Absolutely Fishing Related: Congrats Bush Voters

Discussion in 'Fly Fishing Forum' started by ray helaers, Dec 1, 2004.

  1. BOBLAWLESS

    BOBLAWLESS New Member

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    Zen--don't get fed up--keep working. You and your generation must carry on the fight. We all have an unrelenting committment to the environment that will never end.

    Point: If habitat has been lost forever (the City of Vancouver, B.C. has paved over all the spawning areas that once made up a large part of the real estate of that city) and where it can be demonstrated over and over again that irreparable damage has been done to areas that at one time did have salmon but are now barren, then how we can turn our backs on ANY stream that, though there is no evidence of fish, might be rehabilitated so that fish would now be possible? In short, to fully recover the species, we would need to make advances, new habitat, to mitigate the losses that have occured over the years. Is this too difficult to understand?

    Point: If the destruction of habitat is to halt, then expansion of the economy must stop and in a capitalist society such as ours, if there is no expansion, then the economy falls like house of cards. We have depression, no new business, no stock market, no place to situtate the ever expanding population. Unfortunately, capitalism has within it the seeds of its own destruction. It requires land, labor and capital in ever increasing amounts to continue its expansion. But the land is now nearly gone and we haggle over each new zoning law, each new construction of a Walmart or what not.
    We chew ever deeper iinto the environment, wresting logs, oil, minerals, townsites and the list goes on and on.

    To halt this process seems impossible. And maybe it is. But until we wake up to the fact that we are but a cancer on the land, devouring more and more of what is left, I am afraid things don't look very good us, particularly you, my young friend Zen. You can't get fed up. You are in a fight for your very life.

    Bob, the Tired now--no more writing for today. :ray1:
     
  2. Calibeatis

    Calibeatis New Member

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    oh and cut down the forests to save the trees. Cant forget that one bawling:
     
  3. coonrad

    coonrad New Member

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    Ahh...yes. President Bush's "Healthy Forest Initiative"

    Using fear (forest fires are evil and will destroy the world) and Orwellian marketing (Healthy Forests). This is basically a massive giveaway of public forest land to the timber industry.

    Remember too, that we the taxpayers actually pay for the timber companies to come on to our public forests and log them. Apparently the logging companies don't have enough money to pay for their own logging operations?

    In all reality, I'm sure this forest initiative is just a legal technicality that will have no real impact on our forests (or fisheries)...right? :)
     
  4. Les Johnson

    Les Johnson Les Johnson

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    I don't feel that Bush's narrowly won victory is a mandate in any respect. Nearly half of the voters did not vote for him. To this end I hope that the other side of the aisle does not roll over, or try to "get along". I hope that nobody on this board is ready to quit on the environment and its creatures.
    Good Fishing,
    Les Johnson
     
  5. Bright Rivers

    Bright Rivers Member

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    In my opinion, the law does not support your statement. My reading of the ESA, the regulations supporting it, and the case law interpreting both, suggest that habitat outside of a CHD can have ESA protections whether it is baron of salmon or not. The federal agencies charged with designating CHDs understand this, and that is why they usually don’t bother to designate. A look at some of the evidence presented in the lawsuit against the National Marine Fisheries Service is illuminating.

    - From a memo in Interior Secretary Gale Norton’s office: “In 30 years of implementing the Endangered Species Act, the Service has found that the designation of critical habitat provides little additional protection to most listed species, while preventing the Service from using scarce conservation resources for activities with greater conservation benefits.”

    - From an NMFS intra-agency memorandum written by Donna Darm, acting NMFS Regional Administrator for the Northwest: “When we make critical habitat designations, we just designate everything as critical, without an analysis of how much habitat an evolutionary significant unit needs”(emphasis added).​

    The Endangered Species Act specifically requires that critical habitat designations be based on “the best available scientific and commercial data available.” NMFS has admitted that when they designated critical habitat for salmon and steelhead, they employed zero science and applied absolutely no analysis of habitat need. They just threw a blanket over a map. I think we can all agree on the need for salmon protection that uses better scientific data than that. In any case, the law requires it.

    But let’s assume for a moment that you are totally correct, and I’m an idiot (I know, you’re way ahead of me). Let’s assume that the proposed reduction in CHDs spells the end of serious salmon recovery efforts. Even still, I submit that the Bush administration did the proper thing, for the following reason.

    Last weeks CHD proposal comes as a result of federal lawsuits brought by private parties against the NMFS challenging that the government acted illegally when it designated the CHD’s. NMFS was caught with its pants down, unable to show any scientific basis for their designations of critical habitat. Do you really think that is the best way to recover our salmon runs? Are you really advocating that kind of environmental policy – the arbitrary designation of as much habitat as possible, so that eco-litigants can be empowered to file nuisance lawsuits in order to prevent lawful activity? There is a better way, and it begins by following the law, applying sound science, and giving due consideration to the economic impacts.

    Ray, despite making some good observations and arguments, I think your reading of the law is incorrect. But more importantly, it seems you are channeling your frustration in the wrong direction. It should be obvious to anyone following this issue that the federal agencies responsible for protecting our salmon have been fumbling the ball for years. If they don’t get their act together, the future of salmon and steelhead will be decided ad hoc by federal judges who know the law, but don’t know salmon. The fate of our salmon runs should not hang on who does the best job at manipulating the ESA, exploiting loopholes, and finessing the court system. But from what I can see, that is the battlefield environmentalists want to fight on.

    Though we disagree on this issue, I value your work very much and I respect your arguments. You are thinking like an environmental activist (reading the law in the light most favorable to your cause) and I am thinking like a lawyer (reading the law as I predict a judge will interpret it). Those two perspectives are leading us to differing conclusions. But I do not share Roper’s concern that such differences of perspective are a sure sign of the end.

    By the way, and for the record, you accused me of factual error earlier, correcting my assertion that it is the Secretary of the Interior who has authority to list species as endangered, and educating me to the fact that it is the Secretary of Commerce that does so. I can think of only two reasons you would take time to point that out. Either you are a person with an impeccable eye for detail and absolutely no capacity to accept error of even the slightest margin, or (as is more likely the case) you were subtly inferring to your readership that “See, this guy doesn’t really know what he’s talking about, but I do.” I will forgive the inference (only because it is likely spot on), but the correction itself was unjustified. The ESA indeed authorizes the Secretary of the Interior to list species as endangered or threatened. In the case of salmon and steelhead, the responsibility of deciding whether the Secretary of the Interior should list a species is delegated to the Secretary of Commerce, but only the Secretary of the Interior has the legal authority to actually list it.
     
  6. Kalm

    Kalm Member

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    PHP:
    The fate of our salmon runs should not hang on who does the best job at manipulating the ESAexploiting loopholes, and finessing the court system.  But from what I can seethat is the battlefield environmentalists want to fight on.[/COLOR]

    But with Republican control of all branches of government is there anywhere else for the environmentalists to turn?  I think most political battles over the next four years will be waged in the courts.  Why do you think there was such a clamour from the right to replace those "renegade judges who legislate from the bench".  Come on Bright Riversappreciate these tactics for what they are guerrilla litigation.  You'd resort to them too if you were outnumbered.
     
  7. chadk

    chadk Be the guide...

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    "Every year, thousands of anglers fly off to third world countries for the better fishing they offer. We once were a nation of plenty, but now we're a nation of debt."

    I have many friends in Canada who'd be upset at you referring to them as a 3rd world country :cool:

    Seriously, if you want to suggest that the majority of 3rd world countries are better managers of the environment than the USA or Canada, then I have a bridge in Arizona to sell you... ;)

    Also, if so many in the USA (the land of plenty) didn't have so much individual money that they have to invent ways to spend it - like fishing in 3rd world \ exotic locations, then I bet they wouldn't have the incentive to protect the relatively small areas they do manage. We have so much we can afford to protect their stuff too...
     
  8. alpinetrout

    alpinetrout Banned or Parked

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    I know you're joking and all, but I was born in Canada so if I want to call it third world I have every right to. :p

    Anyway, I think you missed my point. I wasn't saying that 3rd world countries are better at managing their resources, but to think that this country is rich in resources is no longer valid. "Rich" indicates excess, and we don't have excess. There simply isn't enough to go around if we were to exploit our resources for their monetary value. Being prosperous isn't just about having cash and having cash doesn't guarantee a prosperous future.

    150 years ago it was no problem for the small population of this country to exploit the land and reach a rather comfortable standard of living. Global trade was a non-issue, so labor unions helped the insulated American economy grow.

    Old habits die hard and now we're accustomed to this "standard" that is impossible to sustain. That's why people want to exploit every last fish, tree, or pile of rock if there's a dollar to be made. Then people complain that "they took our jobs!" when people in foreign countries with a more realistic grasp of reality do the work for more modest wages to support their equally modest lifestyles.

    Look at modern day Egypt. What most people would consider a third world country by today's standards was once a rich, prosperous country that teemed with natural resouces. Or take Iraq for example. Compared to America it is a relatively poor desert land, but this was the center of culture and trade in the ancient world. Nothing good lasts forever, and Americans are stupid to think they can't suffer the same fate. We've already passed the crest where we can no longer sustain our lifestyle and exploiting what we have to cling to "The American Dream" is only going to accelerate the process.
     
  9. chadk

    chadk Be the guide...

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    :beer2:
     
  10. ray helaers

    ray helaers New Member

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    BR,

    I have to press Kalm's question. What battlefield would you have us fight on when the Agencies charged with administering and enforcing the law violate and manipulate it for the benefit of particular stakeholders? The Center for Biological Diversity, the most litiguous organization in the country, has a very high record of success suing agencies and private entitites for violating the ESA and the Clean Water Act, suggesting some question as to just how lawful most of the activities suffering these nuisances really are.

    I agree and have agreed all along that designating ALL habitat ever occupied by salmon and/or steelhead as critical is probably not appropriate (though the Act clearly provides the "Secretary" authority to do so under "curcumstances" determined at his discretion; Sec 3(5)(C)). There likely is some reasonable middle ground, but it is not represented by the current proposal.

    We both obviously think the other's conclusions are wrong. I challenge you to find a case where the Section 9 take prohibitions could be successfully applied in an area where the listed species does not currently exist. I have yet to meet or hear of an environmental lawyer who would be willing to take the case. There is certainly language in the section that defines damage to habitats as proscribed, but that language has been interpreted by consensus and case law to apply ONLY when that habitat damage actually results in the death or injury of an actual individual of the relevant species. The courts have been convinced in the past by a preponderance of evidence that the injury or death must inevitably follow the habitat damage, but I can't see how you could make that case if the evidence shows that the species isn't even there. In the words of every lawyer I've ever spoken to, "we need a dead fish." Even when you have the dead fish, "take" cases are hard to bring and win. Witness the massive fish kills on the Klamath a year or so ago; they resulted in NO enforcement, fines, or injunctions. Section 9 is not the ironclad habitat-protection you make it out to be.

    As far as the Interior/Commerce thing goes. You know as well as I do that we're arguing semantics. Yes, the Sec of Int signs the ultimate determinations, but in the case of salmon and steelhead (and any other species the Sec of Comm has responsibility for), the Sec of Int is REQUIRED to implement Commerce's determinations; he has no veto or even consultive power (except in the case of removing or downgrading a listing; the SI must concur, but he cannot downgrade or delist by himself). The Sec of Commerce makes determinations for salmon and steelhead, period. I believe the audience for this particular tete a tete is just each other. We're trying to let the OTHER know that he may not know as much as he thinks he does, and I'll admit you sent me back to the Act itself to brush up.

    But whatever. You ignored my invitation to go fishing. Are you trying to hurt my feelings? I thought you wanted to make friends with liberal wack jobs. (If nothing else, you could report back that smarty-pants ray helaers couldn't fish his way out of a paper bag.) Remember, if I turn out to be right, we don't have all the time in the world. ;)
     
  11. Bright Rivers

    Bright Rivers Member

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    It’s a fair question, and I don’t mean to suggest that environmental activists shouldn’t sue when they see federal agencies not following the ESA. They should sue, and they should win. It’s the nuisance lawsuits that stick in my craw, and I can’t abide environmentalists who oppose responsible development (yes, there is such a thing) by filing lawsuits which, though they have no real legal merit, are quite effective at making otherwise lawful projects too cost prohibitive to pursue. That is short-term thinking which, though it may keep spaces greener in the near term, will foster such an adversarial climate that no lasting environmental benefit will result. Development will continue. The best way to protect the environment is for developers, activists, and legislators to work together. We’ve got a ways to go and every party is guilty.
    My intent has never been to argue for the strength of Section 9, but rather for the impotence of CHDs. If Section 9 is weak, fine. My point is simply that a CHDs “adverse modification” standard is no stronger than the regular “jeopardy” standard. You’re gonna need that dead fish either way.
    I’d love to fish with you, Ray. I’m just afraid that if you catch me alone without Google and Westlaw at my fingertips, you’ll realize I don’t know squat and never respond to another post of mine. Seriously, though, with three kids under 5, and a job that is demanding more of my time than is currently acceptable to me, I have a bout 7.2 minutes a day for fishing, and I spend all of that right here at WFF. Actual fishing doesn’t happen much for me these days (I’ve been twice since August). I try to not be one of those guys who says “I’ll call you” or “Let’s go fishing sometime” unless I really intend to follow up (I still owe Chadk a fishing trip, for example). But I do appreciate the gesture and have you at the top of the list of people from this site that I would love to wet a line with.
    :beer2:
     
  12. o mykiss

    o mykiss Active Member

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    Hey BR: I hate to bust your chops on this (well, maybe not), but your latest point is a FAR CRY from what you were saying in earlier posts. In fact, I would go so far as to say you're backpedaling. I think in earlier posts you referred to CHDs on at least a couple of occasions as "meaningless" and said that this proposed 80% reduction in critical habitat for listed PNW salmon/steelhead will have no impact on recovery (or words to that effect). Now you're acknowledging that, as Ray has argued, Section 9 protections may be "weak." Well, if Section 9 is weak when it comes to the question of how much protection it applies to areas that have not been designated as critical, then CHDs are NOT meaningless; in fact, they're damned important. Even though I've read no case law on this point, if some place is designated as critical habitat, there is no way that the only modifications that will be precluded are those that kills fish. In other words, I call BS on your statement that you "need a dead fish either way."
     
  13. Bright Rivers

    Bright Rivers Member

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    o mykiss? You still around? I thought it was just down to Ray and me.

    I don’t acknowledge that Section 9 is weak, or claim that it is strong. It is what it is. My only point is that the courts have said (and the federal agencies have acknowledged) that "because all actions that result in adverse modification of critical habitat will also result in a jeopardy decision, designation of critical habitat is not expected to result in any incremental restrictions on agency activities." – Division of Economics, U.S. Fish and Wildlife Service. And, additionally, as a CHD regulation itself states,"[c]ommon to both [the jeopardy standard and the adverse modification standard] is an appreciable detrimental effect on both survival and recovery of a listed species," and thus "actions satisfying the standard for adverse modification are nearly always found to also jeopardize the species concerned, and the existence of a critical habitat designation does not materially affect the outcome." – 60 Fed. Reg. 39,131 (July 22, 1997).

    I also don’t necessarily acknowledge that “you need a dead fish” (as Ray suggests all environmental attorneys agree on). But if you do need a dead fish outside of a CHD to show that an action will “jeopardize the continued existence of a listed species,” then it follows that you would also need one inside a CHD to show that the action will result in “adverse modification” to the habitat because, again, when you go to the regulations to define what “jeopardize” and “adverse modification” mean, you see they mean the same thing. That is, either way you have to prove that the action will result in fish dying. Ray is the one suggesting that you won’t be able to find an attorney to represent you unless you slap a dead fish on his desk.

    Now, up to this point, I don’t think I have backpedaled at all. But if you’d like to see some backpedaling, prepare yourself for an amazing feat. Because it’s Christmas, and I’m in the mood to give, I am going to make an astonishing concession. Are you ready? Here it is . . . CHDs do make a difference. Merry Christmas!

    The interesting thing is that I can say that without contradicting anything I have said up to this point (except the part about saying CHDs are “meaningless”). What I meant to say is that they are legally meaningless. But I will acknowledge (only because I haven’t gotten you anything else for Christmas) that they do have practical significance. Here is what I mean:

    It is true, what I have said all along, that the legal standard for stopping a federal action is identical whether you are inside or outside of a CHD. The difference, and I don’t think anyone has brought this up, is the burden of proof. Say Weyerhaueser wants to cut down some of their trees and needs a federal permit to haul the logs across public land. The bottom line is that they will be allowed to do so unless the action is going to appreciably impact the survival and recovery of a listed species, and that is true whether inside or outside a CHD. However, if the land is inside a CHD, I think the burden is on Weyerhauser to show that the action will not kill fish, but if outside a CHD, the burden will be on the environmental activist to prove the action will kill fish (which, presumably, is why you “need a dead fish”, as Ray suggests). So my claim is true, that any action which is impermissible inside a CHD is already impermissible outside a CHD. BUT, because inside a CHD the burden is on the developer to show that the project won’t kill fish (and because it is more difficult to prove a negative than a positive), CHDs can make a real practical difference.

    No, don’t feel bad that you didn’t get me anything. After all, my concession is limited. Here is what I steadfastly maintain:
    1. CHDs offer no additional legal protection, other than shifting the burden of proof.
    2. The worst case scenario is that the CHD reduction sets salmon recovery back four years, because that’s when the CHDs were designated (and we’re still 20% ahead of even that);
    3. The Bush administration did the right thing, because the initial CHDs were established illegally, with no science, and were too broad.​
    As an aside, it should be noted that the courts have acknowledged that the results produced by this definition of “adverse modification” are clearly not consistent with the intent of the ESA. In other words, CHD’s are supposed to make a big difference, but because of the way the regulations are written (I’m talking about the 1986 FWS regs), a Critical Habitat designation has no legal significance. This is why I suggest that the way to make a difference is not to bitch about Bush and his administration's recent decision to follow the law, but instead, I suggest we follow the advice someone gave (a hundred or so posts ago) and contact the lawmakers, our representatives. Tell them to fix the ESA.

    Hopefully, that’s good enough for you. This thread has caused me to go way over my allotted 7.2 minutes a day. Now I’ll have to work tonight and won’t get to see my kids. Hope you’re happy! ;)
     
  14. Kent Lufkin

    Kent Lufkin Remember when you could remember everything?

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    What with all the time you've put in to this tread BR, you must be down to like 25 or 26 billable hours per day, eh? So much for buying more income property this year :-D

    K
     
  15. o mykiss

    o mykiss Active Member

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    BR, that will have to do, I guess. But, on your third point, I'm not convinced yet that NOAA has relied on the best available science to come up with their proposal. I concede it may be more than what NOAA relied on for the original designation, but I'm not all that sanguine that it's as could as it could (or should) be.

    Merry Christmas back at you.
     
  16. Sloan Craven

    Sloan Craven Active Member

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    Fish rally on Monday June 6th at the Quality Inn in Clarkston. Very important. 7am. We need a big turnout as several representatives are working to keep the dams. See the post.
    Sloan C
     

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