[BCNnet] FW: [BIRDWG05] AZ-NM: Federal ruling to regain protection of Mex. Spotted Owl habitat

[Donald R. Dann]

This was from Arizona's "IBET" and thought it refreshing as compared to some
recent bird conservation news.

Donald R. Dann
Highland Park/Lake County

-----Original Message-----
From: NBHC AZ/NM Birds [mailto:BIRDWG05@listserv.arizona.edu]On Behalf Of
Norma Miller
Sent: Wednesday, January 15, 2003 10:44 PM
To: BIRDWG05@listserv.arizona.edu
Subject: [BIRDWG05] AZ-NM: Federal ruling to regain protection of Mex.
Spotted Owl habitat

Just received this news from the Center for Biological Diversity in Tucson.
Sometimes
citizen action and legal support works.
Norma Miller
n8urnut@earthlink.net
Tucson

************************************************************

No. 328, January 15, 2003

JUDGE BLASTS FEDS FOR REFUSING TO PROTECT 8.9 MILLION ACRES OF FOREST AND
HIDING CRITICAL
INFORMATION FROM PUBLIC REVIEW

Ruling may lead to expansion of protected areas across nation: Bush
administration has
excluded over 35.9 million acres from protection

On January 13, 2003, Tucson Federal Judge David C. Bury issued a blistering
31 page ruling
denouncing the U.S. Fish and Wildlife Service for excluding 8.9 million
acres of forest in
Arizona and New Mexico from the protected "critical habitat" area of the
Mexican spotted
owl.

Bury also ruled that the Fish and Wildlife Service illegally withheld
critical information
from the public and peer reviewers, and refused to consider protecting
essential, but
currently unoccupied, owl habitat.

Bury ordered the Fish and Wildlife Service to issue a new critical habitat
proposal in
three months and finalize it within six months. The order came in response
to a 2001
lawsuit by the Center for Biological Diversity, Navajo environmental group
Dine CARE, and
the Center for Native Ecosystems. The case was argued by Matt Kenna (Kenna &
Hickcox,
Durango) and Neil Levine (Earthjustice, Denver).

The Endangered Species Act requires the designation and protection of
specific critical
habitat zones for all threatened and endangered species. The zone must
include "all areas
essential to the conservation" of the species, and be managed to ensure the
species fully
recovers from endangerment. It is impermissible to "adversely modify"
critical habitat
areas. Critical habitat designation is opposed by industry groups because is
establishes
clear definitions of what areas must be protected and what standard of
protection must be
implemented. They prefer the more generic aspects of the Endangered Species
Act that rely
heavily on agency discretion and thus are more susceptible to political
pressure and less
susceptible to citizen review and legal challenge. Significant reform of
grazing, mining,
development, and road construction policies in New Mexico, Arizona, and
California have
shown critical habitat to be a powerful habitat protection and policy reform
tool.

The Clinton Administration issued a proposal to designate 13.5 million acres
of critical
habitat in AZ, NM, UT, and CO for the threatened Mexican spotted owl on July
21, 2000.
Overriding the recommendation of U.S. Fish and Wildlife Service biologists,
the Bush
Administration issued a final designation on February 1, 2001 deleting 8.9
million acres,
including all eleven national forests in Arizona and New Mexico. The vast
majority of
owls, owl habitat, and logging occur on the excluded forests. The final
critical habitat,
instead focused on National Park Service and Bureau of Land Management lands
where no
logging, and thus, no controversy, occurs. Judge Bury rightfully called this
designation
strategy "nonsensical."

Bury rejected the Bush administration's claim that the Arizona and New
Mexico national
forests should be excluded because they are being adequately managed under
the federal
Mexican Spotted Owl Recovery Plan. Bury noted that the U.S. Forest Service
had agreed to
implement only part of the plan, that it had repeatedly violated even the
part that it
agreed to, and that, in principle, a management plan is not a substitute for
critical
habitat. According to Bury:

"Forest Service's Forest Plans are not adequate and are, in fact legally
insufficient . .
. the Forest Service's delay and extreme reluctance in complying with not
only the ESA but
numerous court orders, as well, raises serious doubts about the Forest
Service's
commitment to protecting the Mexican spotted owl and its habitat. Indeed,
the Forest
Service made affirmative efforts to block the listing of the owl as a
threatened species.
Therefore, the adequacy of the Forest Service's protection of the Forest
Service's
protection of the owl is inherently suspect." p. 21.

"Defendant [i.e. Secretary of Interior] knew or should have known that their
decision not
to designate critical habitat in Arizona or New Mexico on the basis that it
would provide
'additional' protection was unlawful. Indeed Defendant and FWS have been
told by no fewer
than three federal courts, including the Ninth Circuit, that its position is
untenable and
in contravention to the ESA. Nevertheless, with apparent disregard of the
courts,
Defendant decided not to designated critical habitat . . . on the basis that
'adequate'
plans were already in place and 'additional' protection was unnecessary.
This argument has
already failed three times. It fails yet again here." p. 20.

Citing the paramount importance of habitat loss to the great majority of
endangered
species, Bury declared that "Formal designation of critical habitat is a key
protection to
endangered and threatened species." He noted that the Center for Biological
Diversity had
fought a "valiant and persistent" battle for over a decade to protect the
owl and its
habitat.

The Mexican spotted owl was the first of many critical habitat proposals
slashed by the
Bush administration. The Bush administration has designated 32 critical
habitats, all
under court order. It has not once responded to peer reviewers and public
comment by
increasing the amount of protected area between a proposed and final rule.
In 77% of the
cases, it decreased the size of the protected area, on average by 50%. In
all, the Bush
administration deleted over 35.9 million acres of proposed protected
critical habitat
areas. In many of these cases, it used the same rational which was struck
down by Judge
Bury.

Center for Biological Diversity | PO Box 710 Tucson, AZ 85702 | 520-623-5252
|
center@biologicaldiversity.org