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Dear Mr. Moshofsky,
The previous ESA Reform Project letter cited several signs of progress
in our collective efforts toward ESA reform. But just when we think we've taken a step forward, we find ourselves - well, not moving backward exactly - but fighting another issue similar to one we thought we won only a few months ago. With new species listings and critical habitat designations, it's troubling to watch federal environmental officials "recast" legal positions they earlier lost in order to advance marginally different positions that property owners may resist only through the filing of new, expensive, and time-consuming litigation. It's especially disturbing that this modus operandi, with which we became so familiar during the 1990s, continues. Reminds me why we initially described our ESA Reform Project as "a long-term campaign - perhaps of a decade or more duration." The following are but a few examples:
1. A rainbow trout that migrates to the ocean (is then called a "steelhead trout") and a rainbow trout that remains in freshwater (thus remaining a "rainbow trout") are both scientifically classified as Oncorhynchus mykiss. One individual trout becomes a steelhead, while its sibling from the same stream may remain a rainbow trout. Steelhead and rainbow trout interbreed. Moreover, steelhead may spawn with other steelhead, and produce offspring that remain in freshwater to become rainbow trout, and vice versa. No genetic difference exists between hatchery-spawned and naturally spawned rainbow trout (or steelhead.)
Despite these scientific facts, the National Marine Fisheries Service listed only "wild" migratory rainbow trout as a threatened species under the Endangered Species Act. 63 Fed. Reg. 13,347 (March 19, 1998). Everyone in the field knows that the ESA does not allow NMFS to make listing distinctions below that of species, subspecies, or distinct population segment of species. In order to comply with the ESA, NMFS must include or exclude all members of a distinct population segment, as opposed to only some members. Thus, once NMFS determined that anadromous and nonanadromous rainbow trout, and hatchery steelhead and "wild" steelhead, were part of the same distinct population segment, the listing decision should have been made accordingly. Instead, NMFS continues to advance the same "politicized science" PLF successfully challenged in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (2001), except there, the fish were coho salmon in Oregon. In Alsea, Judge Hogan accused NMFS of utilizing illegitimate science in distinguishing between hatchery-spawned coho and naturally spawned coho.
As a result of NMFS' illegal species distinctions, and Judge Hogan's decision in Alsea, several irrigation districts have filed a 60-Day Notice of Intent to Sue, to challenge NMFS' illegal listing of the Central Valley rainbow trout. The suit will be Modesto Irrigation District v. NMFS, and will be filed in federal court, Central District of California.
2. Common Sense Salmon Recovery v. NMFS, in which PLF attorney, Russ Brooks, will participate in argument before the D.C. Circuit Court of Appeal on November 25. In March, 1999, NMFS listed only "wild" Puget Sound chinook salmon as threatened. The most fundamental problem with the listing is that NMFS refused to consider hatchery fish when it made the listing decision. Beginning to sound familiar? Since 1950, over two billion fish have been released from hatcheries into the Sound's tributaries, making it virtually impossible to determine what proportion is wild. Yet, even though NMFS' biologists admit that most Puget Sound chinook are descendants of hatchery fish, and that the hatchery and few remaining pure wild chinooks are genetically indistinguishable, they insist on protecting only the "wild" fish. Here again, not only is NMFS not complying with the clear language of the ESA, the issue is nearly indistinguishable from Alsea.
3. Critical habitat must be based on the best scientific and commercial data available, after taking into consideration the economic impact, and any other relevant impact of specifying any particular area as critical habitat. Areas may be excluded from designation when the benefits of exclusion outweigh the benefits of inclusion so long as exclusion won't result in extinction of the species. In February, 2000, NMFS designated critical habitat for 19 "evolutionary significant units" of salmon and steelhead under the ESA. However, rather than conduct the statutorily required economic impact analysis and a study of the designation's environmental effects on land within the critical habitat area, NMFS overdesignated huge sections of California, Idaho, Oregon, and Washington, without legal justification. Negatively impacted were some of the West Coast's most urbanized and developed areas, as well as high-value irrigated agricultural land. In the case of National Association of Home Builders v. Evans, PLF was able to avert major economic injury to property owners by persuading NMFS to voluntarily rescind the illegal designation (case settled, May, 2002.)
4. Yet in October, 2000, the U.S. Fish & Wildlife Service proposed designating 406,708 acres in five San Francisco Bay area counties as critical habitat for the Alameda whipsnake, 61% of which is privately owned and sorely needed for residential development. In making the proposed designation, FWS admitted it did not have adequate survey data to know what land is occupied by the whipsnake, so it included virtually all land within the snake's range, including all "potential" habitat. As to the economic impact analysis, FWS concluded, as it has for all other species, that its critical habitat designation will not economically impact the land beyond what the listing itself has done. In Home Builders Association of Northern California v. U.S. Fish & Wildlife Service, a case very similar to National Association of Home Builders, No. 3 above, PLF filed suit to challenge the designation and the lack of an adequate economic impact analysis. At this time, after significant damage to private property owners caused by delay, there are indications that FWS may withdraw the designation to perform a legitimate economic impact study.
5. Finally, in what appears as a repeat of the two previous-described designations, the FWS has just proposed (September 27) that 1.7 million acres in 36 California counties and one county in Oregon - 75% of which is privately owned - be designated as critical habitat to protect 11 plants and 4 freshwater shrimp species that depend on seasonally flooded pools for survival. These plants and tiny crustaceans are high in the food chain of frogs, birds, salamanders, and other animals. FWS is currently evaluating the economic impact of the proposed designation on the property owners. However, in that the FWS cannot designate critical habitat unless it first determines that the proposed area is "essential for the conservation (meaning "recovery") of the species," PLF attorneys question whether FWS has gathered the survey data necessary to know with specificity where these plant and shrimp species are located, suspecting instead another example of unlawful "overdesignation."
But why are these environmental regulatory agencies continuing to abuse the law, much as they did under the Clinton administration? It raises the question, who is in charge? Unfortunately, as the following account demonstrates, the answer is unsettling. On September 19, Congressman Doug Ose (R-CA), Chair of the House Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs, conducted a hearing in Washington, D.C., in which the sole question was the meaning of the Supreme Court's landmark decision in Solid Waste Agency of North Cook County v. Army Corps of Engineers (SWANCC.) Invited to testify (because PLF had participated in the case), PLF environmental attorney, M. Reed Hopper, offered unequivocal testimony that began:
"The SWANCC decision was a warning about agency irresponsibility. The EPA and the Corps have a responsibility . . . to ensure that they act within the scope of their statutory and constitutional authority. This is a responsibility that the EPA and the Corps not only shirked, but willfully abandoned. It was irresponsible for these executive branch agencies to disregard the plain language of the Clean Water Act, and the intent of Congress, and champion an interpretation that, in the words of the Court, pushed the very 'limit of congressional authority."
Now consider the evasive responses of Assistant Attorney General Tom Sansonetti, head of the Justice Department's Environment and Natural Resource Division (lead attorney on environmental issues), to questions from Congressman John Tierney (D-Mass.) regarding the government's position on the SWANCC opinion's meaning. (The exchange below is an approximation; the official transcript will not be available until mid-December.):
Congressman Tierney: Mr. Sansonetti, has the government taken a stand on
what the SWANCC decision means?
DOJ: No. Not really.
Congressman: Why not?
DOJ: We're working on it.
Congressman: Let me ask the question another way. Are you litigating any cases on the SWANCC decision?
Congressman: Didn't the government take a position on what SWANCC means in the briefs they filed in those cases and doesn't your name appear on those briefs?
Congressman: Well ..what position did you take?
DOJ: Well, Congressman, the briefs in those cases speak for themselves.
Congressman (clearly agitated): NO, THEY DO NOT SPEAK FOR THEMSELVES! YOU MUST SPEAK FOR THEM! WHAT POSITION DID THE GOVERNMENT TAKE ON THE LIMITS OF FEDERAL AUTHORITY UNDER THE SUPREME COURT RULING?
DOJ: I really can't say because each case was different. (end of exchange.)
The truth is, DOJ's briefs in SWANCC-type cases continue to push the very "limits of congressional authority" by claiming jurisdiction over all surface waters with ANY connection to a navigable water, no matter the distance or how tenuous the link. The Army Corps even asserts jurisdiction over isolated drainage swales supplied solely by rainwater during limited periods of the year (Borden Ranch v. Army Corps of Engineers, a California case awaiting hearing by the U.S. Supreme Court in the Winter, 2003).
So it appears our collective long-range efforts to reform the ESA will take us down a number of side roads along the way. The blatant, almost campaign-like overreach by federal environmental regulatory agencies to expand their jurisdiction is one of our most serious roadblocks. But we'll keep on fighting, each in our own way. Eventually we will succeed.