Tuesday, May 5, 2009

Environmental Dispute Between a Sparrow and a Hawk

In a thirty-seven page published decision, the Eleventh Circuit affirmed in part and reversed and remanded in part in Miccosukee Tribe of Indians of Florida v. USA. The court stated "This case involves one of those consequences, which pits a sparrow against a hawk"...however..."Birds cannot sue, but a tribe can and this one did."

The dispute relates back to two endangered birds and the Miccosukee Tribe's goal of protecting its own land. The first bird was "The Cape Sable seaside sparrow, which we will refer to as simply “the sparrow,” lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977." The second bird the "The Everglade Snail Kite, a type of hawk, lives in the marshes of Florida and Cuba. Like the sparrow, the kite was also listed as endangered in 1967 and received critical habitat designation in 1977. And like the sparrow, the kite’s survival depends on specific water levels."

"The problem, then, is that the kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates. Both birds are protected by the 1973 Endangered Species Act, 16 U.S.C. § 1531 et seq. The Act outlaws the “take” of any endangered species and it defines “take” to include “harm,” which in turn includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3."

The Fish & Wildlife Service proposed a plan to temporarily impact water supplies so that the water level was more favorable to the Kite during the Kite breeding season. "The Miccosukee Tribe launches a three-front assault on the 2006 biological opinion and the incidental take statement. The Tribe’s first contention is that the 2006 biological opinion is ‘not in accordance with law’ because it fails to follow proper procedures, which require using the best available scientific data, giving the benefit of the doubt to the species, analyzing the environmental baseline and cumulative effects, and issuing a proper incidental take statement. See 5 U.S.C. § 706(2)(A). The Tribe’s second contention is that the 2006 biological opinion is arbitrary and capricious because it arrives at conclusions that are counter to the scientific data in the record or are so implausible that they go beyond an acceptable difference of expert opinion. See Alabama-Tombigbee, 477 F.3d at 1254. The tribe’s third contention is that the incidental take statement is deficient because it improperly quantifies incidental take in terms of habitat markers and fails to provide a meaningful trigger for re-consultation."

The Court rejected the first two arguments but agreed with the Tribe as to the third argument. The court held: "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion.


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