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Feds to reconsider critical habitat for 2 fish

Spikedace, loach minnow may get bigger set-aside area

ALBUQUERQUE, N.M. — A federal judge has ruled the U.S. Fish and Wildlife Service can reconsider the designation of several hundred miles of riverbed in New Mexico and Arizona as critical habitat for two threatened fish species.

The agency’s original habitat designation for the spikedace and loach minnow will remain in place while federal biologists determine whether the fish need more habitat set aside under a ruling filed Tuesday by Senior U.S. District Judge John Conway.

Embroiled in litigation, the Fish and Wildlife Service filed a motion earlier this year seeking to take a new look at the species’ habitat needs.

The agency cited a Department of Interior inspector general’s report that found potential political interference by a former deputy assistant Interior secretary, Julie MacDonald. She resigned in 2007 after the inspector general concluded she pressured federal scientists to alter findings on certain matters before the Fish and Wildlife Service.

In his ruling, Conway discussed the report, which states that MacDonald selected one of several potential critical habitat designations for the two fish and wanted to make the area set aside for the species “as small as possible.”

“Upon examination of the portion of the IG report relevant to this case, it appears that the problem with the existing final rule is more likely that its designation of critical habitat was not expansive enough,” Conway said.

It was not immediately clear when the Fish and Wildlife Service would begin reviewing the critical habitat designation for the fish. An agency spokesman did not return phone messages seeking comment.

A coalition of counties in the two states and the New Mexico Cattle Growers’ Association had sued over the original habitat designation, saying the Fish and Wildlife Service overstepped its bounds and failed to adhere to requirements of the Endangered Species Act in setting aside the critical habitat.

The groups argued that the original designation should be vacated while the agency reconsiders the matter.

The agency and conservationists argued that the fish needed the protections afforded by critical habitat until the agency makes a final decision.

Noah Greenwald of the Center for Biological Diversity said nonnative species are a big threat to the fish as well as stream degradation due to grazing and water withdrawal.

“Really, the whole aquatic fauna of the Southwest is headed toward extinction,” he said.

The spikedace and loach minnow have been eliminated from more than 80 percent of their historic ranges in Arizona and New Mexico. They were once common throughout much of the Verde, Salt, San Pedro and Gila rivers.

The counties and the cattle growers had argued that restrictions stemming from the critical habitat designation prohibited landowners from making improvements on their property and put them at risk for flooding.

The Pacific Legal Foundation, which filed the action on behalf of the counties, said Fish and Wildlife ignored its duty to consider the economic impact of the designation.

But Conway ruled that it would be “least disruptive” to allow the existing habitat designation to remain in effect pending the Fish and Wildlife Service review.

Damien Schiff, an attorney with the Pacific Legal Foundation, said Wednesday his clients may consider filing a motion asking the judge to reconsider his dismissal of their claims.

“The best case scenario at the end of the remand period is a designation that retains the basic contours of the current designation, that is, things don’t worsen any further for our clients,” he said. “Worse case scenario is that the designation on remand becomes much larger, in which case the injuries that our clients are suffering just become worse.”


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