Subject: FW: SW BIODIVERSITY ALERT #60

Subject: SW BIODIVERSITY ALERT #60

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           SOUTHWEST BIODIVERSITY ALERT #60
                                            3/27/97          

         SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY
                       silver city, tucson, phoenix, san diego
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1. SUIT FILED TO LIST SOUTHERN CALIFORNIA PLANT AS ENDANGERED-
   SAN DIEGO M.S.C.P. ILLEGALLY USED AS EXCUSE TO NOT LIST

2. COURT STRIKES DOWN PRE-LISTING CONSERVATION AGREEMENT FOR
   BARTON SPRINGS SALAMANDER- FINDS POLITICAL INTERFERENCE, LACK OF
   SPECIES PROTECTION ILLEGAL

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SUIT FILED TO LIST SOUTHERN CALIFORNIA PLANT AS ENDANGERED-
SAN DIEGO M.S.C.P. ILLEGALLY USED AS EXCUSE TO NOT LIST

The Southwest Center For Biological Diversity, the California Native
Plant Society and the Endangered Habitats League filed suit today
against the US Fish and Wildlife Service for failing to list
the short-leaved dudleya under the Endangered Species Act.

In their decision to de-propose rather than list dudleya as
endangered, the Service claimed threats to the dudleya would be
removed by the City of San Diego's yet-to-be-finalized Multiple
Species Conservation Program (MSCP) and the City's existing Resource
Protection Ordinance (RPO). Recent Southwest Center legal victories
on the Queen Charlotte goshawk and Alexander Archipelago wolf,
however, established that the Fish and Wildlife Service may not use
the speculative benefits of a future conservation plan to deny ESA
protection. The Service itself has previously stated that the City's
current RPO provides no protection for the species.

Even if the MSCP is finalized, the program does not remove
significant threats to the species- one important population is
outside of the MSCP, preserve boundaries have not been determined on
Carmel Mountain, no specific management recommendations have been
provided, and no funding mechanism exists for the purchase of
critical land. The dudleya is the first of several species expected
to be denied ESA protection based on the existence of the MSCP.

Never common, the short-leaved dudleya is a tiny succulent found
only at five isolated localities along the northern San Diego County
coastline. The dudleya, much like its neighbor Torrey Pines and
surrounding southern maritime chaparral, is a pleistocene relict and
is one of the rarest and most imperiled plant species in southern
California. All remaining populations are threatened by trampling,
and the largest population is threatened by development on Carmel
Mountain.

Meyer and Glitzenstein represent the litigants.


FEDERAL JUDGE STRIKES DOWN PRE-LISTING CONSERVATION AGREEMENT FOR
BARTON SPRINGS SALAMANDER- FINDS POLITICAL INTERFERENCE, LACK OF
SPECIES PROTECTION ILLEGAL

In an opinion released yesterday,  Senior Federal Judge Lucius
Bunton found that Secretary of the Interior Bruce Babbitt violated
the Endangered Species Act (ESA) and the Administrative Procedures
Act (APA) when he decided to withdraw the proposed endangered
listing of the Barton Springs Salamander because of a pre-listing
conservation agreement.

The court's ruling in favor of the Save Our Springs Alliance and
University of Texas Professor of Zoology Mark Kirkpatrick requires the
Secretary of the Interior to make a new decision on the Barton Springs
Salamander listing within 30 days. 

The Court found that "strong political pressure was applied to the
Secretary to withdraw the proposed listing of the salamander" and
that the record suggested "that political lobbyists for the
development community worked with political appointees of the
Secretary."  The Court held that "the Secretary's decision to
withdraw the listing of the Barton Springs salamander was arbitrary
and capricious and that the Secretary relied on factors other than
those contemplated by the ESA."

In summarizing its holding, the Court stated:

 "This Court finds as a matter of law that the Secretary failed to 
follow proper procedures under the APA and ESA.  He failed to allow
comment on issues that were fundamental to his ultimate decision.  He
missed virtually every statutory deadline provided in the ESA.  And he
considered factors other than those contemplated by the ESA."

"The Court finds that the Secretary should have only utilized the
best scientific and commercial data available to make his decision."

Perhaps most notably, the Court held that it was improper for the
Secretary to withdraw the proposed endangered listing based on a
"Conservation Agreement" the U.S. Fish & Wildlife Service entered
into with the Texas Natural Resource Conservation Commission, the
Texas Department of Transportation, and the Texas Parks & Wildlife
Department, explaining:

"The effect of the measures articulated in the Conservation
Agreement on the species is speculative.  There are no assurances
that the measures will be carried out, when they will be carried
out, nor whether they will be effective in eliminating the threats
to the species." 

The Court then explains that even if the Conservation Agreement were
properly considered, that the Agreement fails to address eight
different threats to Barton Springs that were identified by the
Secretary in his 1994 proposal to add the Salamander to the
endangered species list.

This is the second suit the Fish and Wildlife Service has lost in
its efforts to not list the Barton Springs salamander. The court
previously ruled that the Service violated the ESA in delaying a
decision on whether to propose the Salamander as endangered.

The Barton Springs Salamander is a small aquatic salamander that
lives at Barton Springs and nowhere else in the world.  In quoting
Interior's own findings, the Court notes that the "very restricted
range of the Barton Springs salamander makes this species especially
vulnerable to acute and/or cumulative groundwater contamination," and
that the U.S. Fish & Wildlife Service had identified the Salamander
as its top priority for adding to the endangered species list among
all candidates for listing in the Service's four state southwest
region (Tx, New Mex., Ariz. and Okla.).

For more information, contact Bill Bunch, Save Our Springs,
<bbunch@bga.com >

_______________________________________________________________________________
Kieran Suckling                                       ksuckling@sw-center.org
Executive Director                                    phone:  520-733-1391
Southwest Center for Biological Diversity        fax:    520-733-1404
POB 17839, Tucson, AZ 85731
http://www.envirolink.org/orgs/sw-center