Posted on 08/11/2002 10:58:15 AM PDT by CedarDave
Sunday, August 11, 2002
N.M. Suit Sets Off Habitat Backlash
By Tania Soussan Journal Staff Writer
A successful New Mexico court case challenging habitat protections for a small, endangered bird has sparked a wave of similar lawsuits by ranchers, farmers and developers.
It all represents a turn of events in endangered species litigation.
Environmental groups, including the Center for Biological Diversity in Tucson, had racked up a series of legal victories in recent years. Their lawsuits forced the U.S. Fish and Wildlife Service to designate "critical habitat" more quickly — protecting the area essential to an endangered species survival — and to add more animals and plants to the endangered list.
Now, farmers and ranchers are using the same tactics to protect themselves. Lawsuits have recently been filed in New Mexico and California.
The legal landscape started to shift in 1998 when the New Mexico Cattle Growers Association, the New Mexico Farm and Livestock Bureau and a handful of other industry groups sued the U.S. Fish and Wildlife Service over a critical habitat designation for the southwestern willow flycatcher.
The industry groups said the federal government had not properly considered economic impacts of the habitat protections, which are required by the Endangered Species Act. Within critical habitat, harmful changes to a creature's territory are barred when water from federal irrigation projects, federal money or other federal actions are involved.
Last May, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver agreed with the New Mexico farmers, ranchers and other industry groups in the flycatcher case, handing them what has turned out to be a significant victory.
"The case emboldened a lot of interests to challenge critical habitat all over the country for a vast number of species," said Patti Goldman, managing attorney for Earthjustice in Seattle.
The ruling has also changed the way the federal government decides what land to protect for threatened and endangered plants and animals.
"The recent decisions have forced us to recognize that the economic analysis we had been using needed to be changed," said Fish and Wildlife Service spokesman Chris Tollefson in Washington, D.C.
The agency has voluntarily agreed in several cases to redo the economic analysis rather than fight in court.
Industry groups say critical habitat designation can cause economic havoc.
In the flycatcher case, for instance, ranchers argued that their livelihoods could be threatened if protections for the bird forced them to fence cattle out of riparian areas and build new stock ponds, or to remove livestock from federal grazing allotments.
Confronting protections
The New Mexico cattle ranchers are using the same argument that worked in the flycatcher case to challenge habitat protections for three fish species in the West.
In California, a federal judge cited the willow flycatcher case earlier this year when he told the federal government he favored new economic analyses of critical habitat for the California gnatcatcher, a tiny coastal bird, and the San Diego fairy shrimp.
After real estate developers in the Pacific Northwest filed suit, the Fish and Wildlife Service voluntarily agreed in April to set aside critical habitat for several species of salmon and steelhead while it redoes economic studies.
Karen Budd-Falen, a Cheyenne, Wyo., attorney who handled the flycatcher case for the New Mexico ranchers, is preparing to file a new lawsuit in Nebraska this week, challenging critical habitat for the piping plover on behalf of a coalition of Nebraska farm groups.
"It certainly has created a storm of cases where people challenge critical habitat based on the failure of the Fish and Wildlife Service to follow their regulations," she said. "This is absolutely a national issue, not just a West phenomenon."
Craig Douglas, an Austin attorney who is handling the current New Mexico case over habitat for the Arkansas River shiner in the northeastern part of the state, agreed.
"It was enormously significant," he said. "The 10th Circuit confirmed what many of our clients had always believed."
Fighting for protections
Environmentalists are worried.
"It's definitely an alarming trend," said Peter Galvin, a conservation biologist and co-founder of the Tucson-based Center for Biological Diversity. "We're very concerned that what industry is doing here is attempting to basically turn back the clock on wildlife protections."
The center, which has successfully litigated to force critical habitat designations for many endangered species in the past, has "deployed a huge amount of resources" to intervene in the industry cases and hire its own economists, Galvin said.
Environmentalists want to make sure habitat protections remain in place while new economic impact studies are done.
Some environmental groups agree that the government's economic impact studies are inadequate. They say the studies should consider positive impacts of critical habitat designation, such as flood control, improved water quality and open space preservation, Galvin said.
Goldman of Earthjustice said she expects critical habitat challenges to make it to appeals courts in other circuits. Those courts are not bound by the flycatcher ruling and could come to a different conclusion.
Suits on fish habitats
The victory in the willow flycatcher case has allowed the New Mexico Cattle Growers Association to file two new suits, said executive secretary Caren Cowan.
"It's disappointing the agency didn't just take the 10th Circuit case and go back and rethink their process," Cowan said. "We hope that the government will settle 'em and we won't have to litigate 'em all the way through."
The first case, filed jointly with the Coalition of Arizona/New Mexico Counties for Stable Economic Growth, challenges critical habitat for the spikedace and loach minnow.
The federal government designated almost 900 miles of the Gila and San Francisco rivers and their tributaries in New Mexico and Arizona as critical habitat for the two fish.
"We have a lot of members along the Gila that have been impacted or are being impacted as we speak," Cowan said.
One rancher has been told to fence his cattle out of a stream or keep them out of a pasture entirely, she said.
In the spikedace and loach minnow case, the Fish and Wildlife Service wants two years to redo the economic analysis, a proposal that sits well with the ranchers as long as the existing habitat protections are tossed out in the meantime, said attorney Budd-Falen.
The Center for Biological Diversity, which has intervened in the case, does not want the critical habitat to lapse for that long.
The second New Mexico case also includes plaintiffs from Texas, Oklahoma and Kansas. It challenges critical habitat for the Arkansas River shiner.
"We're not litigious people by nature, but, five years ago, it became clear that was the arena where decisions were being made," Cowan said.Copyright 2002 Albuquerque Journal
Yea!!!
So if the FWS found any species that needed special attention, they were out of luck! All new endangered spending had to now wait until the following year when funds would be available again.
Endangered Species Funding is now court driven!
"We're very concerned that what industry is doing here is attempting to basically turn back the clock on wildlife protections."
You would think that after decades of using the phrase 'turn back the clock' that they would get a little more creative. No thought there. Or that the press would get bored with it and ask for specifics. Doubt it, probably just doing the Hillary head-bob.
Also 'basically,' entirely overused catchphrase.
Pink Floyd might ask 'is there any thought out there.'
Don't lawyers love those little critters, especialy if they are few and can create a Reichtag martyrdom mania for enviro wackos.
For a prime example of how much these Enviral Jihadists hate humans and love and prefer plants go to this thread. The largest fire in a century in Oregon has threatened two counties and still is a threat.
Read about an incredible World Class Clymer who didn't want fire lanes, put into his Lillies, kept them out. (Fires Spread Plant Damage, Disease, Ore-gone Eco Terrorists's View of Fire Fighting 08/10/2002)
Now basically the entire wilderness area has burnt up and is still threatening these two Oregon counties and about 30,000 people.
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