From: Kieran Suckling [ksuckling@biologicaldiversity.org]
Sent: Friday, March 23, 2001 10:44 PM
To: Recipient list suppressed
Subject: BIODIVERSITY ACTIVIST #269
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             CENTER FOR BIOLOGICAL DIVERSITY

           <www.biologicaldiversity.org>      3-23-01      #269
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         CRITICAL HABITAT PROTECTION UPDATE

To justify its illegal Endangered Species moratorium U.S. Fish &
Wildlife Service bureaucrats claim the agency's budget has been
usurped by court orders requiring the designation of critical habitat
areas which are of no conservation value.

The following critical habitat victories won in just the past few weeks
show the bureaucrats are wrong on both the facts and the law.
Activists have spurred the closure of mines, roads, grazing allotments,
and ORV playgrounds on millions of acres of critical habitat creating
an unparalleled opportunity for endangered species recovery. As
one member of the Fish & Wildlife Service Desert Tortoise
Recovery Team wrote to the Center:

  "you guys are really kickin....!; seems like you are achieving
   more legal protection/enforcement in one year than previous
   efforts did in 20! ( and you can quote me)."

Habitat protection is clearly the road to recovery. Without critical
habitat, endangered species will continue to languish in an
emergency room condition subverting the intent of the ESA.

§ MILLIONS OF ACRES OF CRITICAL HABITAT PROTECTED,
   THOUSANDS OF MILES OF ROADS CLOSED IN HISTORIC
   CALIFORNIA DESERT LEGAL SETTLEMENT

§ CATTLE REMOVED FROM 244,000 ACRES OF CRITICAL HABITAT
   INCLUDING THE NEW SANTA ROSA NATIONAL MONUMENT

§ CRITICAL HABITAT PUTS BAY AREA DEVELOPMENT ON HOLD

§ COURT STRIKES DOWN FEDERAL REGULATIONS UNDERMINING
   PROTECTION OF CRITICAL HABITAT AREAS

MILLIONS OF ACRES PROTECTED, THOUSANDS OF MILES OF
ROADS CLOSED IN HISTORIC CALIFORNIA DESERT LEGAL
SETTLEMENT
On 3-20-01, a federal judge approved a legal settlement between the
Center for Biological Diversity, Public Employees for Environmental
Responsibility, the Sierra Club, and the Bureau of Land Management
(BLM) instituting sweeping biodiversity reforms within the California
Desert Conservation Area. The area was established in 1976 but has
continued to be roaded, grazed, mined, and ORVed to death. But on
3-16-00, the Center filed suit to protect 24 endangered species and their
critical habitat areas including the Desert tortoise, Peninsular Ranges
bighorn sheep, Coachella Valley fringe-toed lizard, Arroyo toad, Desert
pupfish, Inyo California towhee, Ash Meadows gumplant, and
Cushenberry buckwheat.

The settlement requires BLM to:

 - prohibit new or expanded mining on 3.4 million acres of Desert tortoise
   critical habitat,
 - immediately close over 4,500 miles of roads and the eventually close,
   thousands more within Desert tortoise critical habitat,
 - fence riparian areas to exclude livestock and burros,
 - close a sand & gravel mine threatening the arroyo southwestern toad,
 - prohibit ORVs on over 550,000 acres of sensitive habitat areas,
 - educate the public about desert conservation,
 - protect Peninsular Ranges desert bighorn sheep habitat and
   populations,
 - raptor proof power lines,
 - use wildlife-safe engine coolant in all BLM vehicles,
 - increase wildlife surveying and population monitoring, and
 - update imperiled species conservation plans

Previous settlements in the case required the removal or reduction of
cattle within 1.9 million acres of Desert tortoise critical habitat, the
banning of ORVs from 49,310 acres of the Algodones Sand Dunes to
protect Peirson's milk-vetch, and the closure of 1,000 acres of Windy
Point to ORVs.

The suit was argued by Brendan Cummings (Berkeley) and Jay
Tuchton of Earthjustice (Denver).

For more on the suit, settlement and the Center’s efforts to protect the
California Desert Conservation Area visit:
<http://www.biologicaldiversity.org/swcbd/goldenstate/cdca/>
     __________________

CATTLE REMOVED FROM 244,000 ACRES OF BIGHORN CRITICAL
HABITAT INCLUDING THE NEW SANTA ROSA NATIONAL
MONUMENT
In response to a formal notice of intent to sue from the Center for
Biological Diversity, the Bureau of Land Management (BLM) has agreed
to remove cattle from 226,026 acres of designated critical habitat for the
endangered Peninsular ranges desert bighorn sheep. This is all bighorn
critical habitat managed by the BLM in California, including its 189,423
acre share of the recently designated Santa Rosa Mountains National
Monument.

A previous suit by the Center resulted in a legal settlement removing
livestock from the 17,982 acres of bighorn critical habitat within the San
Bernardino National Forest. Through the two legal actions, livestock have
been removed from all federally managed desert bighorn critical habitat.

Livestock threaten the sheep by grazing off desert grasses and spreading
wildlife diseases.
     ____________________

CRITICAL HABITAT PUTS BAY AREA DEVELOPMENT ON HOLD
In response to a lawsuit by the Center for Biological Diversity and the
Hayward Area Planning Association, the U.S. Army Corps of Engineers
has agreed to withdraw a permit for the Blue Rock Country Club, a 614
luxury home, 18 holes golf course complex. Also a defendant in the suit,
the U.S. Fish & Wildlife Service has agreed to review the development’s
impact on official “critical habitat” areas for the California red-legged frog
and the Alameda whipsnake.

The suit originally concerned the reversal by Fish & Wildlife Service
bureaucrats of a prior conclusion that the massive development would
jeopardize the whipsnake if allowed to proceed. Once critical habitat was
designated for the two species, however, both agencies agreed to review
the project anew under the more stringent federal requirements that
critical habitat not be “destroyed or adversely modified.”

The critical habitat areas were recently designated in response to legal
settlements reached by the Center, Christians Caring for Creations, The
Jumping Frog Research Institute and other groups. Blue Rock is the first
previously-approved development in the Bay Area that has been stopped
to protect a listed species' critical habitat.

The case was argued by Deborah Reames of Earthjustice Legal Defense
Fund.

California red-legged frog and habitat information:
<http://www.biologicaldiversity.org/swcbd/species/rlfrog/rlfrog.html>
Alameda whipsnake and habitat information:
<http://www.biologicaldiversity.org/swcbd/species/whipsnake/whipsnake.html>
     ___________________

COURT STRIKES DOWN FEDERAL REGULATIONS PREVENTING
PROTECTION OF CRITICAL HABITAT AREAS
On 3-15-01, a federal appeals court in Louisiana struck down a U.S.
Fish & Wildlife Service and the National Marine Fisheries Service
regulation which weakened the protection of “critical habitat” areas to
such an extent that the agencies have systematically refused to protect or
even designate it.

The Endangered Species Act distinguishes between the minimal need to
avoid driving species extinct and the more proactive requirement to
recover them to non-endangered status. Critical habitat is defined in
terms of recovery and was clearly intended to provide great protection
than mere avoidance of extinction. Nonetheless, federal agencies
developed their own regulations limiting critical habitat protection to
situations where species are threatened with extinction. This has prevented
the agencies from preventing most habitat loss or reducing a species's
likelihood of recovery.

The appeals court struck down the regulation, stating that it “sets the bar
too high,” undermining critical habitat’s proactive value. According to the
court, “Conservation is a much broader concept than mere survival,” and
kicks in habitat protection much sooner.

According to Robert Wiygul who argued the case for Earthjustice,
"This decision is a return to the original intent of the ESA – to recover
species and move them off the list. The ESA has been criticized for not
recovering enough species, but this decision tells us the Act has never
been given a fair chance." Indeed, the refusal of the U.S. Fish & Wildlife
Service to designate or protect critical habitat areas is probably the single
greatest threat to endangered species in the United States. It has
blocked the most basic level of protection for the 84% of imperiled
species which are threatened with habitat loss.

To view the court order:
<http://www.ca5.uscourts.gov/opinions/pub/00/00-30117-cv0.htm>