Posted on 11/21/2001 8:44:13 AM PST by enraged
Contact: Duane Desiderio, NAHB Director of Legal Services & Litigation 202-266-8146 OR Beth Bauer, OBIA Executive Vice-President 503-378-9066, EXT. 3 FOR IMMEDIATE RELEASE
NMFS OFFICIAL ADMITS CRITICAL HABITAT DESIGNATIONS FOR SALMON AND STEELHEAD ARE BASELESS
NMFS official remarks "We just designate everything as critical, without an analysis of how much habitat a [species] needs"
Salem, OR. (November 16, 2001) - The National Association of Home Builders (NAHB) has uncovered a document in which a high-ranking National Marine Fisheries Service (NMFS) official admits that NMFS' critical habitat designations for west coast salmonids are baseless.
The Endangered Species Act limits critical habitat designations to only those areas that are "essential to the conservation of the species," and it requires NMFS to weigh the economic impacts of critical habitat protection before it is designated.
In an intra-agency memorandum, Donna Darm, who was NMFS acting Regional Administrator for the Northwest until October 1, said: "When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat an ESU needs . . . ." Darm added that no analysis of habitat need was performed "because we lack information."
NMFS has designated "everything" as critical habitat in over 150 watersheds blanketing California, Idaho, Oregon, and Washington. The designations have enormous regulatory impacts on the use of land and water because the Endangered Species Act prohibits any federal project, permit, or federally funded action from "adversely modifying" critical habitat. Federal critical habitat is also a key trigger for many state and local land use restrictions.
The regulatory demands of critical habitat are applied through a process called "consultation" under Section 7 of the Endangered Species Act. The document uncovered by NAHB includes comments by Ms. Darm on NMFS' development of a habitat approach to consultation. She summarized NMFS' habitat approach, now used in all consultations, as follows: "We just say we need it all."
In a reference to the recent Alsea Valley Alliance court ruling invalidating NMFS' listing of Oregon coastal coho salmon as a threatened species, NAHB spokesman Duane Desiderio called Darm's statements "an example of NMFS' careless approach to ESA enforcement that has called all of its species listing decisions into question." Desiderio added, "critical habitat designations will be the next bricks to fall out of NMFS' regulatory wall."
In court papers filed in September with a federal district court in California, NMFS conceded that it failed to consider the economic impacts of critical habitat designations for salmon and steelhead, but argued that designations should remain in effect while NMFS conducts a review limited to economic issues.
The plaintiffs in the California lawsuit, and the NAHB, which has filed a similar lawsuit in Washington, D.C., maintain that NMFS' failure to consider economics, alone, is reason to invalidate its critical habitat designations. However, the documents recently uncovered by NAHB confirm that NMFS' critical habitat designations also lack any scientific foundation.
The NAHB leads a coalition of eight trade associations, including the Oregon Building Industry Association, and eight counties from four states who are challenging NMFS' critical habitat designations in a federal lawsuit filed in Washington, D.C. The Oregon Building Industry Association filed comments during the open comment period on critical habitat designation in 1998 and is one of the original plaintiffs in the litigation. The lawsuit also challenges NMFS' designation of "essential fish habitat" for Pacific salmon on similar grounds. NMFS consults with federal agencies on essential fish habitat effects pursuant to the Magnuson-Stevens Fishery Conservation Management Act.
Documents and court papers referred to in this release are available on the internet at www.obia.net
farmfriend, could you go into JohnHuang2 mode with your pingy thingy? Thanks in advance! ;o)
This quote is absolutely incredible, "In an intra-agency memorandum, Donna Darm, who was NMFS acting Regional Administrator for the Northwest until October 1, said: "When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat an ESU needs . . . ." Darm added that no analysis of habitat need was performed "because we lack information."
Enraged, thanks for finding this and posting it!
NMFS has designated "everything" as critical habitat in over 150 watersheds blanketing California, Idaho, Oregon, and Washington. The designations have enormous regulatory impacts on the use of land and water because the Endangered Species Act prohibits any federal project, permit, or federally funded action from "adversely modifying" critical habitat. Federal critical habitat is also a key trigger for many state and local land use restrictions."
Ms Darm should be sued by everyone who has suffered damages due to any decision while she was in power to make these comments!
These enviralists in government are as dangerous as the Islamic Terrorist and maybe even more so. As they make rulings like these to cripple economies, the workers and to facilitate Rural cleansing of Americans who live in work in Druid coveted areas!
Under oath, I would like see her enviral connections documented, and how long she has been connected!
Enviralists = terrorists!
It is not my fault if you can't surf!
... and negotiate the rest of the way down from there.
News from the Front #59:
NMFS Official Admits Bogus ESA Analyses
All power tends to corrupt; absolute power corrupts absolutely" (Lord Acton)
Section 7 consultations occur when a federal agency plans to take action that "may affect" salmon, and asks the National Marine Fisheries Service (NMFS) for an opinion as to whether the action will jeopardize the continued existence of the "species". 16 U.S.C. § 1536(a)(2). The Endangered Species Act also charges NMFS to identify "critical habitat" for listed salmon, that is, "specific areas . . . on which are found those physical or biological features (i) essential to the conservation of the species and (ii) which may require special management considerations or protection". 16 U.S.C. § 1532(5)(A). In its typical ham-handed approach to limiting government power, Congress specified that "critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species" -- "[e]xcept in those circumstances determined by the Secretary". 16 U.S.C. § 1532(5)(C).
Recent litigation has produced a revealing e-mail from Donna Darm, a high-ranking official at the Northwest Regional Office of NMFS. (She served as Acting Regional Administrator before President Bush appointed a new Regional Administrator). Stuck on a "REALLY long plane ride to Anchorage" in 1998, she took the time to set forth her thoughts on NMFS' implementation of the Endangered Species Act at some length in the course of commenting on a colleague's paper.
Among several interesting observations, which may be downloaded here, is a blockbuster:
These are remarkable statements, remarkable for blinding truth of a nature rarely seen in government documents. What Ms. Darm is admitting is that NMFS routinely demands that all habitat occupied by a listed species be called "critical", whether or not it is critical. And she is admitting that NMFS routinely demands that other federal agencies do exactly as NMFS demands in interagency consultations, without regard to actual effects on listed species: "We just say we need it all".
How can NMFS get away with this? Certainly the other federal agencies won't stop them. As the Supreme Court recently explained, another agency "is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for 'any person' who knowingly 'takes' an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment." Bennett v. Spear, 520 U.S. 154 (1997). As a practical matter, NMFS can force other federal agencies to do whatever suits the desires of its utopian conservation biologists.
No public outrage arises, because no one knows what is really going on. It is a miracle is that a document like this got released at all. In their endless effort to uphold the more and more unreasonable decisions of our ever-expanding government, the federal courts have invented a special right for government agencies to withhold documents that would tend to embarrass them. (Ordinary citizens do not get this privilege.) The Supreme Court justifies this by declaring that "it would be impossible to have any frank discussions of legal or policy matters in writing if such writings were to be subjected to public scrutiny". EPA v. Mink, 410 U.S. 73 (1972).
Thus the "frank discussions" need not be revealed, only the documents that are carefully crafted to put the best light on agency decisions. And so the public sleeps on, imagining all the while that federal bureaucrats faithfully implement the law.
© James Buchal, November 19, 2001
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