CENTER FOR BIOLOGICAL DIVERSITY
EARTHJUSTICE
SIERRA CLUB
DESERT SURVIVORS
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY
NEWS RELEASE: for immediate release Wednesday, August 4, 2004
Court finds Bush administration desert species permits illegal
Landmark decision finds U.S. Fish & Wildlife Service used illegal definition of 'adverse modification' to critical habitat. Biological opinion struck down for BLM's California Desert Conservation Area management. Harmful off-roading and livestock grazing across 10M acres of Mojave, Sonoran and Great Basin deserts will be affected.
Contact: Brendan Cummings, Attorney, Center 909.768.8301
Michael Lozeau, Attorney, Earthjustice 650.725.4217
Daniel R. Patterson, Ecologist, Center 520.906.2159
SAN FRANCISCO -- In a major victory for desert tortoise and other endangered species recovery in the California desert, federal judge Susan Illston yesterday struck down biological opinions (permits) issued by the Bush administration's Fish & Wildlife Service (FWS) that authorized extensive cattle grazing and off-road vehicle use within the 4.1 million acres of critical desert tortoise habitat located in the California Desert Conservation Area. FWS had issued its faulty opinion in response to management plans issued by the Bureau of Land Management (BLM) for the Virginia-sized Conservation Area. The BLM plans have been highly controversial and have been sharply criticized by biologists over their failure to protect endangered species' critical habitat and implement recovery plans already approved by FWS.
The Court found it illegal that the Bush FWS failed to consider the negative affects of the BLM plans on endangered species' recovery, instead looking only at survival. Recovery means increasing the size of key desert tortoise populations to the point that the species can eventually be removed from the endangered and threatened species list. In contrast, survival does not necessarily include any improvement to the health of an endangered species.
"[T]he Court finds that congressional intent in enacting the ESA was clear: critical habitat exists to promote the recovery and survival of listed species...," wrote Judge Illston in her 16 page opinion and order. "Conservation means more than survival; it means recovery. The Court finds that formulating a biological opinion of "no adverse modification" "only where an action affects the value of critical habitat to both the recovery and survival of a species imposes a higher threshold than the statutory language permits." She adds, "...the biological opinion itself suggests, and the administrative record confirms, that had the Service considered the impact of the CDCA Plan on recovery alone, it might have made a different finding regarding adverse modification."
"Since the passage of the Endangered Species Act, FWS and other agencies like BLM have been actively avoiding complying with Congress' command that they take all necessary actions to recover endangered and threatened species," said Earthjustice attorney Michael Lozeau. "The federal court's ruling restores Congress' intent that critical habitat, including the desert tortoise critical habitat located in the CDCA, be managed to restore tortoises, not to subsidize grazing cows in the desert or serve as off-road vehicle highways."
"This is a very important ruling which upholds the recovery intent of the Endangered Species Act, America's most important wildlife conservation law," said Daniel R. Patterson, ecologist with the Center, who formerly worked with BLM in the CDCA. "Critical habitat works, and now FWS and BLM will have to follow the law and the public-interest in protecting critical habitat for endangered species recovery, not just survival."
"The Court's decision is a critical step in stopping habitat degradation and the killing and crushing of tortoises and their dens by cattle and off-road vehicles," explained Center attorney Brendan Cummings. "It's unfortunate it took a federal lawsuit to force FWS and BLM to read the statute and implement FWS' own recovery plan for the tortoise."
"This decision is not only an affirmation of Congressional intent for species recovery under ESA; it is a poster-child for the value ofan independent judiciary," said Karen Schambach, California Director of Public Employees for Environmental Responsibility.
By invalidating the biological opinion issued for the CDCA management plans, the remaining question in the lawsuit is what activities within desert tortoise critical habitat must be stopped or drastically curtailed.
"In order for the desert tortoise to recover from the brink of extinction, the recovery plan for the tortoise prepared by FWS must be fully implemented immediately, including its call for the complete elimination of livestock grazing and drastic reduction of off-road vehicle use on essential tortoise habitat," said ecologist Patterson.
"Recovering the desert tortoise will take a maximum effort," said Elden Hughes of the Sierra Club. "Unfortunately, the Bush Administration seems determined to do something less than minimum, but this important ruling will force them to change and follow the law."
The Bush administration's critical habitat policy is a self-fulfilling prophecy: refuse to protect critical habitat, then claim critical habitat is not protective. In striking down this illegal and illogical policy, the Court has ordered FWS to protect critical habitat at the highest level possible to ensure that it is managed to recover endangered species, not simply keep them alive.
For a copy of the court order, contact Daniel Patterson.
Full Version: Critical Habitat News For Ca
My head hurts. 
Holy Toledo, it's nearly impossible to read past all the chest pounding and political jabs! Makes me a little dizzy.
I seriously doubt what we're seeing here is very close to reality but I'll see if I can't pull the order this piece of fluff is referring to.
Vicki
I seriously doubt what we're seeing here is very close to reality but I'll see if I can't pull the order this piece of fluff is referring to.
Vicki
Here's a different memo on the same issue... with a little less rhetoric. And from one of the biggest zealots in the anti-access biz no less! Go figure.
| QUOTE |
| From: Kieran Suckling [mailto:ksuckling@biologicaldiversity.org] Sent: Tuesday, August 03, 2004 9:05 PM To: ESA Working Group Subject: [esa] Good critical habitat decision A judge in the 9th Circuit just ruled that the DOI's policy reducing ritical habitat protection to avoidance of jeopardy is illegal. The court agreed that critical habitat protection (i.e. the "adverse modification" standard) should be measured by the recovery needs of the species, not just preventing extinction. This is much higher standard of protection and directly undercuts the Bush administration's (and the Clinton administration before it) insistence that critical habitat does not provide a benefit above the already existing requirement to avoid jeopardy. While previous courts have reached similar conclusions when abstractly considering the definition of critical habitat in reference to designation decisions, this ruling concerned the on-the-ground management of the 6.4 million acres of desert tortoise critical habitat. The court ruled against the BLM and the USFWS's decision to ignore the recommendations of the desert tortoise recovery plan within designated critical habitat. In particular, the court found that continuation of cattle grazing in violation of the recovery plan was illegally allowed within critical habitat zones. Note that court did not ban the agencies from ignoring the recovery plan outside of critical habitat area. Since critical habitat is the only part of the ESA which clearly requires agencies to actually recover species, the presence or absence of critical habitat has repeatedly proven to be the defining factor in whether agencies will implement recovery plans and other recovery-oriented programs. The ruling is consistent with many examples of federal, state and private landowners/regulators who respond to critical habitat designations by creating a higher level of protection within them in order to help recover endangered species. |
if I read it right... you take 2 cups of flower, 1 cup sugar, 1 tbsp. vanilla extract....
We can be sure that this will be used as their basis for their inevitable lawsuit against the FWS regarding the PMV critical habitat designation. Unfortunately, this does set a precedent for them.
Vicki
Vicki
| QUOTE (HozayKwarvo @ Aug 4 2004, 04:37 PM) |
| if I read it right... you take 2 cups of flower, 1 cup sugar, 1 tbsp. vanilla extract.... |
hehehehe
It looks to me like the end result of this is that where the FWS has always used one standard when designating critical habitat, they will no longer be allowed to use that standard.
The way I read this is, the San Francisco court determine it is no longer good enough for the FWS to designate critical habitat that will keep the species from declining... this judge wants the the FWS to designate critical habitat that will actually recover the species.
Vicki
was this a state court ruling on a federal case dealing with federal land?? is that normal?
<--dumb about that stuff
<--dumb about that stuff
| QUOTE (SailAway @ Aug 4 2004, 05:59 PM) | ||
hehehehe It looks to me like the end result of this is that where the FWS has always used one standard when designating critical habitat, they will no longer be allowed to use that standard. The way I read this is, the San Francisco court determine it is no longer good enough for the FWS to designate critical habitat that will keep the species from declining... this judge wants the the FWS to designate critical habitat that will actually recover the species. Vicki |
That's how I read it too. It's downright scary. It makes me invision more closure stakes, more fences, more anti-access signs.
| QUOTE (KingGlamis @ Aug 4 2004, 08:59 PM) | ||||
That's how I read it too. It's downright scary. It makes me invision more closure stakes, more fences, more anti-access signs. |
is it that KG? or is it that the current acreage is sufficient, just that the restrictions inposed on the currently closed areas aren't tight enough... i.e; the "closed" areas are currently opened to hikers, horses, etc... will they now become closed to everything?
I can only hope that this doesn't end up losing us more space
| QUOTE (HozayKwarvo @ Aug 4 2004, 08:43 PM) |
| was this a state court ruling on a federal case dealing with federal land?? is that normal? <--dumb about that stuff |
Federal issues are addressed in the District Courts, and unfortunately the closure organizations use them to their advantage by bringing the issues to a courthouse full of judges who have no idea what public land access is all about. Oh sure, they could bring their lawsuits to southern California, like maybe San Diego, but they have a better chance at winning with a clueless court staff so they head for San Francisco.
You're not dumb about this stuff... no one really wants to know how this stuff works but sometimes it's what we don't know that can hurt us, so we keep learning.
Vicki
| QUOTE (HozayKwarvo @ Aug 4 2004, 09:09 PM) |
| I can only hope that this doesn't end up losing us more space |
The bad guys wouldn't be fighting for it if they didn't think it would at least help restrict access
On the surface, it really only means the FWS is more restricted and these unnecessary and non-beneficial critical habitat designations will take even longer.
It's job security for the closure organizations, who make a dandy living on filing these lawsuits.
Vicki
Judge Susan Illston is a Federal Judge in the 9th District which covers all western states (AK, HI, CA, OR, NV, AZ, WA, ID, MT).
Federal Judge Sides With Desert Tortoise
By Susan Jones
CNSNews.com Morning Editor
August 05, 2004
(CNSNews.com) - Environmental activists call it a major victory for the desert tortoise: A federal judge in San Francisco is refusing to allow cattle grazing and off-road vehicle use on 4-million acres of California desert, which is set aside as "critical habitat" for the desert tortoise.
Judge Susan Illston this week struck down opinions issued by the U.S. Fish and Wildlife Service, which would have allowed cattle and people to share land set aside for the tortoise in the massive California Desert Conservation Area.
The conservation area is about 25 million acres, of which 4.1 million acres -- an area larger than the state of Connecticut -- is designated as critical habitat for the tortoise.
It is not enough to consider the survival of the desert tortoise, the judge said in her ruling. She said the Fish and Wildlife Service must also consider "recovery" of the species -- boosting the population, in other words, to the point where it can be removed from the endangered species list.
'Desert abuses'
According to the Center for Biological Diversity, the desert tortoise spends most of its time under ground. Even so, environmental activists say the burrowing tortoise is threatened by cattle and people.
According to its website, "The desert tortoise has been at the epicenter of the Center Biological Diversity's campaign to save the CDCA (California Desert Conservation Area) from livestock grazing, road proliferation, mining, inappropriate off-road vehicle use and other desert abuses."
The Center also says various lawsuits filed against federal agencies have "resulted in the closure of the largest mine within the National Park system, the banning and limitation of livestock on millions of acres of tortoise habitat, and the closure of 4,500 miles of roads."
A number of environmental activists praised Judge Illston's ruling in a press release issued Wednesday:
"The federal court's ruling restores Congress' intent that critical habitat, including the desert tortoise critical habitat located in the California Desert Conservation Area, be managed to restore tortoises, not to subsidize grazing cows in the desert or serve as off-road vehicle highways," said Earthjustice attorney Michael Lozeau.
He also blasted federal agencies that would have allowed cattle and people to mingle with tortoises: "Since the passage of the Endangered Species Act, FWS (U.S. Fish and Wildlife Service) and other agencies like BLM (Bureau of Land Management) have been actively avoiding complying with Congress' command that they take all necessary actions to recover endangered and threatened species," Lozeau said.
Brendan Cummings, an attorney with the Center for Biological Diversity, called Judge Illston's Tuesday ruling a "critical step in stopping habitat degradation and the killing and crushing of tortoises and their dens by cattle and off-road vehicles."
Cummings called it "unfortunate" that it took a federal lawsuit to force FWS and BLM to "read the statute and implement FWS' own recovery plan for the tortoise."
But critics say lawsuits are frequently used by environmental activists to advance their exclusionary agenda -- at a cost to taxpayers.
One environmental activist -- Karen Schambach, director of Public Employees for Environmental Responsibility -- praised Judge Illston's decision as the "poster child for the value of an independent judiciary."
Elden Hughes of the Sierra Club commented that, "Recovering the desert tortoise will take a maximum effort" and he criticized the Bush administration for trying to do "something less than the minimum."
Ravens
Cattle and humans aren't the only threat to the desert tortoise. An August 1 article in the San Jose Mercury News said the U.S. Fish and Wildlife Service is considering plans to kill ravens that prey on the desert tortoise.
Ravens are considered a major threat to restoring tortoise populations, but as the article notes, previous plans to shoot or poison ravens have drawn the wrath of some "animal rights" groups.
http://www.cnsnews.com/ViewNation.asp?Page...T20040805b.html
By Susan Jones
CNSNews.com Morning Editor
August 05, 2004
(CNSNews.com) - Environmental activists call it a major victory for the desert tortoise: A federal judge in San Francisco is refusing to allow cattle grazing and off-road vehicle use on 4-million acres of California desert, which is set aside as "critical habitat" for the desert tortoise.
Judge Susan Illston this week struck down opinions issued by the U.S. Fish and Wildlife Service, which would have allowed cattle and people to share land set aside for the tortoise in the massive California Desert Conservation Area.
The conservation area is about 25 million acres, of which 4.1 million acres -- an area larger than the state of Connecticut -- is designated as critical habitat for the tortoise.
It is not enough to consider the survival of the desert tortoise, the judge said in her ruling. She said the Fish and Wildlife Service must also consider "recovery" of the species -- boosting the population, in other words, to the point where it can be removed from the endangered species list.
'Desert abuses'
According to the Center for Biological Diversity, the desert tortoise spends most of its time under ground. Even so, environmental activists say the burrowing tortoise is threatened by cattle and people.
According to its website, "The desert tortoise has been at the epicenter of the Center Biological Diversity's campaign to save the CDCA (California Desert Conservation Area) from livestock grazing, road proliferation, mining, inappropriate off-road vehicle use and other desert abuses."
The Center also says various lawsuits filed against federal agencies have "resulted in the closure of the largest mine within the National Park system, the banning and limitation of livestock on millions of acres of tortoise habitat, and the closure of 4,500 miles of roads."
A number of environmental activists praised Judge Illston's ruling in a press release issued Wednesday:
"The federal court's ruling restores Congress' intent that critical habitat, including the desert tortoise critical habitat located in the California Desert Conservation Area, be managed to restore tortoises, not to subsidize grazing cows in the desert or serve as off-road vehicle highways," said Earthjustice attorney Michael Lozeau.
He also blasted federal agencies that would have allowed cattle and people to mingle with tortoises: "Since the passage of the Endangered Species Act, FWS (U.S. Fish and Wildlife Service) and other agencies like BLM (Bureau of Land Management) have been actively avoiding complying with Congress' command that they take all necessary actions to recover endangered and threatened species," Lozeau said.
Brendan Cummings, an attorney with the Center for Biological Diversity, called Judge Illston's Tuesday ruling a "critical step in stopping habitat degradation and the killing and crushing of tortoises and their dens by cattle and off-road vehicles."
Cummings called it "unfortunate" that it took a federal lawsuit to force FWS and BLM to "read the statute and implement FWS' own recovery plan for the tortoise."
But critics say lawsuits are frequently used by environmental activists to advance their exclusionary agenda -- at a cost to taxpayers.
One environmental activist -- Karen Schambach, director of Public Employees for Environmental Responsibility -- praised Judge Illston's decision as the "poster child for the value of an independent judiciary."
Elden Hughes of the Sierra Club commented that, "Recovering the desert tortoise will take a maximum effort" and he criticized the Bush administration for trying to do "something less than the minimum."
Ravens
Cattle and humans aren't the only threat to the desert tortoise. An August 1 article in the San Jose Mercury News said the U.S. Fish and Wildlife Service is considering plans to kill ravens that prey on the desert tortoise.
Ravens are considered a major threat to restoring tortoise populations, but as the article notes, previous plans to shoot or poison ravens have drawn the wrath of some "animal rights" groups.
http://www.cnsnews.com/ViewNation.asp?Page...T20040805b.html
I'm glad to see the AMA is fighting this decision...
| QUOTE |
| http://www.sbsun.com/Stories/0,1413,208~12588~2317301,00.html Tortoise decision blasted By CHUCK MUELLER, Staff Writer A federal court decision that rejects a plan to protect the desert tortoise as inadequate is being denounced by off-road vehicle enthusiasts but applauded by environmentalists. U.S. District Judge Susan Illston in San Francisco has turned down a motion by the American Motorcycle Association's District 37 that challenges the closing of millions of acres of tortoise habitat in the California desert to off-road vehicles. "We absolutely disagree with the decision, feeling that the judge missed the point,' said Michelle Cassella, association vice president. "She focused on the impact of off-road vehicles on the decline of the tortoise instead of looking at respiratory diseases that are killing them. The cyclists will appeal the ruling to the 9th U.S. Circuit Court of Appeals, Cassella said. Environmentalists call Tuesday's decision a major victory for the slow-moving tortoise, California's state reptile. "This is an important ruling, which upholds the recovery intent within the Endangered Species Act, America's most important wildlife conservation law,' said Daniel Patterson, ecologist with the Center for Biological Diversity. "Critical habitat works, and now the Department of the Interior must follow the law and the public interest in protecting critical habitat for endangered species.' Michael Connor, executive director of the Riverside-based Desert Tortoise Preserve Committee, said Illston's ruling makes recovery of the tortoise a significant issue. "This is wonderful news for those of us working to prevent extinction of the tortoise,' he said. The motorcycle association claims that closure of public lands to their members has not helped in the recovery of tortoise populations. The decline of the reptile is due mainly to an upper-respiratory disease and a shell disease, the cyclists argue. The American Motorcycle Association and the Center for Biological Diversity filed the lawsuit against the Interior Department with diverse views. According to the lawsuit, the cyclists argued that a biological opinion by the U.S. Fish and Wildlife Service was unlawful because it inadequately analyzed the role of respiratory disease in the tortoise's decline. On the other hand, the center also argued that the opinion was unlawful because it relied on an invalid regulation. Illston found that the wildlife service did consider disease as one of several factors in the death of tortoises. However, she agreed with the center's view about the regulation used, therefore finding that the biological opinion was "arbitrary and capricious on this ground.' Patterson said a key element in the court decision was the question of survival of the tortoise under a series of desert management plans prepared by the U.S. Bureau of Land Management. "Conservation means more than survival, it means recovery of the species,' he said. "The biological opinion issued for the plan suggests that the Fish and Wildlife Service considered the impact of the plan on recovery alone.' Now, Illston wants the wildlife service to take another look at the Bureau of Land Management's plans in the desert, said wildlife biologist Ray Bransfield. At apparent issue is whether a habitat management plan diminishes its value for the survival or the recovery of an endangered species. The biological opinion, however, was based on current standards that look at both the survival and recovery of these species, Bransfield said. |
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