NEWS ROUNDUP

Supreme Court - ESA does not trump the CWA On June 25, 2007, the U.S. Supreme Court issued a 5-4 split decision in National Association of Home Builders v. Defenders of Wildlife, 2007 WL 1801745, that is expected to have far-reaching implications. The decision addressed the intersection of two independent statutes--the Clean Water Act (the "CWA") and the Endangered Species Act (the "ESA")--and answered the twin questions of whether the ESA constitutes a "super statute" that effectively overrides or repeals other statutes, and whether the ESA consultation requirement can be read to impose additional substantive obligations on an agency to protect listed species when such obligations are otherwise absent under the agency’s organic authority. The case arose as a result of the Environmental Protection Agency’s (the "EPA") decision to transfer the National Pollutant Discharge Elimination System program under CWA section 402(b) to the state of Arizona. That section of the CWA provides "that the EPA ‘shall approve’ a transfer application unless it determines that a state lacks adequate authority to perform the nine functions specified in the section." 33 U.S.C. § 1362(b). The Supreme Court’s decision confirms that the list under CWA section 402(b) is both exclusive and mandatory and is not to be enlarged by the ESA. The Court emphasized that because Arizona’s application satisfied all nine criteria, the EPA lacked the discretion to make any decision other than to approve the transfer to Arizona, and the consultation requirement under ESA section 7(a)(2) was simply not triggered in this case. As reasoned by the Court, any other interpretation would have resulted in a partial repeal of the CWA, with the ESA imposing a 10 criterion on the transfer of permitting authority a result that the Court went to great lengths to reject. According to the Court, "nothing in the text of section 402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application." The majority’s opinion has the effect of scaling back the breadth with which the Ninth Circuit had previously inflated the consultation provision. ESA section 7(a)(2) requires each federal agency to ensure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species. 16 U.S.C. §1536 (a)(2). In reversing the Ninth Circuit’s opinion in this case, the majority opinion deferred to the ESA’s implementing regulations and held that the consultation requirement does not override other statutory authorities and is only triggered when a federal agency undertakes a discretionary agency action, as stated in 50 C.F.R. § 402.03. Conversely, an agency is not obligated to engage in the consultation process when it undertakes an action that is mandated by statute. The Court explained that when an agency is required to do something by statute, it simply lacks the power to ensure that such action will not jeopardize endangered species, and thus, in those situations, is not obligated to conduct a consultation under ESA section 7(a)(2)....
Backfire jumps line, forcing evacuations Firefighters suffered a setback while trying to tame a raging wildfire near Lake Tahoe on Tuesday after flames from a backfire they set to keep the blaze from reaching more houses jumped a fireline, trapping two firefighters and prompting a fresh round of evacuations. The two firefighters were part of a group working to protect the Tallac Village development in South Lake Tahoe when the wind picked up and sent the backfire swooping down on them, said Chuck Dickson, a U.S. Forest Service spokesman. The blaze descended so quickly the pair were forced to deploy the emergency shelters firefighters carry to protect themselves during burnovers as a last resort, Dickson said. They were uninjured and managed to walk out of the new burn area, he said. As a fresh plume of black smoke billowed over Lake Tahoe, the new arm of the wildfire prompted the mandatory evacuation of the entire Tallac subdivision. It was unclear how many homes were subject to the order....
Editorial: A legacy of catastrophic fires As if the devastation caused by the Angora fire at Lake Tahoe isn't sickening enough, the political grandstanding that is now taking place on Capitol Hill in its wake is sure to turn your stomach. With the fires that have already caused upwards of $100 million in property damage and left scores of people homeless still raging, U.S. Sen. Harry Reid on Tuesday issued a press release heralding legislation that he and Sen. John Ensign introduced last week to help ranchers prevent rangeland wildfires ... as if the people living around Lake Tahoe are supposed to find some comfort in that revelation. For some equally irrelevant reason, Reid also pointed out that last year - last year - he and Ensign passed legislation providing more than $200 million for hazardous fuels reduction in the Tahoe basin to prevent catastrophic fires like the Angora fire. What does that have to do with the tragedy unfolding at Lake Tahoe this year, except to make some kind of perverted, self-serving claim to foresight and vision on this issue at a time when nobody really cares about Harry Reid's illusions of grandeur, foresight or vision? It gets worse. Reid's propaganda machine also wants you to understand that the Bush administration has been a total failure on fire suppression and prevention, as demonstrated by its opposition to additional funding in the U.S. Forest Service's already bloated fire fighting budget. Anybody who has investigated the Forest Service fire fighting organization understands that thousands of bureaucrats have a vested interest in maintaining the status quo of not cutting trees ... and reducing forest fuel loads. It's called big budgets, big egos, adrenaline, double time and hazard pay. Too bad Reid forgot to mention how his colleagues in the Democratic Party have blocked every reasonable attempt to restore some sense of multiple-use management of National Forest lands, i.e., commercial logging. Working in concert with their friends from the Natural Resources Defense Council, Sierra Club, and other environmental extremists, the Democrats have, through the Endangered Species Act, wilderness areas, roadless areas, and their corollaries, prescribed forest conditions that guarantee more of what is destroying Lake Tahoe this week....
NBC Features Woman Blaming Wildfires on Environmental Regulations On Tuesday's NBC Nightly News, while reporting from Lake Tahoe, correspondent George Lewis relayed one homeowner's complaint that environmental regulations had contributed to the danger of wildfires in the area. She further contended that the only reason her home survived was because she had cleared away brush near her home in violation of the law. Lewis: "She blames environmentalists and bureaucrats for creating rules that, in her opinion, increased the fire hazard. Says she had to break the law to clear brush off adjacent federal land." Below is a complete transcript of the report by George Lewis from the Tuesday June 26 NBC Nightly News: GEORGE LEWIS: As the fire has jumped those lines, additional evacuations of people who live here are under way. This, as people who live in the previously burned areas were trying to get back home. This morning, after she pleaded, argued and reasoned with the authorities, Sue Abrams was granted permission to return to her home, still standing in one of the burned out areas. SUE ABRAMS: The fence is gone, most of my landscaping is gone, but we have our home. My neighbor Jason's over there right now. He doesn't have a home. It's gone. LEWIS: She blames environmentalists and bureaucrats for creating rules that, in her opinion, increased the fire hazard. Says she had to break the law to clear brush off adjacent federal land. ABRAMS: I took the chance and said, "Okay, come arrest me."....
CO2 seen as key to increasing oil production Wyoming oil producers desperately want to divert streams of greenhouse gas currently being vented into the atmosphere and pump them into aging oil fields for permanent storage. The producers' main goal may not be rooted in concerns over climate change. Nonetheless, the capture and storage of carbon dioxide - the main greenhouse gas contributing to climate change - is key to reviving oil production for the next 30 years and beyond in Wyoming. The Wyoming Enhanced Oil Recovery Institute estimates that some 20 trillion cubic feet of CO2 could be sequestered in Wyoming's oil basins. The institute held a forum in Casper Tuesday, bringing together those who produce CO2 and those who want CO2 for enhanced oil recovery. "CO2 is deathly expensive here," said John Dobitz, senior vice president of Rancher Energy Corp. In many oil fields, as much as 60 percent of the original oil reserve remains unproduced after conventional low-pressure recovery methods. In enhanced oil recovery, alternate flows of water and CO2 are pumped into an oil reservoir, sweeping additional volumes of oil to production wells. After several years of "CO2 flooding" at the Salt Creek field in central Wyoming, Anadarko Petroleum helped stop Wyoming's annual 5 percent decline in oil production in 2006. But there are hundreds of old oil fields that don't yet have access to CO2....
Ospreys, swans struggling to keep numbers up in yellowstone Fish-eating ospreys are becoming rarer on Yellowstone Lake in Yellowstone National Park, mostly because of a drastic decline in native cutthroat trout. Terry McEneaney, Yellow-stone's ornithologist, said only nine nesting pairs of ospreys were observed on the lake last year and that the population in that area appears to be declining "at a staggering rate." "I go out there and I see very few osprey anymore," McEneaney said. "I used to see 20 or 30 in a day, and now I'm lucky to see a couple." Trumpeter swans, one of Yellowstone's signature birds, also continue to decline, reaching some of their lowest numbers since the 1930s, according to a 2006 report on the park's birds. The number of swans in Yellowstone has dropped steadily since 1961 and now stands at 14, McEneaney said. Although the bird is surviving elsewhere in North America, Yellowstone's small, long-running population continues its struggle....
BLM examining climate change If the West becomes warmer and drier, the Bureau of Land Management hopes to be in a position to respond, Acting Director Jim Hughes said Tuesday in a visit to the agency's office in Billings. "The department has put together a Global Climate Change Task Force to answer some of the questions," he said. "We want to know where we can make a difference and where we can't." Task force members will try to find the best available science, determine what effects global warming will have and what should be done about it, Hughes said in the final day of a swing through Montana that started in Great Falls and included the Upper Missouri Breaks National Monument. He will travel to Casper, Wyo., today. BLM will be looking for answers to a myriad of questions. What, for instance, should be done about species that expand their range in response to climate change? Should BLM attempt to clear the invading plants and animals, or accept the change and try to manage it?....
GAO report criticizes federal agencies on firefighting The Government Accountability Office on Tuesday released a report highly critical of federal agencies' efforts to rein in the costs of managing wildfires, while some senators pushed the agencies to more actively manage forests to prevent fires. Federal officials disputed the charges in the GAO report, which was released at a hearing of the Senate Energy and Natural Resources Committee. The report was pointedly titled "Lack of Clear Goals or a Strategy Hinders Federal Agencies' Efforts to Contain the Costs of Fighting Fires." Robin Nazzaro of the GAO testified that the Forest Service and Interior Department have begun steps to address problem areas found by previous studies. But the effects of the actions are unknown because many steps have not been completed, she said. Sen. Pete Domenici, R-N.M., the top Republican on the committee, said he was in Montana last summer while the Derby fire raged. He displayed a picture of it and said much of the carbon captured by the trees and soil in the forest was released into the atmosphere when they burned. Domenici said many areas of national forests are "embarrassing" because they are so infested with insects and rotten trees. "Nothing is done, or by the time you get around to it, the trees are no good," he said....
Our View The defeat for Harvey Robbins, a Wyoming rancher who became a target for BLM harassment after he refused to grant a right of way across his land, might further embolden petty tyrants in federal land agencies, who now know they can abuse their positions, and citizens, with impunity. Robbins fought for the right of average citizens to hold individuals in government accountable for abuses of power. But only two justices, Ruth Bader Ginsburg and John Paul Stevens, sided with the individual over the state. “The record is replete with accounts of trespasses to Robbins’ property, vindictive cancelations of his rights to access federal land and unjustified or selective enforcement actions,” Ginsburg wrote in a dissent. This “seven-year campaign of harassment” had “a devastating impact on Robbins’ business.” The majority sympathized with government, however. Such suits “would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations,” worried Justice David Souter. But what’s wrong with that, if government officials, in the course are all the good deed doing, are found to be trampling the rights of citizens?
Rancher's tactics didn't fly The legal battle between the Bureau of Land Management and Hot Springs County rancher was much more a fight over tort damages than a battle over grazing on public lands, said an attorney for a conservation group. Rather than continue sparring with the BLM over grazing violations, Robbins and his attorney, Karen Budd-Falen, took a new approach: a Racketeer Influenced and Corrupt Organizations Act claim and a similarly grounded claim that BLM employees had violated Robbins’ Fifth Amendment rights. The 10th U.S. Circuit Court of Appeals had ruled that the federal employees did not have immunity from the Fifth Amendment claim or the allegations under the racketeering law. But the nation's high court found otherwise Monday, rejecting the Fifth Amendment claim on a 7-2 vote and the racketeering case 9-0. Lucas said the lawsuit was a creative legal tactic used by Robbins’ legal team to picture the rancher as “a little guy versus the big, bad government.” It didn’t work, Lucas said, because the majority of the court wasn’t willing to create a new arena of claims against the federal government, based on this case. Budd-Falen said Monday she was disappointed by the Supreme Court ruling. “It looks like the government can use any means to coerce individuals to give up easements,” she said, referring to the large number of harassing tactics allegedly used by the BLM. William Perry Pendley, president and chief legal officer of the conservative law firm Mountain States Legal Foundation, also expressed disappointed in the ruling. “It is consistent with this court’s rollback of remedies available to citizens, in the face of government abuse,” he said. “Yet this case should not have reached the Supreme Court; instead, these bureaucrats should have been reined in. Shame on the BLM; shame on the Department of the Interior; and shame on the Bush administration for turning a blind eye to this abuse.”....You wouldn't know it from these excerpts, but if you are looking for an example of extremely biased news reporting, click on the link above to this article.
Grouse and gas An awkward industrial dance is playing out on the sage flats of the West, a lopsided coupling of billion-dollar energy companies and a skittish ground bird prone to flee at first sight of a drilling rig. If the bird, the greater sage grouse, lands on the endangered species list as some propose, that could put the brakes on the oil and gas activity surging through Wyoming, Utah, Colorado and Montana. So during spring breeding, companies working some of the nation's richest gas fields let rigs go idle for months at a time rather than risk interrupting sage grouse mating rituals. Roads to oil and gas wells are rerouted to skirt the bird's territory. Power lines are buried to deny hunting perches to grouse-eating raptors. If those measures don't work, some companies are pledging tens of millions of dollars to recreate sage grouse habitat. But as another breeding season ends this month and rigs again roll through the sage, a chorus of federal and university biologists and state officials says the companies' grouse conservation efforts are failing. With decades of drilling still planned, they say the industry must either redouble conservation or risk pushing sage grouse off the landscape....
Team begins grouse study An independent research group is jumping in to the sage grouse fray, trying to determine the impact of predators, humans and Mother Nature on the birds. Craighead Beringia South, a research and educational institute based in Kelly, has received about $62,000 from the state to begin a three-year project looking at sage grouse in the Jackson area, and in two areas of the Upper Green River Valley. The institute will be the first to put GPS transmitters on sage grouse and ravens to watch the interplay between certain predators and prey. The research comes as the state is developing sage grouse conservation plans. Sage grouse have been declining in the West, and work is ongoing to protect habitat and prevent the bird from being federally protected. Quigley said the research on grouse "should have been started five years ago," but Beringia is working to study lek breeding -- sites that include the Ryegrass area in Pinedale, and the Pinedale Anticline. The Anticline represents an area with sage grouse that is intensely developed; the Ryegrass and Jackson areas are places with little or no development....
Cheney left mark on environment Sue Ellen Wooldridge, the 19th-ranking Interior Department official, arrived at her desk in Room 6140 a few months after Inauguration Day 2001. A phone message awaited her. "This is Dick Cheney," said the man on her voice mail, Wooldridge recalled in an interview. "I understand you are the person handling this Klamath situation. Please call me at — hmm, I guess I don't know my own number. I'm over at the White House." Wooldridge wrote off the message as a prank. It was not. Cheney had reached far down the chain of command, on so unexpected a point of vice presidential concern, because he had spotted a political threat arriving on Wooldridge's desk. In Oregon, a battleground state that the Bush-Cheney ticket had lost by less than half of 1 percent, drought-stricken farmers and ranchers were about to be cut off from the irrigation water that kept their cropland and pastures green. Federal biologists said the Endangered Species Act left the government no choice: The survival of two imperiled species of fish was at stake. Law and science seemed to be on the side of the fish. Then the vice president stepped in....
City officials hoping for hotel property's sale to developer City officials have been working quietly for more than a year on behalf of the developer of the DoubleTree Hotel to encourage the land's current owners to sell it to Harry Wu, the developer and lease holder of the hotel. The city's work assisting Wu began after talks between Wu and the owners about a possible sale broke down, the owners said. The city sent a letter to the owners threatening the use of eminent domain a year ago and have since had several meetings with the owners. The City Council is meeting in closed session tonight to discuss the issue. The city is hoping the owners sell because Wu's lease to operate the hotel expires in about 14 years. Wu completed a $10 million overhaul of the hotel last year, and he wants to ensure that the expense was not wasted, city officials said. Rolland Towne, co-owner of the property, said he believes that before Wu purchased the hotel in 2005, Wu was given assurances by the city that a deal would be worked out for him to gain ownership of the land, with the city invoking its powers of eminent domain if necessary. "(Wu) knew what was going to happen before he went to us," Towne said. "He wouldn't have bought the hotel" unless he had assurances from the city....
Biofuels to blame as beer prices soar 40 per cent in Germany Biofuels may be good for the environment, but they are bad news for German beer drinkers. Prices in the country's pubs look set to rise by 40 per cent this year, because Germany's farmers are growing less barley for beer production and more crops for biodiesel and bioethanol. The head of the German brewers' association, Richard Weber, has caused outrage among friends of the annual Oktoberfest beer jamboree by predicting the hefty price rise. He pointed out that the German barley crop has been halved this year and that prices have soared by 50 per cent within 12 months. Poor-quality harvests, caused by unusually hot weather, have not helped either. As a result, Germany's brewers, which insist on the purity of their beer and offer organic brands to emphasise their green-tinged credentials, have turned over a new leaf. They are now demanding an end to the use of crops to make fuel....
Web site offers a dating service for farmers Bullboy is 24 and looking for company between rodeos. Strawman is a "down-to-earth cowpoke in search of a like-minded individual." "Critters and horse mom" insists you must be an animal lover "to get near my barn." Members of FarmersOnly.com say they want more than the proverbial roll in the hay. They want that special someone who won't be jealous of a field of cattle or expect vacations during harvest. If Harley drivers, Jewish singles, Democrats, Republicans and born-again Christians can have their own online dating services, why not farmers? Founder Jerry Miller, an Ohio ad representative, pondered that question after hearing the same song from his rural clients. Miller, 54, interviewed farmers, ranchers and rural residents across the country before launching the site 18 months ago. Whether they worked with crops, cattle, organic farms, horses or at the town store, the answers were the same. "They already know everybody, so the dating pool is very small. So what do you do?" he said. "Hang out in the next town at the feed store hoping your mate walks through the door?" Despite the site's credo that "City folks just don't get it," FarmersOnly has pulled in a number of urban types, and they aren't stuffy women from the city bars. The city slickers practically apologize and claim a burning desire to ditch the rat race....
Clean Water for Cows They say you can lead a horse to water, but you can`t make it drink. It might be a little happier to drink water that`s clean and fresh. And if your horse is a cow, and you`re a rancher, that clean water could have a big payoff. Dugouts and stock ponds are a fixture in every rancher`s pasture. Usually those water holes get pretty muddy. You might say it`s in the water. But in this case, it`s what`s not in the water. Cows. "Usually when the cows go to water the whole herd goes all at once. The first cow gets fresh water, and the rest get muddy water. By the time the calves get there it`s pretty polluted up," says Jim Hopfauf, a rancher near St. Anthony. But not anymore. This portable pump moves water from these ponds to this tank, where cows can drink at their leisure. "If they drink fresh water, the cows and calves will gain more weight and have better health," Jim says. The surrounding area also has some better health. There are environmental benefits to the pumping system. Two years ago this pond was surrounded by mud. Now it`s surrounded by lush green grass....
Japanese cow herd coddled for 12 years to make Kobe beef Even by the standards of Texas -- where beef is no trivial matter -- rancher Jose Antonio Elias Calles (KAH'-yehs) has coddled his cattle. The livestock imported from Japan are guarded by off-duty Texas Rangers and kept away from American bulls that might contaminate their coveted gene pool. They're meticulously reared for 12 years before a single hamburger could be sold. Japanese cattle -- which come in red and black varieties -- are a closely guarded national treasure. Their beef is often called "Kobe (KOH'-beh) beef" by American restaurants, where it commands staggering prices. But it's cherished by chefs and foodies for its thorough marbling of fat that gives the meat tenderness and rich flavor. On a 0 to 12 quality scale used to rate beef in Japan, where heavy fat marbling is preferred, Kobe rates a minimum nine points and Angus beef 4.5. Calles' beef rate around 7.5 to 8.5....
AJ ghost town celebrates the cowboy way If you sport a clean-shaven chin and have an enormous mustache to boot, organizers of The National Day of the American Cowboy celebration in Apache Junction want you to keep it that way - at least until July 28. That's the day that the country will celebrate the day of the cowboy and the cowgirl. The National Day of the American Cowboy - this year July 28 as proclaimed by the U.S. Senate - recognizes the contributions of cowboys and cowgirls and the Western culture that includes rodeo athletes, musicians, poets, artists and ranchers. On that day, Goldfield Ghost Town will have cowboys parading through the streets, a fast draw contest, a Texas hold 'em poker tournament, skits and gunfights by the Goldfield Gunfighters and performing cowboy poets among many other Wild West themed festivities. Included, too, is the Earp-Holliday Mustache Contest,which seeks to select the West's best-dressed upper lip....
Stories of the ‘Duke’ enliven meeting Three southern Arizona men who knew film superstar John Wayne talked Tuesday about their memories of him, including a cavalry charge that went awry in a Civil War epic. They were Bob Shelton, founder of the Old Tucson movie studio, local TV personality Don Collier who acted in some of Wayne’s westerns and Teddy Wingfield whose family owned a ranch where the movie star often visited. Collier was one of the actors in a scene where rebel cavalry prepared to overrun Union forces, headed by Wayne. After much discussion between the movie makers and Wayne about a dozen rebel riders were placed between each of 15 canons. “We were probably going to lose this battle,” Collier recalled. But when the canons fired, pandemonium reigned. “The horses were bucking and falling down” and running wild said Collier. He added: “Yeah, we won that one.” Wingfield recalled that his father, rancher Ralph Wingfield, was a fast friend of Wayne’s, often coming here to spend time away from Hollywood....