News for the ‘Endangered Species Act’ Category

Sex, Drugs, and the Public Trust

Let’s talk about this.  From the beginning, there was no private ownership of water.  Under Roman law, tidewaters (like rivers and seas) and submerged lands (stream beds and shoreline) were community property, held in trust by the state for the benefit of the public.  This approach to water management endured for most of human history.  Consider, for example, 13th century Spain.  Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise, recognized public rights in navigable waterways.  In England, this principle evolved into the common law public trust doctrine: the king held all waterways and submerged lands, not for himself, but rather “as trustee of a public trust for the benefit of the people” for uses like commerce, boating, and fishing.

After the American Revolution, each of the original states succeeded to this sovereign right and duty.  Each became trustee of the tide and submerged lands within its boundaries for the common use of the people.  Subsequently admitted states, like California, have the same sovereign rights under the equal footing doctrine.   That is, title to lands under navigable waters is held by the state in trust for the public good.  These lands are not alienable, as the public’s interest in them cannot be extinguished.

II. Purpose of the Public Trust

The Supreme Court described the nature of a state’s title to its tide and submerged lands in 1892, and although courts have reviewed tidelands trust issues many times since then, the Court’s premise remains fundamentally unchanged: a state’s title to its tide and submerged lands is different from that to the lands it holds for sale.  “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.  Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.  In other words, the public trust is an affirmation of the duty of the state to protect the public’s common uses of its waterways.

Are what are these common uses?  Traditionally, public trust uses were limited to water-bourne commerce, navigation, and fishing.  In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes.  It is flexible enough to accommodate changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat.  The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another.”

The state legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the trust and often may be the ultimate arbiter of permissible uses of trust lands.  All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes.  For this reason, the legislature cannot commit trust lands to private development because it would be abdicating its duty as a trustee.   Within these confines, however, the legislature has considerable discretion.

 The legislature speaks to the issue of permissible uses when it assigns trust lands to local governments.  Statutory trust grants are not all the same–some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.

A further and often complicating factor is that granted and ungranted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible.  Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use.  Piers, wharves and warehouses that once served commercial

navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use.  Historic public trust uses may have been replaced by new technologies.  Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters.  Public trust uses may and often do

conflict with one another.  The state and local tidelands grantees, as administrators of their

 

 

10Illinois Central Railroad v. Illinois, supra, at 452-53.

 

respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices.

For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.

III. The Leasing of Tidelands

 

 

A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses.  For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust.  Leases for the construction of wharves and warehouses and for

railroad uses, i.e., structures that directly promote port developme nt, were approved early in the 20th century.11   Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets.12   Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as

appropriate uses because as places of public accommodation, they allow broad public

 

 

 

 

11San Pedro etc. R.R. Co. v. Hamilton (1911) 161 Cal. 610; Koyner v. Miner (1916) 172

Cal. 448; Oakland v. Larue Wharf & Warehouse Co. (1918) 179 Cal. 207; City of Oakland v. Williams (1929) 206 Cal. 315.

 

12Haggerty v. City of Oakland (1958) 161 Cal.App.2d 407, 413-414.

 

access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.13

These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project:  (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands.  Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation

and fisheries over those uses encompassing changing public needs.14

 

 

 

 

 

 

 

 

 

 

 

IV. Promotion of Trust Uses and Public Enjoyment of Trust Lands

 

 

 

 

 

 

13Id. at p. 414; Martin v. Smith (1960) 184 Cal.App.2d 571, 577-78.

 

14National Audubon Society v. Superior Court, supra, at p. 434.

 

Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or

foster commercial enterprises.  Examples include oil production facilities, freeway bridges and nuclear power plants.15   Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways.  The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.16

Nevertheless, the essential trust pur poses have always been, and remain, water

 

 

related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.17

Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands.  These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide.  Examples may include hospitals,

supermarkets, department stores, and local government buildings and private office

 

 

 

15See Boone v. Kingsbury (1928) 206 Cal.148, 183; Colberg, Inc. v. State of California ex rel. Dept. Pub. Work, supra, at pp. 421-22; and Carstens v. California Coastal Com. (1986) 182

Cal.App.3d 277, 289.

 

16Carstens v. California Coastal Com., supra, at p. 289.

 

buildings that serve general  rather than specifically trust-related functions.

 

 

V. Mixed-Use Developments

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

17Joseph L. Sax, AThe Public Trust in Stormy Western Waters,@ October 1997.

 

Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use.  While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons.  These reasons simply make the development financially attractive to a developer.  Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage.  A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but

because it promotes a “commercial enterprise unaffected by a public use”18  rather than

 

promoting, fostering, accommodating or enhancing a public trust use.19   That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing.  It is an evolving use that is responsive to changing public needs for trust lands and for the benefits

 

 

18City of Long Beach v. Morse (1947) 31 Cal.2d 254, 261.

 

19Haggerty v. City of Oakland, supra, at pp. 413-14.

 

these lands provide.20

 

Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants.  Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.”  This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.”  Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with

the terms of the trust grants.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20National Audubon Society v. Superior Court, supra, at p. 434.

 

For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable.  That is, unlike some environmental

contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts.  To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses

while they remain useable for or susceptible of being used for water-related activities.21

 

 

VI.         Incidental Non-Trust Use

All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use.  Any structure designed or used primarily for a non- trust purpose would be suspect.  Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project.  The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure.22   In this context, the court noted

that because the real or main purpose of the structure was to promote public trust uses, non- trust groups could also use the facility, but the non-trust uses must remain incidental to the

 

 

 

 

21Atwood v. Hammond (1935) 4 Cal.2d 31, 42-43.

 

22Haggerty v. City of Oakland, supra, at p. 413.

 

main purpose of the structure.23   This is the state of the law, and it is supported by good policy reasons as well.  If the test for whether a non-trust use i s incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses.  Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and

parking garages likely being the dominant trust uses and structures being devoted to non- trust uses.

It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use.24   The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them.  Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by- structure basis.  Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use.  If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non- trust tenants, provided that the non-trust use is incidental to the main purpose of the

structure.

 

 

 

23Ibid.

 

VII. The Role of the Legislature

 

 

The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put.  The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state.25   The Legislature has the power to authorize the non-trust use of tidelands.  It has done so rarely, and then on a case- specific basis.26   Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.27

The Legislature has provided a statutory framework for the leasing of tidelands for

non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere

 

 

 

 

 

 

 

24National Audubon Society v. Superior Court, supra, at p. 440.

 

25City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 474.

 

26For example, in Chapter 728, Statutes of 1994, the Legislature authorized tidelands in

Newport Beach to continue to be put to non-trust uses for a limited term after it was determined that the tidelands had been erroneously characterized and treated as uplands by the city due to incorrect placement of the tidelands boundary.

 

27See, e.g., Boone v. Kingsbury, supra, at p. 183 and City of Coronado v. San Diego

Unified Port District, supra, at pp. 474-75; but see Mallon v. City of Long Beach (1955) 44

Cal.2d 199, 206-07, 212.

 

with (Long Beach) the uses and purposes of the granting statute.28   Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection.  This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and

accommodate projects that must be located on, over or adjacent to the tidelands.  These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.29

To ensure that the exercise of the Long Beach and San Francisco statutes is

 

 

consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small. Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the

 

 

 

 

 

28Ch. 1560, Stats. 1959; Ch. 422, Stats. 1975. These statutes also provide for, inter alia, the lease revenues to be used to further trust uses and purposes.

 

29Illinois Central R.R. Co. v. Illinois, supra, at pp. 452-54.

 

courts as tantamount to alienation.30

 

 

In several out-of-state cases, specific, express legislative authorizations of

 

 

incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions.31   One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where

legislation expressly permitted portions of the structure to be leased to private tenants for the production of income.  Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue.   In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building.  The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port,

legislation authorizing the leasing to private tenants was valid.32   Although both cases

 

 

involve challenges to financing and condemnation statutes and do not involve the public

 

 

 

30Atwood v. Hammond, supra, at p. 42; see also Illinois Central R.R. Co. v. Illinois, supra,

at pp. 454-53.

 

31Lerch v. Maryland Port Authority (1965) 240 Md. 438; Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) 12 N.Y.2d 379.

 

32Ibid.

 

trust, they are instructive because they demonstrate the importance to the courts, even in

 

 

the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.

VIII. Exchanges of Lands

 

 

Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are r are.33   In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust.  Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust. Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on

navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and

reclaimed, and (2) have thereby been excluded from the public channels and are no longer

 

 

 

 

33National Audubon Society v. Superior Court, supra, at p. 440.

 

available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust.  The grantee may thereafter make any use of the lands, free of trust restrictions.

In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the

lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange.  Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.

Posted: October 7th, 2011
Categories: Endangered Species Act, Energy, Property
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Open season on the underwolves

On August 25, 2011, the Ninth Circuit denied an emergency motion for an injunction pending appeal to re-instate Endangered Species Act protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. For the order, go here. Environmental groups appealed the case to the Ninth Circuit on August 13, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service to reissue a 2009 rule that removed ESA restrictions on the gray wolf.  Decision here. The same rule was determined by a district court to be illegal in 2010, here.

The environmental groups asserted, among other things, that the legislation violated separation-of-powers doctrine because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. Brief here.  The Service asserted that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states. Opposition brief here.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. In the meantime, Idaho opened its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.

Posted: September 21st, 2011
Categories: Endangered Species Act, Wolves!
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Congress v. Wolf, Part II

I previously discussed the wolf delisting rider to the budget compromise bill. I think it would be useful to summarize recent court opinions concerning the wolf, and consider the effects of the rider on those opinions.
The rider never mentions “wolf” or “delisting.” It simply requires the Fish & Wildlife Service (FWS) to reissue its April 2009 final rule (74 Fed. Reg. 15,123). That rule effectively delisted the “Rocky Mountain Population” of gray wolves from the endangered species listing. This delisting includes parts of Washington, Oregon and Utah, and all of Montana and Idaho. The population in Wyoming, however, was not delisted because Wyoming lacked “adequate regulatory mechanisms” to protect the wolf. After a District of Montana court order, FWS reversed its April 2009 final rule on October 26, 2010.

FWS also delisted the “Western Great Lakes Populations” of gray wolves in a separate rule (74 Fed. Reg. 15,070), also issued in April 2009. This second rule encompasses all of Minnesota, Wisconsin and Michigan, as well as parts of North Dakota, South Dakota, Illinois, Indiana and Ohio. Prior to this rule, FWS issued a similar delisting rule for the Western Great Lakes Populations of gray wolves in 2007 (72 Fed. Reg. 6,052), but that rule was struck by the District Court of D.C. in 2008.

Humane Soc’y of the U.S. v. Kempthorne, 579 F. Supp. 2d 7 (D.D.C. Sep. 29, 2008)

In this litigation, environmental groups challenged the 2007 FWS rule that delisted the Western Great Lakes gray wolf populations. The court held that the statutory language is ambiguous. The court then refused to defer to the FWS interpretation: that FWS can designate and delist a distinct population segment within a broader listing. The court vacated and remanded the rule back to FWS. This opinion shares many parallels with the Defenders of Wildlife opinion, discussed below. Both opinions reject FWS’s interpretation as impermissible given the statutory language and legislative history of the ESA. Nevertheless, FWS issued a new delisting rule for the “Western Great Lakes” populations in April 2009, and it remains to be seen if that rule can overcome the hurdles posed by this opinion.

Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. Aug. 5, 2010)

This opinion found that FWS violated the ESA by partially removing Endangered Species Act (ESA) protections for distinct population segments of the gray wolf. The court vacated the FWS’s Rocky Mountain delisting rule. The court determined that the legislative history of the ESA did not support the agency’s attempt to partially delist the wolf and therefore is not a permissible interpretation of the ESA. More importantly, the court held that the ESA unambiguously prohibits FWS from listing or delisting only part of a distinct population segment. (For you Chevron fans out there, that means the FWS rule failed both Chevron step 1 and 2.)

Because Congress did not amend the ESA with its wolf delisting rider, it is difficult to argue that the Defenders of Wildlife opinion is now invalid. And so Congress has, in effect, ordered FWS to reissue a final rule in violation of both the ESA and a direct court order. One could argue that Congress has implicitly delisted the wolf (and thus amended the ESA) with this rider (although I think that is a difficult argument to make). But the fact remains that it looks like Congress is ordering FWS to act in contempt of a direct court order.

Wyoming v. Dep’t of Interior, 2010 WL 4814950 (D. Wyo. Nov. 18, 2010)

This opinion goes the opposite direction of the District of Montana. The District of Wyoming declared that FWS acted arbitrarily and capriciously by not delisting the wolf in Wyoming. Weirdly, the opinion begins by quoting at length from A Sand County Almanac (Thinking Like a Mountain).

The crux of the problem for the court is that FWS wants Wyoming to designate the entire state as a managed trophy game area, even though most of the wolf habitat is in only part of the state (mainly northwestern Wyoming). FWS seeks to prevent excessive killing of the wolves, particularly under Wyoming’s defense of property law, which allows property owners to kill any wolf doing damage to private property. The court finds the FSA’s rejection of Wyoming’s proposed, more limited management area to be arbitrary and capricious.

The court remanded. It did not delist the wolf in Wyoming. This case is specifically protected by the wolf delisting rider, and in fact is the only case specifically mentioned in the rider language. But here the District of Wyoming remanded the final rule to the agency. FWS could choose not to delist the wolf and, in theory, still comply with this opinion.

Defenders of Wildlife v. Salazar, 2011 WL 1345670 (D. Mont. Apr. 9, 2011)

This case has gotten most of the recent press. This April 2011 opinion rejected a proposed settlement that would have delisted the wolves in Montana and Idaho. The court objected that it cannot approve a settlement that would, in effect, violate the ESA. The reasoning behind this case parallels the court’s earlier August 5, 2010 decision, and the rider will likely affect both decisions equally, if at all.

In short, the wolf delisting rider requires FWS to reissue a rule that was remanded by two courts: District of Wyoming and District of Montana. Republishing the rule without revision, as the rider seems to require, will be unresponsive to both court orders. And the rider protects at least one of those orders (the District of Wyoming). Perhaps FWS will determine that compliance with both the District of Wyoming and the Congressional rider requires it to revise the rule before re-publication. And we have yet to see a good argument for why Congress should be allowed to exclude this reissuance of the rule from all judicial review, or how reissuing this rule achieves the Congressional goal: delisting the wolf.

Posted: September 5th, 2011
Categories: Endangered Species Act, Wolves!
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Bill Would Strip Wolves of ESA Protection Forever

Eight members of Congress have introduced a bill called the State Sovereignty Wildlife Management Act. The sole purpose of HR 6485 is to render any listing of wolves as threatened or endangered under the Endangered Species Act legally irrelevant. While I have no reason to assume this bill will pass, the fact that officials elected to national office could propose such a thing underscores much of what’s wrong with, well, with everything.

Wolves are not a threat to people. In the history of the United States, there has never been a fatal wolf attack on a human. They do, however, sometimes eat livestock. Since their reintroduction into the Northern Rockies (emphasis on re- introduction because they used to live there until we exterminated them), ranchers have whined because they occasionally lose animals to wolves. Rather than treat this as a cost of doing business, ranchers argue that the wolves’ existence constitutes an unwelcome intrusion into the natural order of things. This despite the fact that the wolves used to inhabit the region in far greater numbers than the 1700 or so that currently exist there and that ranching (and the factory farming that it supports) has caused widespread damage to the region’s ecosystem.

Others complain about wolves preying on elk because it makes hunting (by humans) more challenging. Let’s think about that for a moment. First, there is no shortage of elk in the Northern Rockies. Second, wolves, as an alpha predator, help to control the herd in the way that is both natural and ecologically beneficial. Yet hunters complain that the wolves, who hunt without the benefit of anything except their bodies and who need the elk to survive, make it too hard (and consequently less fun) for recreational hunters to shoot the elk with high-powered rifles.

Then we have the recent court decision finding that Endangered Species Act requires that the wolf population be managed as an integrated whole rather than in a state-by state hodgepodge. Sensible though this might seem, it nonetheless has added to the outrage. Compounded by the entrenched bias against wolves that has existed since time immemorial, these complaints trigger unfortunate legislation such as HR 6485.

But the problem is not just with this bill and this animal. It has to do with rampant indifference to anthropogenic impacts on the natural world and a willingness to sacrifice animals, climate, ecosystems, oceans and most anything else for short-term human gain. The Endangered Species Act was and is one of the few outwardly directed laws ever enacted in this country. It explicitly subordinates human activity to the preservation of threatened and endangered species and their habitat. And that generosity of spirit has endangered the law itself almost from the moment of its passage.

We like to believe that society is evolving and becoming more sensitive to humanity’s role within the biosphere. We would like also to believe that lawmakers will respond to the increasingly urgent need to protect our threatened patrimony and strengthen rather than gut our environmental legal regime. But, sadly, neither belief seems accurate.

Posted: January 14th, 2011
Categories: Blog, Endangered Species Act, Wolves!
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