Federal judge upholds habitat protections for green sturgeon

Federal judge upholds habitat protections for green sturgeon

by Dan Bacher

Efforts to restore a prehistoric fish, the green sturgeon, received a big boost with a court ruling on Friday, November 30.

A federal judge upheld the designation of 8.6 million acres of critical habitat for the threatened green sturgeon in California, Oregon and Washington, including the sturgeon's only remaining spawning habitat in the Sacramento River.

U.S. District Judge Phyllis Hamilton of Oakland ruled that the National Marine Fisheries Service (NMFS) properly considered potential economic impacts before designating the waters as critical habitat for the fish in October 2009.

The Pacific Legal Foundation in March 2011 filed a lawsuit on behalf of developers and corporations - the Building Industry Association of the Bay Area and the Bay Planning Coalition - trying to eliminate protections NMFS had determined were essential to the conservation and recovery of the green sturgeon. The property rights foundation is known best in California for representing Westlands Water District and other government-subsidized corporate agribusiness interests in litigation to strip protections from Delta smelt, Central Valley salmon and southern resident killer whales (Orcas).

"The suit points out that regulators illegally set aside vast areas as green sturgeon habitat, up and down the West Coast and in California’s Central Valley, without even considering economic impacts in some areas and without properly balancing economic considerations, in violation of the Endangered Species Act (ESA)," according to Ted Hadzi-Antich, Pacific Legal Foundation attorney, when the litigation was launched. "In addition, the suit was brought because the government utterly failed to comply with the requirements of the National Environmental Policy Act (NEPA)." (http://www.pacificlegal.org/page.aspx?pid=1524)

However, Judge Hamilton said federal law requires government agencies to consider the economic effects of habitat designation, but does not require them to weigh those effects against species protection and "precludes court review of their ultimate decision."

The Center for Biological Diversity, which joined the federal government in defending green sturgeon habitat protection, praised Hamilton's decision. (http://www.biologicaldiversity.org/news/press_releases/2012/green-sturgeon-11-30-2012.html)

“Scientists have warned that if we don’t protect their most important habitat, southern green sturgeon will likely go extinct,” said Emily Jeffers, an attorney with the Center for Biological Diversity. “Designating critical habitat is a safety net that ensures the sturgeon’s only remaining spawning grounds are safe from development, dredging and water diversions.”

The green sturgeon is one of the most ancient fish species in the world, having existed for almost 200 million years. It can live as long as 70 years and reach 7.5 feet in length and 350 pounds in weight. The sturgeon was listed as “threatened” under the federal Endangered Species Act in 2006.

"In 2009 the Fisheries Service designated coastal and river areas in California, Oregon and Washington as critical habitat for the green sturgeon, the subject of the challenge that was defeated today," according to the Center. "The Center intervened on behalf of the species in order to ensure essential habitat protections remained in place; it has fought to protect green sturgeon since 2001, when it submitted a petition to protect the species under the Endangered Species Act (ESA)."

The ESA requires the Fisheries Service to designate critical habitat for a species once it is listed as threatened or endangered, according to the Center. Federal agencies must ensure that any actions they authorize, fund or carry out do not destroy critical habitat. Studies have shown that species with designated critical habitat are more than twice as likely to be recovering than those without.

The Center said those protections are particularly important in the Sacramento River, where fewer than 50 spawning pairs remained in 2006.

“The green sturgeon needs all the help it can get,” emphasized Jeffers. “Today’s ruling gives this prehistoric fish a fighting chance at recovery.”

The court ruling is not expected to impact recreational or commercial fisheries, since recreational anglers are already prohibited from targeting or taking green sturgeon in California waters while commercial fishing for both green and white sturgeon has been prohibited for over 100 years. However, even when the more abundant white sturgeon rose to their historic high of an estimated 144,000 legal-sized fish in the Bay-Delta estuary in 1997 and the take of green sturgeon was still allowed, green sturgeon were very rare in the catches.

California anglers haven't historically targeted green sturgeon because their meat, unlike that of the white sturgeon, is considered poor table fare.

Green sturgeon habitat in California includes the Sacramento and lower Feather and Yuba rivers, the Sacramento-San Joaquin Delta and San Francisco, San Pablo and Suisun bays, along with coastal waters. The fish spawns in the upper sections of rivers with gravel conditions similar to those that Chinook salmon and steelhead spawn in.

"Because sturgeon are highly vulnerable to overfishing, and fisheries for green sturgeon have depleted the stocks of large, old fish that are essential for spawning, the states of California, Oregon, and Washington restricted sport fishing of green sturgeon after federal protection was established," the Center said. "But the fish are still highly imperiled by extensive habitat loss."

Ironically, the same federal government that defended the green sturgeon critical habitat designation in court is now allied with the Brown administration in fast-tracking the Bay Delta Conservation Plan (BDCP) to build the peripheral tunnels. This project to export massive amounts of Delta water to corporate agribusiness and southern California will hasten the extinction of green sturgeon, Central Valley salmon, Delta and longfin smelt and other fish species, according to agency and independent scientists.