NMI sues US Fish and Wildlife over warbler

The CNMI government has sued the U.S. Fish and Wildlife Service over a dispute centering on an endangered species of birds in Marpi that is blocking the veterans cemetery project.

The government, acting at the request of the Department of Public Works, asked the U.S. District Court to issue a decision declaring as unlawful the condition being imposed by the U.S. Fish and Wildlife on the proposed cemetery project.

The government, through Assistant Attorney General Sean P. Lynch, asserted that the agency’s actions, findings, and conclusions are “arbitrary, capricious and an abuse of discretion.”

Lynch stated in the complaint that the Saipan Upland Mitigation Bank was established in January 1998, through enactment of Public Law 10-84.

The purposes of the bank was to protect wildlife resources, mitigate the negative impacts of commercial development on native wildlife and facilitate sustainable and rational commercial development, Lynch said.

The bank consists of 330 hectares of public land, encompassing substantially all of the Marpi Commonwealth Forest.

Lynch said that in February 2002, the Commonwealth and the U.S. Fish and Wildlife entered into a financing and management agreement for the bank.

The stated purpose of the agreement is to provide mitigation for eligible projects that will result in unavoidable impacts to endangered or threatened species on Saipan, he said.

The agreement creates 97 Nightingale Reed-Warbler credits. Each credit means the immediate protection of sufficient habitat to support two occupied male Nightingale Reed-Warbler territories in the bank on a pro rata basis, Lynch said.

Each Nightingale Reed-Warble credit is equivalent to approximately 3.4 hectares of land in the bank, he said.

On Sept. 14, 2004, the U.S. Department of Veterans Affairs requested a formal consultation with the U.S. Fish and Wildlife in regards to the proposed veterans and public cemetery to be located in Marpi.

A biological assessment was submitted with the request for formal consultation, which identified one pair of Nightingale Reed-Warblers that were likely to be adversely affected by the proposed project.

The Nightingale Reed-Warbler was listed as an endangered species on Dec. 2, 1970.

Issues were raised by the U.S. Fish and Wildlife regarding federal funding and oversight of the proposed project, since distinct portions of the project were funded by separate federal agencies.

The USDVA was providing funds for the veterans cemetery portion of the project, whereas the U.S. Department of the Interior, Office of Insular Affairs was providing funds for the public cemetery portion of the project.

Lynch said that in February 2005, a decision was made by all involved parties to administratively segregate the formerly combined cemetery project for the purpose of Endangered Species Act section 7 consultations.

On Feb. 8, 2005, OIA requested initiation of formal consultation with the U.S. Fish and Wildlife regarding the proposed public cemetery.

Lynch said that on April 20, 2005, Fish and Wildlife sent a draft biological opinion to OIA and the Commonwealth, the project applicant, which evaluated the effects of the proposed cemetery project on the Nightingale Reed-Warblers previously identified in the biological assessment.

The draft biological opinion proposed seven mandatory “reasonable and prudent matters” and two discretionary “conservation recommendations” to minimize the effects of the project’s incidental take, Lynch said.

“The Commonwealth has suffered legal wrong and is adversely affected by USFWS’s required purchase of one Nightingale Reed-warbler credit prior to commencement of land clearing for the project,” the lawyer said.