughly in the status review.
Finding
We have reviewed the petition and the supporting documents, as well
as other information in our files. We find that the petition and other
information in our files presents substantial information that
delisting the Pacific Coast WSP may be warranted, and are initiating a
status review. We will issue a 12-month finding in accordance with
section 4(
(3)( of the Act as to whether or not delisting is warranted.
Five-Year Review
Section 4©(2)(A) of the Act requires that we conduct a review of
listed species at least once every five years. We are then, under
section 4©(2)(
, to determine, on the basis of such a review, whether or not any species should be removed from the List (delisted),
or reclassified from endangered to threatened, or threatened to
endangered. Our regulations at 50 CFR 424.21 require that we publish a
notice in the Federal Register announcing those species currently under
active review. This notice announces our active review of the Pacific
Coast WSP.
Public Information Solicited
We are requesting information for both the 12-month finding and the
5-year review, as we are conducting these reviews simultaneously.
When we make a finding that substantial information exists to
indicate that listing or delisting a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting any
additional information, comments, or suggestions on the Pacific Coast
WSP from the public, other concerned governmental agencies, Tribes, the
scientific community, industry or environmental entities, or any other
interested parties. Information sought includes any data regarding
interbreeding with other populations, historical and current
distribution, biology and ecology, ongoing conservation measures for
the species or its habitat, and threats to the species or its habitat.
We also request information regarding the adequacy of existing
regulatory mechanisms.
The 5-year review considers all new information available at the
time of the review. This review will consider the best scientific and
commercial data that has become available since the current listing
determination or most recent status review, such as:
[[Page 13329]]
A. Species biology including, but not limited to, population
trends, distribution, abundance, demographics, and genetics;
B. Habitat conditions including, but not limited to, amount,
distribution, and suitability;
C. Conservation measures that have been implemented that benefit
the species;
D. Threat status and trends;
E. Other new information, data, or corrections including, but not
limited to, taxonomic or nomenclatural changes, identification of
erroneous information contained in the List, and improved analytical
methods.
If you wish to comment for either the 12-month finding or 5-year
review, you may submit your comments and materials to the Field
Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES
section). Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Respondents may request that we withhold a respondent's
identity, as allowable by law. If you wish us to withhold your name or
address, you must state this request prominently at the beginning of
your comment. However, we will not consider anonymous comments. To the
extent consistent with applicable law, we will make all submissions
from organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety. Comments
and materials received will be available for public inspection, by
appointment, during normal business hours at the above address.
References Cited
A complete list of all references cited in this finding is
available, upon request, from the Sacramento Fish and Wildlife Office
(see ADDRESSES section).
Author
The primary author of this document is Glen Tarr (see ADDRESSES
section).
Authority
The authority for this action is section 4 of the Endangered
Species Act of 1973 (16 U.S.C. 131 et seq.).
Dated: February 20, 2004.
Marshall Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-6082 Filed 3-19-04; 8:45 am]
BILLING CODE 4310-55-P
Snowy plovers on Pacific Coast beaches could lose their protected-species status
Jane Kay, Chronicle Environment Writer
Tuesday, March 23, 2004
©2004 San Francisco Chronicle | Feedback | FAQ
URL: sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/03/23/MNG8D5PM9V1.DTL
Federal wildlife officials agreed Monday to reconsider protection granted to the western snowy plover in California, Oregon and Washington as a threatened species under the Endangered Species Act.
The U.S. Fish and Wildlife Service granted petitions filed by the city of Morro Bay and a Santa Barbara County citizens group, the Surf-Ocean Beach Commission, which want to overturn the listing that has closed patches of beaches during plover nesting from March to mid-September.
The petitioners argue that the sparrow-sized plovers don't warrant protection under the act because they're not a small, distinct coastal population but part of a larger population that includes birds that reach from Nevada and Utah to Kansas, Oklahoma and Texas.
The groups filed the petitions in 2002 and 2003, then followed up with a lawsuit in February.
In granting the petitions, Fish and Wildlife scientists said they will review the snowy plover in depth. The agency expects to rule within a year. Now, its best science indicates that the small coastal population is distinct and doesn't mingle with the larger inland plovers.
Gregory Broderick, attorney at the Pacific Legal Foundation who is representing the plaintiffs, said, "It's our contention that if Fish and Wildlife counts all of the birds -- and not some of the birds -- then it will see that the plover is not threatened and it can stop kicking people off the beaches. The government can't just close off the beaches, and turn nature into a museum.''
His clients are beach-goers, off-road enthusiasts, military families and small business owners and the City of Morro Bay, which claims it is suffering from lost tourism and the alteration of July 4 activities.
In recent years, plovers have been the object of rescue attempts along California beaches, including in San Mateo and Sonoma counties, where both federal and state restrictions require fencing off certain nesting areas from unleashed dogs and hikers and prohibiting loud noises.
The birds with dark patches on their heads and shoulders, short dark legs and black bills typically stay on the coast all year. The males scrape indentations in the sand where the females lay two to six eggs. The timid birds will abandon nesting sites if they're frightened away repeatedly, scientists say.
The plover was listed as threatened in 1993, making it illegal to harass or kill the birds. In 1999, the agency designated about 18,000 acres of coastal habitat designated as critical to the recovery of the little bird. The area encompasses patches totaling 200 miles along the West Coast.
In Sacramento, Glen Tarr, a Fish and Wildlife biologist and snowy plover expert, said the agency's goal is to bring the coastal snowy plover population up to 3,000 from its current 1,650. "There have already been successes, and we believe it's a recoverable species.''
At the time of the listing, Fish and Wildlife relied on plover banding studies conducted by the Point Reyes Bird Observatory and the Oregon Department of Fish and Wildlife, which failed to find evidence of mixing coastal and inland plovers.
Now, the petitioners cite a master's thesis by Leah Gorman at Oregon State University in 2000, which says genetic tests show the populations are the same.
But Tarr said Gorman's research alone isn't sufficient to resolve whether there are genetic differences. And even if no genetic differences exist, the populations could still be isolated and distinct.
"After isolation, it would still take considerable time for the populations to develop unique genetic differences. So, therefore, it is necessary to consider other types of evidence,'' such as migration and habitat patterns, "when making a determination on the population's distinctness,'' Tarr said.
A month ago, the California Department of Parks and Recreation released a study showing there was a 24 percent increase in the number of nests from the year before along the coast because of protection efforts.
"We have a very aggressive management program in place,'' said state parks spokesman Joe Rosato. "It will be business as usual here as far as protecting the snowy plover.''
--------------------------------------------------------------------------------
Jane Kay, Chronicle Environment Writer
Tuesday, March 23, 2004
©2004 San Francisco Chronicle | Feedback | FAQ
URL: sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/03/23/MNG8D5PM9V1.DTL
Federal wildlife officials agreed Monday to reconsider protection granted to the western snowy plover in California, Oregon and Washington as a threatened species under the Endangered Species Act.
The U.S. Fish and Wildlife Service granted petitions filed by the city of Morro Bay and a Santa Barbara County citizens group, the Surf-Ocean Beach Commission, which want to overturn the listing that has closed patches of beaches during plover nesting from March to mid-September.
The petitioners argue that the sparrow-sized plovers don't warrant protection under the act because they're not a small, distinct coastal population but part of a larger population that includes birds that reach from Nevada and Utah to Kansas, Oklahoma and Texas.
The groups filed the petitions in 2002 and 2003, then followed up with a lawsuit in February.
In granting the petitions, Fish and Wildlife scientists said they will review the snowy plover in depth. The agency expects to rule within a year. Now, its best science indicates that the small coastal population is distinct and doesn't mingle with the larger inland plovers.
Gregory Broderick, attorney at the Pacific Legal Foundation who is representing the plaintiffs, said, "It's our contention that if Fish and Wildlife counts all of the birds -- and not some of the birds -- then it will see that the plover is not threatened and it can stop kicking people off the beaches. The government can't just close off the beaches, and turn nature into a museum.''
His clients are beach-goers, off-road enthusiasts, military families and small business owners and the City of Morro Bay, which claims it is suffering from lost tourism and the alteration of July 4 activities.
In recent years, plovers have been the object of rescue attempts along California beaches, including in San Mateo and Sonoma counties, where both federal and state restrictions require fencing off certain nesting areas from unleashed dogs and hikers and prohibiting loud noises.
The birds with dark patches on their heads and shoulders, short dark legs and black bills typically stay on the coast all year. The males scrape indentations in the sand where the females lay two to six eggs. The timid birds will abandon nesting sites if they're frightened away repeatedly, scientists say.
The plover was listed as threatened in 1993, making it illegal to harass or kill the birds. In 1999, the agency designated about 18,000 acres of coastal habitat designated as critical to the recovery of the little bird. The area encompasses patches totaling 200 miles along the West Coast.
In Sacramento, Glen Tarr, a Fish and Wildlife biologist and snowy plover expert, said the agency's goal is to bring the coastal snowy plover population up to 3,000 from its current 1,650. "There have already been successes, and we believe it's a recoverable species.''
At the time of the listing, Fish and Wildlife relied on plover banding studies conducted by the Point Reyes Bird Observatory and the Oregon Department of Fish and Wildlife, which failed to find evidence of mixing coastal and inland plovers.
Now, the petitioners cite a master's thesis by Leah Gorman at Oregon State University in 2000, which says genetic tests show the populations are the same.
But Tarr said Gorman's research alone isn't sufficient to resolve whether there are genetic differences. And even if no genetic differences exist, the populations could still be isolated and distinct.
"After isolation, it would still take considerable time for the populations to develop unique genetic differences. So, therefore, it is necessary to consider other types of evidence,'' such as migration and habitat patterns, "when making a determination on the population's distinctness,'' Tarr said.
A month ago, the California Department of Parks and Recreation released a study showing there was a 24 percent increase in the number of nests from the year before along the coast because of protection efforts.
"We have a very aggressive management program in place,'' said state parks spokesman Joe Rosato. "It will be business as usual here as far as protecting the snowy plover.''
--------------------------------------------------------------------------------
This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.