Court Rejects Use of Habitat Surrogate In Everglades Project Biological Opinion
Posted in Litigation

In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take. 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

  • Robert D. Thornton

    Robert Thornton specializes in advising state and regional infrastructure authorities on environmental issues regarding large infrastructure projects.  He has successfully defended more than $12 billion in regional ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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