Southeastern Fishes Council
Dedicated to the Conservation of Southeastern Fishes

Decision Favors Alabama Sturgeon
May 18, 2007

Release from:
Sean Reilly
Press-Register (Alabama)

One of the fiercest genealogical disputes in recent Alabama history may be settled.

The subject, however, is a fish.

In a landmark decision, a federal appeals court recently ruled that the U.S. Fish & Wildlife Service acted properly in determining that the Alabama sturgeon, a rare freshwater fish found only in Alabama, is a distinct species that merits protection as endangered.

The three-judge panel on the Atlanta-based 11th U.S. Circuit Court of Appeals also unanimously rejected an industry group's arguments that under federal law, the sturgeon could not be listed because it is now found only in one state or that Fish & Wildlife officials should have already spelled out the "critical habitat" area needed to keep the sturgeon from extinction.

"A species in free-fall needs all the protection it can get," Judge Ed Carnes wrote in the 62-page opinion affirming a lower-court decision.

The 11th Circuit's ruling, which has gone largely unnoticed since it was issued in February, represents "a complete victory" for the Fish & Wildlife Service, said Jason Rylander, a staff attorney with Defenders of Wildlife, a Washington, D.C.-based environmental organization that filed a friend-of-court brief siding with the agency.

"I think the court has spoken with one voice that Congress does have the power to protect endangered species wherever they live," Rylander said this week.

On the other side, members of the industry group known as the Alabama-Tombigbee Rivers Coalition are "obviously disappointed," said one of its lawyers, Bill Satterfield of Birmingham.

After the full 12-judge appellate court declined to review the panel's February ruling, the coalition, which includes Alabama Power Co. and commercial river users, is considering whether to take the case to the U.S. Supreme Court, Satterfield said.

But the high court accepts only a fraction of appeals. If it rejected the case, the 11th Circuit's decision would stand as a pivotal turn in a controversy that has raged off and on since 1993.

That year, the Fish & Wildlife Service proposed putting the sturgeon -- a 30-inch tawny orange fish once plentiful in the rivers that drain into Mobile Bay -- on the endangered list.

Amid industry claims that the economic impact would be cataclysmic, the service backed off the next year, citing a lack of information over whether the fish still existed in the wild.

But over the next few years, several sturgeon were found in the Alabama River. In 2000, Fish & Wildlife officials listed the fish as endangered, triggering the industry lawsuit that led to the 11th Circuit's decision. Last month, by happenstance, state biologists found a sturgeon in the wild for the first time since 1999. With their federal counterparts, they are now tracking it in hopes of locating more.

Among opponents of the endangered designation, a key contention was that the sturgeon is not a species separate from the more common shovelnose sturgeon, which is found in rivers that drain into the Mississippi River.

In a court brief last year, for example, the Rivers Coalition argued that studies showed the two fish are "genetically identical."

Carnes, an Alabama native appointed to the bench by the first President Bush, disagreed. While the Alabama sturgeon and the shovelnose sturgeon are genetically similar, Carnes wrote, other evidence supported the Fish & Wildlife Service's conclusion that the Alabama fish is a separate species.

Carnes also rejected the coalition's argument that because the Alabama sturgeon is found only in one state and has little current commercial value, the federal government cannot list it as endangered through its power to regulate interstate commerce.

While describing the sturgeon as "one homely looking fish," Carnes took a more charitable view of its possible economic significance. "A species' simple presence in its natural habitat may stimulate commerce by encouraging fishing, hunting and tourism," he wrote.

Finally, he acknowledged concerns over the Fish & Wildlife Service's chronic failures to designate critical habitat for endangered species but concluded that wasn't enough to overturn the agency's decision on the sturgeon.

Assuming that the 11th Circuit Court's decision stands, it's unclear how soon the Fish & Wildlife Service will decide what portion of the state's rivers should be listed as critical habitat.

Critical habitat is usually described as the minimum area needed for the species to recover and thrive.

In the 2005 lower-court decision that also supported the sturgeon listing, U.S. District Judge Virginia Hopkins effectively gave the agency a year to determine what the critical habitat would be, once a final decision is made in the case. An attorney representing the Fish & Wildlife Service declined to comment.

In the late 1990s, critics had predicted the possibility of more than 100,000 lost jobs if the sturgeon were listed as endangered.

At the Coosa-Alabama River Improvement Association, a Montgomery organization that represents commercial users, President Jerry Sailors said Thursday that he wasn't aware of any economic effects thus far. Sailors is also a member of the Rivers Coalition.

"There could be an impact" in the future, he said. "It depends on where the critical habitat is."