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