ELR Citation: ELR 20097
No(s). 08-10799 (11th Cir. May 5, 2009)

The Eleventh Circuit affirmed in part and reversed in part a lower court decision upholding the U.S. Fish and Wildlife Service's (FWS') approval of a protection plan for the Cape Sable seaside sparrow in the Everglades. The protection plan concerned the impact of certain gates within the Everglades on the sparrow. The sparrow prefers low water below the gates. However, another bird, the Everglade snail kite, prefers steady and moderate-to-low water levels above the gates at issue. Both birds are protected by the Endangered Species Act (ESA). A Native American tribe argued that the FWS' biological opinion failed to follow proper procedures and arrived at conclusions that are counter to the scientific data in the record. But the biological opinion considered all material facts. The court also rejected the tribe's argument that the FWS' incidental take statement improperly quantified incidental take in terms of habitat markers. However, the ESA does require that the incidental take statement contain an adequate trigger for reconsultation, and that a trigger must be expressed in population terms unless it is impractical to do so. The FWS failed to meet these requirements. So, while the court upheld FWS' conclusion that the kite will not be jeopardized by its sparrow-saving plan, it found that the incidental take statement must be modified or replaced to comply with the ESA.

[A related decision can be found at 37 ELR 20196.]