Saturday, April 09, 2011

PLF sues over elderberry beetle

From the Pacific Legal Foundation:

Sacramento, CA; April 8, 2011: Attorneys with Pacific Legal Foundation today filed a lawsuit asking that the U.S. Fish & Wildlife Service (FWS) be ordered to start the process of dropping the valley elderberry longhorn beetle (VELB) from the U.S. Endangered Species Act list.

Filed in federal court in Sacramento, the lawsuit aims to compel FWS to take the first step toward delisting – i.e., issuing a "finding" on whether to move forward with the delisting process. A study by FWS several years ago indicated the beetle is not threatened, but FWS never followed up with a finding based on that study, so the delisting process has never gotten started. The case is North Sacramento Land Company v. Salazar.

Donor-supported Pacific Legal Foundation is the leading legal watchdog for limited government, property rights, and a balanced approach to environmental regulations. In this lawsuit, PLF attorneys represent – free of charge – a coalition of California landowners, businesses, farmers, and flood-control agencies harmed by unnecessary and unjustified ESA regulation of the VELB.

Plaintiffs include Levee District 1, Reclamation District 784, Butte County Farm Bureau, Solano County Farm Bureau, Yolo County Farm Bureau, Sacramento Valley Landowners Association, and North Sacramento Land Company.

Federal officials have stalled on their own recommendation to delist the VELB
and they failed to respond to a VELB delisting petition last year

These organizations – and others – petitioned FWS last year, asking it to issue a finding on the VELB. But it never responded – in spite of ESA’s requirement for a response within 90 days.

The VELB is found in California’s Central Valley, from southern Shasta County south to Kern County. In Sacramento, "critical habitat" designations include a zone in Sacramento between the Western Pacific railroad tracks and Commerce Circle, and areas along the south bank of the American River.

Although the VELB has been listed as "threatened" under the federal Endangered Species Act since 1980, in 2006 FWS completed a review as part of a settlement agreement in a case brought by PLF attorneys. It found the VELB should be taken off the ESA list. However, no action ensued. The FWS also has failed to respond to a petition, asking for the delisting process to begin, submitted last September by PLF attorneys for a broad coalition of farming organizations, flood-control districts, landowners, and businesses.

"This lawsuit is necessary to stop the federal government from stalling any longer in taking action on its own scientific recommendations with regard to the VELB," said PLF attorney Brandon Middleton. "The federal government is harming businesses, farmers, and the cause of economic recovery by keeping this species on the ESA list when it doesn’t need to be. The general public, and the interests of taxpayers, are also at risk, because costly, unjustified VELB mitigation rules impose major costs on flood control and reclamation agencies charged with building and maintaining levees."

The unjustified VELB listing complicates flood protection

"The federal government’s regulations for the VELB are imposing costly burdens on agencies responsible for flood control and drainage activities within the Sacramento Valley and Central California," said Middleton. "These agencies are required to divert scarce resources to provide ‘mitigation’ when their work impinges on this beetle’s habitat. So, by failing to drop the unjustified ESA listing of the beetle, the federal government is creating difficulties for the agencies charged with protecting us from flooding – and imposing additional burdens on taxpayers."

For instance, Yuba County’s Reclamation District 784 had to pay hundreds of thousands of dollars for VELB "mitigation," for levee work outside of Marysville, and the permit process took a year.

Likewise, PLF has been told that the American River Flood Control District has a policy of not touching elderberry bushes with bases larger that one inch in diameter, on or around its levees.

In addition, in the Yuba County area, levee repairs reportedly were delayed more than six years at one point, because of concerns about VELB habitat. A VELB mitigation pond was dug near a levee in Arboga, and Rep. Wally Herger, R-Marysville, argued that it helped cause the levee’s failure in 1997.

VELB listing’s impact on the economy: harming landowners, farmers, and job creation

"Federal regulators ought to take pains to make sure their environmental rules are reasonable in the light of science," said Middleton. "Any unjustified rules must be pruned back so they don’t stifle economic recovery. Instead, the U.S. Fish and Wildlife Service is actively hurting the economy – putting job-creating projects on the endangered list – by keeping its unjustified VELB regulations on the books."

Bob Slobe is a prime example of a business person who is blocked from proceeding with job-creating land use plans. Slobe’s North Sacramento Land Company owns property adjacent to American River Parkway and California Route 160 in Sacramento. The land is zoned for offices which he hopes to build. "But Bob Slobe can’t use his property because the federal government has been stalling on withdrawing its unjustified VELB listing," Middleton continued. "Mr. Slobe is prohibited from disturbing bushes where beetles live – unless he pays a massive sum of money to pay for relocation of the bushes to other property."

Over the years, Slobe’s parcel – vacant because of the federal VELB rules – has become a dumping ground and even camping ground for trespassers. Despite Slobe’s aggressive and continuous work to clean up the property, abandoned cars and bicycles, stolen copper wire, and dangerous waste, such as syringes, all turn up on the land.

Another example of problems for landowners and the larger public created by the VELB listing: Dubious pesticide restrictions – with potential economic harm for farmers and other landowners – were imposed because the listing. Last year, for instance, EPA entered into a settlement with environmental groups that restricts use of numerous pesticides in VELB habitat areas.

"The VELB listing distorts public policy and puts obstacles in the way of positive, productive use of private land," said Middleton. "In a real sense, everybody is hurt by this listing – and not even the beetle is really helped by it, because the government’s own science report says the beetle is not threatened or endangered. By failing to act on its own scientific findings, the Fish and Wildlife Service is failing in its duty to taxpayers, businesses, and the public at large. This is why we have no choice but to take the agency to court."

Plaintiffs: Farm groups, landowners, and water-related agencies harmed
by unnecessary regulations

In filing suit, PLF attorneys represent a number of organizations that are harmed, or have members who are harmed by, the continued, unnecessary classification of the beetle as "threatened," even when the federal government’s own study has concluded that the listing is unwarranted. The plaintiffs include:

Levee District 1 and Reclamation District 784 are among the agencies responsible for flood control and drainage activities within the Sacramento Valley. In recent years, the districts have spent significant amounts of money and labor in order to provide mitigation when their operations have impacts on the beetle and its habitat. Because of the beetle’s status as a threatened species, the districts are prevented from fully devoting their limited resources to their core missions of flood control, drainage, and irrigation management.

Sacramento Valley Landowners Association is a nonprofit organization of farmers and ranchers throughout California’s Sacramento Valley. SVLA members own, manage, or enjoy properties inhabited by or near the beetle and beetle habitat. Improper restrictions placed on land and water use due to the listing of the beetle as a threatened species have significant impacts on the ability of these individuals not only to continue to enjoy California’s wildlife and natural environment, but also their ability to sustain their livelihoods.

Butte County Farm Bureau is a nonprofit organization of farmers and ranchers throughout Butte County.

Solano County Farm Bureau is a nonprofit organization of farmers and ranchers throughout Solano County.

Yolo County Farm Bureau is a nonprofit organization of farmers and ranchers throughout Yolo County.

North Sacramento Land Company owns property adjacent to the American River Parkway and the California State Route 160 in Sacramento. For years, North Sacramento Land Company has desired to develop this property into commercial office space. However, the company is unable to develop this parcel due to its classification as critical habitat for the beetle. Simultaneously, the company incurs substantial maintenance and oversight costs in order to ensure that trespassers do not adversely affect beetle habitat within the parcel and subject the company to potential Endangered Species Act liability.

The lawsuit, titled North Sacramento Land Company v. Salazar, has been filed in the U.S. District Court for the Eastern District of California. The complaint may be found at Pacific Legal Foundation’s website:

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