The following comments, which are attached in pdf format, are submitted by the
Center for Biological Diveristy in support of the Proposed Listing Rule for the
Chatham petrel (Pterodroma axillaris), Fiji petrel (Pterodroma macgillivrayi),
magenta petrel (Pterodroma magentae), Cook?s petrel (Pterodroma cookii),
Galapagos petrel (Pterodroma phaeopygia), and Heinroth?s shearwater (Puffinus
heinrothi).
To Whom It May Concern:
The following comments are submitted on behalf of the Center for Biological
Diversity (?Center?) regarding the U.S. Fish and Wildlife Service?s (?Service?)
proposal to list six avian species, the Chatham petrel (Pterodroma axillaris),
Fiji petrel (Pterodroma macgillivrayi), magenta petrel (Pterodroma magentae),
Cook?s petrel (Pterodroma cookii), Galapagos petrel (Pterodroma phaeopygia), and
Heinroth?s shearwater (Puffinus heinrothi) as either threatened or endangered,
pursuant to the Endangered Species Act (?ESA?). See Endangered and Threatened
Wildlife and Plants; Proposed Rule To List Six Foreign Bird Species Under the
Endangered Species Act, 72 Fed. Reg. 71298 (December 17, 2007).
A. ESA Listing History for the Six Birds
In November 1980, the International Council for Bird Preservation submitted a
petition to list 77 bird species, including 58 foreign species, as threatened or
endangered under the ESA. 46 Fed. Reg. 26464 (May 12, 1981). The Service
reported its ?12-month findings? on the petition some three years later, finding
that listing these 58 foreign bird species was ?warranted but precluded? by
other listing priorities. 49 Fed. Reg. 2485 (January 20, 1984). In making this
determination, the Service stated, ?Publication of a proposal to list these
species is planned during the present fiscal year (ending September 30, 1984).?
Id. However, more than six years passed before the Service actually listed any
of these species pursuant to the ESA. 55 Fed. Reg. 39858 (September 28, 1990)
(listing six species as endangered); 59 Fed. Reg. 14496 (March 28, 1994)
(proposing to list fifteen of the foreign bird species petitioned in 1980, but
concluding that the remaining birds from the 1980 petition were still warranted
but precluded); see also 50 Fed. Reg. 19,761 (May 10, 1985); 51 Fed. Reg. 996
(January 9, 1986); 53 Fed. Reg. 52,746 (December 29, 1988); 56 Fed. Reg. 58,664
(November 21, 1991).
In May 1991, the Service received a second petition from the International
Council for Bird Preservation that sought protection for an additional 53
foreign bird species. The Service issued its 12-month finding on the petition
in March 1994, which proposed listing for 15 species from the 1991 petition, and
concluded that listing the remaining species was ?warranted but precluded? by
other listing activities. 59 Fed. Reg. 14496 (March 28, 1994).
After March 1994, the Service made little headway regarding the status of the
species identified in the 1980 and 1991 petitions. As a result, the Center
submitted a letter in December 2002 to notify the Service that the Center
intended to sue the agency for failing to take actions to protect these species.
With no sign that the agency would comply with its statutory mandates, the
Center filed suit and subsequently negotiated a settlement with the Service,
whereby the Service agreed to submit new 12-month findings for the remaining
foreign bird species to the Federal Register by May 15, 2004.
The Service issued its findings on May 21, 2004, concluding that
?warranted-but-precluded findings remain appropriate for 51 species? and that
?seventeen species no longer warrant listing under the Act?.? Endangered and
Threatened Wildlife and Plants; Annual Notice of Findings on Resubmitted
Petitions for Foreign Species; Annual Description of Progress on Listing
Actions, 69 Fed. Reg. 29354, 29355. These seventeen species include eleven that
are now believed extinct, with at least five believed to have gone extinct while
their protection under the ESA was pending.
In the May 2004 findings, the Service proclaimed it would ?promptly prepare
listing proposals for the giant ibis (Pseudibis gigantean), black stilt
(Himantopus novaezelandiae), Gurney?s pitta (Pitta gurneyi), Socorro mockingbird
(Mimodes graysoni), and Caerulean paradise-flycatcher (Eutrichomyias rowleyi).
69 Fed. Reg. at 29372. However, not until 2 ? years later, and only after a
complaint was filed in federal court by the Center, did the Service actually act
and submit the proposed rule. Such extreme delay is contrary to the ESA?s
mandate for promptness. See 16 U.S.C. ? 1533 (b)(3)(B)(ii). Proposed listing
rules should be issued jointly with ?warranted? findings, not 30 months later.
See, e.g., Endangered and Threatened Wildlife and Plants; 12-Month Petition
Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened
Throughout Its Range, 72 Fed. Reg. 1064 (January 9, 2007) (issuing ?warranted?
finding and proposed listing rule for the polar bear jointly); Endangered And
Threatened Species; Proposed Endangered Status for North Pacific Right Whale, 71
Fed.Reg. 77694 (December 27, 2006) (issuing ?warranted? finding and proposed
listing rule for the North Pacific right whale jointly); Endangered and
Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To
Delist the Mexican Bobcat (Lynx Rufus Escuinapae), 70 Fed. Reg. 28895 (May 19,
2005) (issuing ?warranted? finding and proposed delisting rule jointly);
Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and
Proposed Rule To List the Tibetan Antelope as Endangered Throughout Its Range,
68 Fed.Reg. 57646 (October 6, 2003) (issuing ?warranted? finding and proposed
listing rule jointly).
In April of 2007, in response to another lawsuit filed by the Center, the
Service issued an updated finding regarding ?warranted but precluded? foreign
birds. As part of that finding, the six birds at issue here were found to
?warrant? listing under the ESA. Once again though, instead of issuing the
proposed rule concurrently with the finding, the Service delayed its publication
of the proposed rule, this time by 8 months.
The Service?s delay is contrary to the plain language, statutory structure and
legislative history of the ESA. As stated by Congress in 1982, ?[t]he
requirement that certain [ESA] findings be followed by ?prompt? publication in
the Federal Register does not authorize the Secretary to delay decisions or
actions. Use of the word ?prompt? is intended to account for the fact that the
exact timing of Federal Register notices are not within the control of the
Secretary.? H.R. Rep. No. 97-835, at 23-24 (1982) (Conf. Rep.), as reprinted in
1982 U.S.C.C.A.N. 2860, 2864-65. Moreover, when making a 12-month finding, the
FWS can make a ?warranted but precluded? finding only if ?the immediate proposal
. . . is precluded? by other listing actions. 16 U.S.C. ? 1533(b)(3)(B). In
other words, if the Service makes a ?warranted? finding, the agency must then
submit an ?immediate proposal? to list the species. Finally, the Service?s
delay significantly undermines the ESA?s section 4 listing timelines. Section 4
only permits 12 months for an initial finding, 16 U.S.C. ? 1533(b)(3)(B), and
another 12 months for the final determination. 16 U.S.C. ? 1533(b)(6)(A).
Therefore, during these times, the FWS should be completing its communications
with foreign governments and scientists. The ESA most certainly does not allow
for an additional 8 months to complete this process, especially when, as here,
the species have been unlawfully denied protections for many years under
?warranted but precluded? status. In short, once a species is found to warrant
listing, the proposal must be issued within the next Federal Register cycle, not
8 months later as occurred here.
B. ESA Protections for Foreign Species
ESA listing provides substantial benefits to foreign species. Indeed, an entire
section of the ESA is devoted to ?International Cooperation.? 16 U.S.C. ? 1537.
Section 8(a) of the ESA explicitly authorizes the President to provide
financial assistance for the development and management of programs in foreign
countries that the Service determines to be necessary or useful for the
conservation of species listed as endangered or threatened. Id. Section 8(a)
also explicitly authorizes the President to place ?terms and conditions as he
deems appropriate? on any financial assistance in order to ensure it is used for
conservation purposes. Id. Moreover, Sections 8(b) and 8(c) of the ESA
authorize the Service to encourage conservation programs for foreign endangered
species, and to provide assistance for such programs in the form of personnel
and the training of personnel. Id.
ESA benefits for foreign species extend well beyond Section 8. The ESA
restricts import and export of endangered and threatened species from the United
States as well as movement and sale in interstate or foreign commerce. In fact,
ESA listing provides protection in excess of that supplied by the Convention on
International Trade in Endangered Species of Wild Flora and Fauna (?CITES?).
See Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and
Proposed Rule To List the Tibetan Antelope as Endangered Throughout Its Range,
68 Fed. Reg. 57646, 57650 (October 6, 2003).
U.S. agencies, in their actions abroad and at home, must work to protect listed
foreign species. Section 2(c) of the ESA states that ?all Federal departments
and agencies shall seek to conserve endangered species and threatened species
and shall utilize their authorities in furtherance of [the conservation of
endangered species and threatened species].? 16 U.S.C. ? 1531(c). Moreover,
section 7 of the ESA places further restrictions on actions by U.S. agencies
abroad. Section 7 requires that ?[e]ach federal agency shall . . . insure that
any action authorized, funded, or carried out by such agency . . . is not likely
to jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of [critical]
habitat of such species.? 16 U.S.C. ? 1536(a)(2). Section 7 consultation is
required for ?any action [that] may affect listed species or critical habitat.?
50 C.F.R. ? 402.14. Agency ?action? is defined in the ESA?s implementing
regulations to include ?(c) the granting of licenses, contracts, leases,
easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or
indirectly causing modifications to the land, water, or air.? 50 C.F.R. ? 402.02.
The ESA also establishes general prohibitions that apply to all endangered
wildlife. These protections, pursuant to 50 CFR 17.21, in part make it illegal
for any person subject to the jurisdiction of the United States to ?take?
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to
attempt any of these); import or export; deliver, receive, carry, transport, or
ship in interstate or foreign commerce in the course of commercial activity; or
sell or offer for sale in interstate or foreign commerce any endangered wildlife
species. It is also illegal to possess, sell, deliver, carry, transport, or
ship any such wildlife that has been taken in violation of the ESA.
Finally, ESA listing provides greater public awareness for, and greater
recognition of, the status of the listed species which encourages and often
results in conservation actions by foreign, federal, state, and private agencies
and groups, and individuals. In other words, ESA listing puts pressure on
foreign governments to use any power that they have to conserve species and
their ecosystems.
All of the above protections are necessary to protect foreign species from
further decline but will not accrue until the listing process is complete.
Therefore, it is of utmost importance that final listing for the six birds take
place within the one year period prescribed by the ESA. See 16
U.S.C. ? 1533(b)(6)
C. ESA Protections for the Chatham petrel, Fiji petrel, magenta petrel, Cook?s
petrel, Galapagos petrel, and the Heinroth?s shearwater
The Service recognizes that the Chatham petrel, Fiji petrel, and magenta petrel
are all in grave danger of extinction. The Chatham petrel population ?is very
small, estimated at 800-1,000 birds . . . , and is showing a decreasing
population trend.? 72 Fed. Reg. at 71298. The Fiji petrel population is
likewise ?very small, estimated at less than 50 birds and is showing a
decreasing population trend,? and ?[t]he magenta petrel population is estimated
at 120 individuals with a decreasing trend.? Id. All three birds are listed as
Critically Endangered on the IUCN 2007 Redlist. See BirdLife International
2007. In: IUCN 2007. 2007 IUCN Red List of Threatened Species.
<www.iucnredlist.org>. Downloaded on 12 March 2008. Moreover, as the Service
points out, ?[o]nce a population is reduced below a certain number of
individuals, it tends to rapidly decline towards extinction.? 72 Fed. Reg. at
71302. Given the critically small population sizes of the Chatham petrel, Fiji
petrel, and magenta petrel, action on their behalf is urgently necessary if
these birds are to recover from the brink.
The Cook?s petrel, Galapagos petrel, and Heinroth?s shearwater also face a grave
future due to threats such as habitat loss, introduced species, oil and chemical
spills, and long-line fishing operations. Although these three birds do not
currently face dire straits like the Chatham petrel, Fiji petrel, and magenta
petrel, they nonetheless need immediate assistance if they are to fully recover
from their predicament.
The six birds at issue in this proposed listing rule are long overdue for ESA
protection. ESA listing can only help these birds by drawing attention to their
needs and providing much needed money and expertise to address the significant
threats they face. The Center urges the Service to complete the final rule in a
timely fashion, and certainly no later than December 17, 2008.
Sincerely,
Justin Augustine
Comment on FR Doc # E7-24347
This is comment on Proposed Rule
Endangered and Threatened Wildlife and Plants; Proposed Rule To List Six Foreign Bird Species Under the Endangered Species Act
View Comment
Attachments:
Comment on FR Doc # E7-24347
Title:
Comment on FR Doc # E7-24347
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