Miccosukee Tribe of Indians of Florida v. USA

May 5: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10799. The case involves what the Appeals Court says is one of the Corps of Engineers "unplanned environmental consequences” of its efforts to control the “river of grass” or the Everglades, of South Florida that flowed south from Lake Okeechobee to the Florida Bay. More specifically, the case involves the Cape Sable seaside sparrow (the sparrow) that lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels.

One of the sparrows subpopulations has decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps’ method of releasing water into the Everglades has been blamed for that decline. Also, at risk is the Everglade Snail Kite, a type of hawk, that was also listed as endangered in 1967 and received critical habitat designation in 1977. During a period of regional drought, Florida’s total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The problem, of managing the two habitats is that the kites prefer steady and moderate to low water levels above one of the control gates (S-12), while the sparrows prefer low water below the S-12 gates.

The Corps and the Fish & Wildlife Service, consult with each other on habitat management and when a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a “biological opinion” determining whether the action would jeopardize the species. Following the development of Corps plans and biological opinions the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging the Interim Plan.

The Court of Appeals ruled that, "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion."

Access the complete opinion (click here).