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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.
More Information:
Ruling,
Mexican
Spotted Owl Web
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