On Thursday, January 18, 2001, the Alabama-Tombigbee Rivers Coalition (Coalition) filed suit in the Northern District of the Federal Court in Birmingham to overturn the May 5, 2000 listing by the US Fish and Wildlife Service (FWS) of the Alabama Sturgeon as an endangered species. The suit, brought against the Secretary of Interior, Bruce Babbitt, and the FWS, claimed the FWS violated the Endangered Species Act (ESA), the Administrative Procedures Act, and the US Constitution during the listing process and in the final decision.
Update: The Department of Interior and the US Fish and Wildlife Service responded to the ATRC suit on March 19, 2001. As expected, their answer to each point in the suit was to deny the allegation or that they did not have enough information to make an adequate response. A court-ordered conference between the Coalition and the US Department of Justice on May 1 failed to resolve any of the issues. Court filings are continuing in what may be a protracted battle to inject some semblance of balance into the Endangered Species Act.
May 24, 2002: The Coalition filed a petition for summary judgment in the Northern District of the US Federal Court in Birmingham on April 16, 2002. Filing an amicus curiae (i.e., Friend of the Court) in support of the Coalition was the Pacific Legal Foundation, a national public interst free enterprise legal group headquartered in Sacramento, California. On May 21, the US government responded to the summary judgment petition , but did not offer any new positions or information. Still, the Coalition has until June 7 to file its own comments on the US response.
December 1, 2002: The Alabama-Tombigbee Rivers Coalition appealed to the 11th Circuit Court of Appeals to overturn a ruling by the Northern Alabama Federal District Court that the Coalition did not have legal standing in a suit to remove the Alabama Sturgeon from the endangered species list. Without commenting on the substance of the Coalition’s case, Judge Lynwood Smith chose to ignore years of legal casework in which the Coalition demonstrated strong legal standing in matters affecting the waterways of Alabama.
The federal government filed a response to the appeal on October 24. In turn, on November 7, the Coalition filed its comments on the federal response, arguing that it not only has legal standing, but economic, environmental, and scientific interest as well.
If the 11th Circuit Court upholds the Coalition appeal, then the case reverts to the Northern District for disposition.
The Coalition consists of businesses, agencies, and interest groups that seek balanced and reasonable solutions to environmental issues affecting the economic welfare of the Mobile River Basin. CARIA has been a strong supporter of the Coalition in the fight against the listing of the Alabama sturgeon since the issue first surfaced in 1993.
The Coalition cited evidence that FWS violated the ESA by not using the “best science available” in the final decision, by failing to identify a critical habitat, and by ignoring the work already done by the State of Alabama to both protect and propagate the fish. FWS also violated the Administrative Procedures Act by publicly making statements that clearly showed they had already made up their minds about the science well before all the evidence was in. FWS also violated the US Constitution by attempting to interfere with and influence the work of FWS scientists who were doing an independent genetics analysis of sturgeon from both the Alabama River and the Mississippi River.
The suit goes on to say that, if the Court deems that FWS did indeed prove that the Alabama sturgeon is a distinct and separate species, then FWS violated the interstate commerce provision of the US Constitution by applying the ESA to a fish that is found solely within the State of Alabama. The State is denied due process in applying its own laws regarding water resource management, riparian rights, and environmental protection.
In addition to the legal and scientific bases for the suit, CARIA thinks the listing decision does not meet the test of reason and practicality. FWS officials claim the listing was done to preserve the “genetic diversity” of the Alabama sturgeon, a claim that loses its reason in light of findings by the FWS’s own scientists that sturgeons from the Alabama River are genetically identical to the abundant shovelnose sturgeon in the Mississippi River. Other geneticists had previously made the same finding. The listing decision was based on opinions of biologists who see taxonomic (physical) differences between the two fish, differences that other scientists dispute as being significant enough to make the two species separate. Genetics analysis is a much more exact science than biological opinion, yet the FWS in this case proclaimed genetics inferior to biological opinion. Based on the “best science available,” what is more reasonable?
The listing decision is impractical because any recovery plan based on propagation of sturgeon found only in the Alabama River will require a significant amount of federal money, perhaps millions of dollars. And that money will probably not be available until a recovery plan is approved, which may be years away. Even then, the funding requirement will have to compete for priority against hundreds of other endangered or threatened species currently on the ESA list.
What is more practical? To spend millions of dollars on an effort to catch, propagate, and release “Alabama sturgeon” into the Alabama River or to repopulate the Alabama River with identical fish from the Mississippi River? The second option does not yet have a price tag, but odds are good it won’t be in the millions. A transshipment of even five adult male and five adult female sturgeon from the Mississippi River to the Alabama River would most likely result in a better repopulating effort than ten years of an Alabama sturgeon recovery plan, which, based on the experience of the last five years, offers no guarantee of success.
There is a third option: Let sturgeon in the Alabama River fade away. We can say that because the same fish is found in the Mississippi River by the millions. CARIA fully supports reasonable and practical solutions to the question of endangered and threatened species; but when the evidence shows no need for a listing, thus, no need for a recovery plan, then let’s get reasonable and practical. The Alabama sturgeon is just such a case.
Pressure of lawsuits by environmental groups seeking to list the sturgeon played a role in the listing decision, essentially goading FWS into the listing. These groups have an agenda, and it’s not to save Alabama sturgeon. If their goal was to save sturgeon, then they would have supported the 1996 Sturgeon Conservation Plan (SCP) developed jointly by the FWS, the US Army Corps of Engineers, the State of Alabama, and the Coalition or the Candidate Conservation Agreement (CCA) drawn up in February 2000 by those same parties.
The objective of both the SCP and the CCA was to propagate sturgeon in the Marion Fish Hatchery and release them back into the Alabama River. FWS officials agreed the approach called for in both programs was the best chance sturgeon in the Alabama River had of surviving (assuming fish from the Alabama River only were used), primarily because the fish population in that river is so low, the fish’s natural reproductive rate can not offset its mortality rate. Environmental groups did not support these propagation efforts because neither effort promoted the environmentalists’ real agenda of closing down commercial waterways in Alabama and eventually eliminating as many dams as possible. We should note these groups have not offered any alternative or better solution to the issue at any time. Their only comment has been, without elaboration, that the proposals did not go far enough.
The Alabama sturgeon case is a classic example of environmental zealotry, of the federal government overreaching its authority and using a well-meaning, but flawed ESA to dictate control over an issue that has already been taken care of by the State of Alabama. It’s an example of federal waste in effort and resources, of the very reason the ESA needs amending. It is to combat just this sort of zealotry and federal intrusion on the waterways of the Mobile River Basin that the Alabama-Tombigbee Rivers Coalition was organized.