r4pressrelease

THE UNITED STATES JOINS NATIONAL AUDUBON SOCIETY TO
TAKE LEGAL ACTION TO PROTECT TINY SPARROW FROM EXTINCTION

The Department of Justice, on behalf of the U.S. Fish and Wildlife Service is seeking an immediate injunction in U.S. District Court for the Southern District of Florida to prevent the likely extirpation of a population of the tiny Florida grasshopper sparrow in one of the bird's few remaining habitats. An emergency motion to intervene in a lawsuit filed by the National Audubon Society was filed on behalf of the Service by the Department of Justice. The suit names three private landowners, Haynes Williams of 101 Ranch, Michael Powell, and Steve Powell of Tiger Cattle Company, as defendants and the Service joins Audubon in asking the court to enjoin the defendants from "taking" the endangered bird in violation of Section 9 of the Endangered Species Act.

The motion to intervene centers on actions by the defendants that altered historic drainage patterns of water on the National Audubon Society's Ordway-Whittell Kissimmee Prairie Sanctuary in Okeechobee County, Florida, and caused harm or will cause harm to the sparrow. The sanctuary is home to one of six remaining populations of the songbird, and the only population found on private land.

The Endangered Species Act defines "take" to include harming an endangered species. "Harm" is further defined as an act that would actually kill or injure the species and includes habitat modification or degradation that significantly impairs essential behavior patterns, including breeding, feeding or sheltering.

"The seeking of a legal remedy to this situation is a last-ditch effort to save this population of the highly endangered bird, " said the Service's Southeast Regional Director Sam D. Hamilton. "From what we can tell, there is only one breeding pair of this bird left in the sanctuary. We have exhausted every other avenue for working with the defendants and with the South Florida Water Management District to ensure that the grasshopper sparrow has favorable conditions for nesting during this year's breeding season, which is clearly a 'do or die' year. We cannot sit by and allow this bird to go the way of the dusky seaside sparrow when there is still a possibility, with landowner cooperation, that the extinction can be prevented," he said.

The Florida grasshopper sparrow, a nonmigratory bird that gets its name from the insect-like quality of its song, lives in dry prairie only in South Florida. The 5-inch long bird builds its nest of fine grasses in small, excavated depressions on the ground. Only about 300 breeding pairs of the bird remain in South Florida, most of them on public lands. The dramatic decline in the number of breeding pairs found in the Kissimmee Prairie Sanctuary, from 16 in 1993 to one pair today, is due to human disruption of natural water flows, combined with higher-than-average rainfall.

State, private and other federal entities including the Fish and Wildlife Service have worked for 3 years to identify potential solutions to the water flow problem, but the parties have been unable to reach consensus on a course of action.

Historically, water flowed south and west from the sanctuary into tributaries of the Kissimmee River. The southern border of the sanctuary lies on an earthen dike, built in the 1850s during the Third Seminole War and known locally as Military Grade. Until recently, water flowed south through culverts in Military Grade; and in exceptionally wet periods, water also flowed over the dike.

Over a 15-year-period, the defendants in the complaint have raised the elevation of Military Grade and removed or restricted water flows through the culverts in an effort to block water from flowing onto their lands. The result has been an impoundment of abnormally high levels of water on the sanctuary. The extended wet conditions within the dry prairie habitat have led to the precipitous drop in the sparrow population.

The Department of Justice, on behalf of the Service, is asking the court to provide protection for the bird in three stages: a temporary restraining order that would immediately prevent further impounding of the water on the sanctuary and provide more favorable conditions for the breeding season now underway; a preliminary injunction that would extend those favorable conditions through the life of the lawsuit; and permanent relief that would ensure long-term measures are put into place to prevent a recurrence of the high water levels from human actions in the future.

"The similarity of the situation facing the grasshopper sparrow to that of the Cape Sable seaside sparrow in the Everglades reinforces the urgency of our taking action now to protect these birds," said Regional Director Hamilton. "We humans have within our capability the knowledge and creativity to solve our problems in a way that protects our wildlife resources for enjoyment by present and future generations of Americans. Extinction is too high a price to pay for inaction," he said.

The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting, and enhancing fish and wildlife and their habitats for the continuing benefit of the American people. The Service manages more than 94 million acres of land and water consisting of 512 national wildlife refuges, 65 national fish hatcheries, 38 wetland management districts with waterfowl production areas, and 50 wildlife coordination areas.

The agency also enforces Federal wildlife laws, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat, such as wetlands, administers the Endangered Species Act, and helps foreign governments with their conservation efforts.

Attachment to Release

BACKGROUND INFORMATION -- FLORIDA GRASSHOPPER SPARROW

ABOUT THE BIRD AND ITS HABITAT

Florida grasshopper sparrow (Ammodramus savannarum floridanus).
Gets name from its song that has insect-like quality.
Small sparrow that only occurs in south Florida.
Sparrows only live for about 3 years.
Only 6 populations, with a cumulative total of 300 breeding pair, remain in south Florida; 5 occur on public lands, 1 on private land (Audubon's Ordway-Whittell Kissimmee Prairie Sanctuary).
Lives in habitat known as the dry prairie, characterized as a treeless, topographically flat grassland.
Dry prairies require frequent fire to suppress invasion of shrubs and trees.
As the name implies, dry prairies remain dry throughout much of the year; however, during the summer wet season, standing water may accumulate for short periods of time.
Sparrows build nests in small excavated depressions on the ground. Nests are made of fine grasses.
Sparrows do not migrate, stay in same area for entire life.
Listed as an endangered species in July 1986 due to habitat loss from conversion of natural habitat to improved pasture.

SEQUENCE OF EVENTS

Since the early 1980s, Ordway-Whittell Kissimmee Prairie Sanctuary staff and adjacent landowners have been negotiating to resolve hydrological problems related to water flows on their lands.
In 1994, the State of Florida's South Florida Water Management District enters into negotiations regarding resolution of hydrological problems.
In 1996, the Fish and Wildlife Service provides the South Florida Water Management District written notification that existing water conditions are not favorable for grasshopper sparrow and encourages the District to resolve problem. No legal action pursued by Fish and Wildlife Service at this time.
In late January 1998, Sanctuary staff indicate that previous 3 years of negotiations have been unsuccessful and that conditions are not favorable for nesting in 1998. Audubon requests Fish and Wildlife Service intervention.
In early February 1998, Fish and Wildlife Service visits Sanctuary to review conditions. Historical nesting sites are flooded at this time.
In late February and early March 1998, the Fish and Wildlife Service notifies four landowners (including Audubon) that alterations to water control structures and raising of Military Grade may violate Endangered Species Act. Letters request resolution to ensure successful nesting during 1998 breeding season.
Fish and Wildlife Service attends March 4, 1998, meeting convened by the South Florida Water Management District. Attempts to reach consensus on resolution to hydrological problems not achieved.
Fish and Wildlife Service attends March 12, 1998, meeting of the Governing Board of the South Florida Water Management District. Encourages Board to take immediate actions to resolve hydrological problems. Governing Board directs Water Management District to expeditiously reach solution.
Fish and Wildlife Service attends March 13, 1998, meeting with Water Management District and landowners to once again attempt to reach consensus on resolution. Several alternatives explored over the next several weeks.
April 1, 1998, Water Management District develops two Emergency Orders that would implement resolution under emergency authority. Requires landowners provide specific details about proposed resolution by April 10, 1998. Landowners provide information, but four landowners file petitions against Emergency Orders. These petitions effectively block implementation of hydrological restoration until administrative review completed.
April 21, 1998, Dale Hall, Fish and Wildlife Service's Deputy Regional Director, Southeast Region; Charles Shockey, Assistant Section Chief, Wildlife and Marine Section, Department of Justice; John Marshall, trial attorney, Department of Justice (teleconference); John Ebersole, Department of the Interior, Solicitor's Office; and staff of the Fish and Wildlife Service's South Florida Field Office meet with South Florida Water Management staff and council to discuss any remaining alternatives and possibility of legal action. Water Management District proposes new alternative to pump water west from sparrow nesting habitat.
April 24, 1998, Fish and Wildlife Service provides letter to South Florida Water Management District supporting efforts to restore grasshopper sparrow nesting habitat via pumping and commits to assist in efforts to notify the U.S. Army Corps of Engineers and Florida Department of Environmental Protection.
April 30, 1998, Department of Justice sends affected landowners letter and draft Complaint for Temporary Restraining Order, Preliminary and Permanent Injunctive Relief. DOJ's letter indicates that a remedy to impacts to nesting sparrows must be provided at May 5, 1998, public meeting; and that if no remedy is presented, the United States Government may pursue legal action and ask a Federal court to impose protections for the sparrow under Federal law.
May 4, South Florida Water Management District provides Fish and Wildlife Service written notification that pumping alternative is not feasible.
May 5, 1998, South Florida Water Management District holds public meeting for all affected landowners to provide opportunity for landowners to submit resolution to problem. Department of Justice attends meeting. Department of Justice indicates little progress made and no indication that necessary measures will be taken to protect nesting sparrows.
May 12, 1998, National Audubon Society files a complaint in U.S. District Court seeking injunctive relief to protect the grasshopper sparrow.
May 13, 1998, Department of Justice moves to intervene on an emergency basis on behalf the Fish and Wildlife Service to also seek immediate injunctive relief to protect the grasshopper sparrow.

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