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The Voice for Manatees Since 1981

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The Voice for Manatees Since 1981 The Voice for Manatees Since 1981 Public Comments Processing Attn: Docket No. FWS-R4-ES-2015-0178 U.S. Fish and Wildlife Service Headquarters, MS: BPHC 5275 Leesburg Pike Falls Church, VA 22041-3804 April 7, 2016 Re: Comments on 12-Month Finding and Proposed Rule to Reclassify the West Indian Manatee from Endangered to Threatened under the Endangered Species Act. Dear Director Ashe: The US Fish and Wildlife Service (“Service” or “FWS”)’s 12-month finding and proposed rule to reclassify the West Indian Manatee from Endangered to Threatened1 contravenes the Endangered Species Act and implementing regulations and is an impermissible exercise of agency authority. The comments that follow are intended to supplement Save the Manatee Club (“SMC”)’s additional scientific and policy comments, as well as the comments submitted by counsel for SMC, Meyer Glitzenstein & Eubanks, LLP and joint comments of the over 11,000 supporters who signed on to SMC’s online petition, which was also submitted to the docket. SMC contends that the downlisting is premature and unwarranted at this time, and urges the Service to reconsider the proposed reclassification until such time as threats to manatees are controlled and the best available science warrants downlisting. Save the Manatee Club Save the Manatee Club is an award-winning national 501(c)(3) nonprofit, established in 1981 by singer and activist Jimmy Buffett and former US Senator Bob Graham. The organization represents 11,000 members and supporters throughout Florida and an additional 33,000 nationwide in efforts to protect endangered manatees and their aquatic habitat from threats posed by human activity, including habitat destruction and water quality degradation. It is with this mission in mind that we offer the following comments regarding the 12-month finding and notice of proposed rule to reclassify the West Indian Manatee from Endangered to Threatened (hereafter, “proposed rule,” “notice of proposed rulemaking”, or “NPRM”). The Proposed Rule The proposed rule is fatally flawed. The reclassification fails to comport with the plain language of the statute, does not demonstrate that threats to manatee survival are controlled or reduced, and does not rely on the best available scientific and commercial data. In particular, the Service fails to address increasing threats to habitat and inadequate existing regulatory mechanisms to protect the species, both within Florida and its wider Caribbean range. The Service impermissibly relies on synoptic survey counts instead of evaluating the five factors required by statute, and in so doing relies on the faulty assumption that existing threats will remain constant or diminish, though the best available scientific and commercial data indicate that the opposite is true. In particular, the Service’s failure to account for the imminent loss of artificial warm water habitat undermines the assumption that threats to habitat are controlled. Moreover, the recovery criteria laid out in the publicly reviewed Manatee Recovery Plan have not been met, a fact which the Service seems to dismiss out of hand. Lastly, if the Service proceeds with downlisting, it will be in derogation of its international obligations imposed under the Endangered Species Act. 500 N. Maitland Ave. • Maitland, FL 32751 • 407-539-0990 • Fax 407-539-0871 • 800-432-JOIN (5646) • www.savethemanatee.org !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1!81!Fed.!Reg.!1000!(Jan.!8,!2016).! Save the Manatee Club looks forward to a time when manatees have recovered to the point where they are no longer endangered, but that time has not arrived, and we question why the Service wasted valuable time and manpower resources pursuing downlisting when there remains a great deal of real work to do to ensure the manatee’s long-term survival. I. The plain language of the statute prohibits reclassification. Under the Endangered Species Act (ESA), the term “endangered” means “any species which is in danger of extinction throughout all or a significant portion of its range.”2 A “significant portion of its range” has been defined through case law to include viability throughout its historical range.3 a) “In danger of extinction” Manatees are in danger of extinction throughout their range. The International Union for the Conservation of Nature found that the West Indian manatee has a total population of less than 10,000 individuals,4 that figure is expected to decline at a rate of ten percent over the course of three generations due to habitat loss and other anthropogenic factors.5 The manatee is endangered throughout its range because threats to its survival are not controlled and are increasing. The West Indian manatee is extinct or functionally extinct in many areas of its former range.6 The purpose of the Endangered Species Act is to recover species.7 8 Recovery is not simply slowing or even halting an extinction spiral, but reestablishing and ensuring long-term protection for the animal throughout its historical range. Increasing habitat fragmentation and reduced genetic diversity indicate that full recovery of the West Indian manatee remains elusive. Little to no interbreeding among populations occurs as herds become more isolated, while increased anthropogenic threats jeopardize the manatee’s continued existence in 84% of its current range and in a much higher percentage of its historical range. Indeed, it is only in Puerto Rico, Honduras, French Guiana, and parts of Florida where the manatee population is thought to be stable.9 In its report during the public hearing on the proposed downlisting in Orlando, FL on February 20, 2016, the Service presented a tortured definition of “endangered” as meaning “on the brink of extinction,” based on “internal legal analyses.”10 Presumably this statement referred to the Service’s guidance memo, “Supplemental Explanation for the Legal Basis of the Department’s May 15, 2008 Determination of Threatened Status for Polar Bears”11 (hereafter “polar bear memo”). This internal memo is not binding and the Service need not feel itself hamstrung by past poor decision-making founded on political expediency. Moreover, because of its explicitly limited intended application, this document has not been subject to general public notice and comment12, as required by statute13, because it was drafted as part of the agency’s response to an unrelated legal case regarding the listing status of the polar bear. The memo explicitly notes that the term “in danger of extinction” depends on “the complexity of biological systems and processes, the diversity of the life histories of individual species, and differences in the amount and quality !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2!16!U.S.C.!§1532(6)!(emphasis!added).! 3!Defenders(of(Wildlife(v.(Norton,!239!F.!Supp!2d.!9!(D.D.C.!2002).! 4!The!FWS!estimate!oF!13,142!West!Indian!Manatees!worldwide,!a!count!which!the!Service!acknowledges!may!be!inaccurate!(in!some! cases!based!merely!on!the!personal!opinion!oF!local!experts,!81!Fed.!Reg.!at!1003!Table!1!FN1;!synoptic!surveys!on!which!Florida! counts!are!based!are!“not!considered!to!be!reliable!indicators,”!Id.!at!1006.),!is!not!significantly!greater!than!the!IUCN!estimate.! 5!81!Fed.!Reg.!at!1005.! 6!81!Fed.!Reg.!at!1002,!1005.!! 7!US!Fish!and!WildliFe!Service,!Endangered(Species(Act(Basics!(Jan.!2013).!!Exhibit!A.!! 8!See(also!FWS!Guidance!Interpretation!oF!‘in!danger!oF!extinction!under!the!ESA’!(Dec.!22,!2010)!at!7,!available!in!the!Service’s! Endangered!Species!Act!Document!Library!(hereafter!“Polar!Bear!Memo”),!Exhibit!B.! 9!81!Fed.!Reg.!at!1005.!! 10!SMC!has!requested!that!a!copy!oF!the!transcript!and!PowerPoint!presentation!For!this!hearing!be!placed!in!the!record,!and!in!the! alternative,!submitted!a!FOIA!request!on!March!9,!2016!requesting!the!same.!!SMC!hereby!requests!that!the!transcript!and! presentation,!when!they!are!available,!be!considered!a!part!of!the!Formal!Administrative!Record,!along!with!comments!submitted!at! that!hearing.! 11!Polar!Bear!Memo! 12!Id.!at!1.! 13!16!U.S.C.!1533(h)!(stating!that!the!agency!“shall!provide!to!the!public!notice!oF,!and!opportunity!to!submit!written!comments!on,!any! guideline”!used!in!the!implementation!oF!the!Endangered!Species!Act).! of data to inform individual listing determinations, [which are] contextual and fact-dependent,” and the general interpretation is “subject to modification with its application to the particular facts at issue.”14 The memo claims to be merely a description of the Service’s habitual policy, but there is no way to verify this assertion and nothing to say that the agency did not cherry-pick cases most favorable to its desired outcome in the polar bear listing determination. In formulating its theory with regard to the polar bear, the agency did not need or intend “to adopt independent, broad-based criteria for defining the statutory term ‘in danger of extinction’.”15 There is no reasonable reading of the Endangered Species Act that would allow an interpretation that a species must be so far gone (“on the brink”) as to be nearly functionally extinct. At every point, the ESA favors conservation and a precautionary approach to species loss. It cannot be that the drafters intended the protections of the Act to only apply once a species is only hanging on to survival by a thread. However, even under the guidelines promulgated in the polar bear memo, the West Indian Manatee qualifies as endangered. According to the memo, “to be currently on the brink of extinction in the wild does
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