Zoning 2800 Rhomberg TollbridgeFebruary 15, 2003
OYAL
Dubuc¢_e, iA
The City of Dubuque Mayor and
The Dubuque City Council
Attn: Jeanne Schneider, City Clerk of Dubuque
City Hall
50W 13t~ St.
Dubuque, IA 52001
Mr. Mayor and Council Members:
On behalf of Stott & Associates and myself, I respectfully request to withdraw the application
for rezoning of the Tollbridge Property. I sincerely appreciate your time and consideration on
this matter.
Sincerely,
/s/ A.J. Spiegel
CEO
P.O. BOX 50 · P EOSTA, IA 52068 · 319.556.7500
Plann/ng Services Department
City Hall
50 West 13th Street
Dubuque, Iowa 520014864
(563) 589-1~2_10 office
(5(x3) 5894221 fax
(563) 690-6678 TDD
planning@cityofdubuque.org
THE CITY OF
February 7, 2003
The Honorable Mayor and City Council Members
City of Dubuque
City Hall-50W. 13th Street
Dubuque lA52001
RE: Rezoning
Applicant: Stott & Associates/A. J. Spiegel
Location: End of Rhomberg Avenue (former Tollbridge Inn Restaurant)
Description:To rezone property from CR Commemial Recreation District to PUD Planned
Unit Development District with a PR Planned Residential zoning designation.
Dear Mayor and City Council Members:
The City of Dubuque Zoning Advisory Commission has reviewed the above-cited request.
The application, staff report and related materials are attached for your review.
Discussion
The property owner's representative and architect spoke in favor of the request, reviewing
the proposed project, surrounding physical features, access, parking and position relative to
views from Eagle Point Park. The owner's representative and architect indicated they had
contacted the U.S. Fish and Wildlife Service. They distributed photos of other projects done
in Dubuque County by A.J. Spiegel, the property owner.
Staff reviewed surrounding zoning and land use and noted that existing water and sanitary
sewer mains do serve the subject site but will,need to be upgraded to accommodate the
higher demands of the proposed development. Staff reviewed information on federal rules
for developments that impact the bald eagle and peregrine falcon.
There were public comments related to the bald eagle and peregrine falcon and the impact
of the development on them, views from Eagle Point Park and the river, and compatibility
with the area. The adjacent property owner discussed concerns with storm water runoff,
access during construction, and additional off-street parking. The Commission received
and filed several communications related to the proposal.
The Zoning Advisory Commission discussed the request, noting that the project represents
a significant impact to the surrounding property and is not compatible with the Eagle Point
area due to height, scale and design. The Commission offered to discuss changes to the
project with the owner. The owner's representative indicated Mr. Spiegel did not want to
make any changes in the proposal.
Service People lx, tegTity Responsibility Innovation Teamwork
The Honorable Mayor and City Council Members
End of Rhomberg Avenue(former Tollbridge Inn Restaurant)
February 7,2003
Page 2
Recommendation
By a vote of 6 to 1, the Zoning Advisory Commission recommends that the City Council
deny the request.
A simple majority vote is needed for the City Council to deny the request. A super majority
vote is needed for the City Council to approve the request.
Respectfully submitted,
Eugene Bird, Jr., Chairperson
Zoning Advisory Commission
Attachments
Dec i3 O~ 03:S3p Plannin~ 319-588-~221 P-~
PLANNING APPLICATION FORH
City of Dubuque
Planning Service5 Department
Dubuque, IA 5;!001-4864
Phone: 563-589-4210
[:ax: 563-589-~221
[] Variance []Rezoning
{]]Conditional Use Permit FJPlanned District
I'-lAppeal [-lPreiiminary Plat
[]Special Exception [-lNinor Rnal Rat
CllJ mited Set. back Waiver []lText Amendment
please tYPe or Prfilt leQiblv in ink
J--[Simple Site Plan
[-]Minor Site Plan
[] Major Site Plan
[] Major Hnal Plat
l-lSimpte Subdivision
Address:
J-]Temporary Use Permit
[]Certificate of Economic Non-Viability
FiCe~dficate of Appropriateness
Fax Number: _.~L~%- ~ Lin- .~--~,c:j d Mobile/Cellular Number:
Appticant/Agent:~>i'4 .~.~.o~,L-~'~ .~'--'~"r~-I~'~ J::~:~-*
Address: Iq&1%. ~/~v~ 5~,rral~l ab/: /l,~-~ s~am: ~
F~ Numar: ~1~- ~-~ ~ J Mobile/~lular Numar:
~fing zoning: ~o~ zoning: ~ Hi~c Dis~:
J])olSo&:6
Landmark:
Legal Descfi~on (Sidweil parcel ID# or lot number/block number/subdivision):
Total pmperty (Iot) area (square feet or acres): ~'~Z.Z?/ ~ ~:).-7C~
Describe proposal and reason necessary (attach a letter of explanation, if needed):
CERTIFiCATION: I/we, the undersigned, do hereby Certify that:
1. The informaUon subrnitl~d herein is b-ua and correct to ~ best of my/our knowledge and upon
submittal becomes public record;
2. Fees am not refundable and payment does not guaranme approval; and
3, All ad~onal required wriL-ten and gra~ic materials are attached.
FOR OFF[CE USE ONL~ A~I)L[C~'T'r-~)N SUBMTrFAL CHECl(i.IST
FISite/sketch plan [] Concaptual Deve]op~l~ Plan ['-]Photo L.JMat
F~mpmveme~t plans l--I[)~s~gn review projec~ description r-]Floor plan FiOther:
Applicant: Stott & Associates/A, J.
Spiegel
Location: End of Rhomberg Avenue
(former Tollbridge Inn Restaurant)
Description: To rezone property from
CR Commercial Recreation District
to PUD Plannedn Unit Development
District with a PR Planned Residential
zoning district.
EAGLE VILLA
Dubuque, Iowa
PLANNED DISTRICT STAFF REPORT Zoning Agenda: February 5, 2003
Project Name:Eagle Villa
Property Address:2800 Rhomberg Avenue
Property Owner:A. J. Spiegel
Applicant:Jon Harvey, Stout & Associate Architects
Proposed Land Use: Residential
Proposed Zoning: PUD
Existing Land Use: Commercial
Existing Zoning: Commercial/Recreation
Adjacent Land Use:
North - Lock & Dam
East - Vacant
South - Commercial
West - Commercial/Parkland
Adjacent Zoning: North - R-1
East- CR
South - CS
West -CR/R-1
Flood Plain: No
Total Area: .8 acres
Water: Yes
Existing Street Access: Yes
Storm Sewer: No
Sanitary Sewer: Yes
Previous Planned District: None.
Purpose: The requested PUD zoning is to allow the development of 80 condominium
units in an eight-story high-rise residential building.
Property History: The subject property was used as the approach and tollbooth for the
old Wisconsin Bridge. After its demolition in the 1980s, the Tollbridge Inn Restaurant
was constructed and operated until the fall of 2002.
Physical Characteristics: The subject property is approximately .8 acre in size with the
lot being approximately 50 feet wide and 600 feet in length. The subject parcel served
as the approach and tollbooth area for the old Wisconsin Bridge. The subject property
abuts the bluff with Eagle Point Park located approximately 150 feet above the
property.
Conformance with Comprehensive Plan: The 2002 Comprehensive Plan designated
the subject property as commercial.
Planned District Staff Report - Eagle Villa Page 2
Staff Analysis:
Streets: Access to the property will be from Rhomberg Avenue. No changes to
Rhomberg Avenue are anticipated.
Sidewalks: No additional sidewalks will be constructed as part of this project.
Parking: Off-street parking wilt be provided based on a ratio of two spaces per
unit. Approximately half of the spaces will be provided in a level and a half of
underground parking beneath the proposed building, with the remaining off-street
parking provided on property adjacent to the subject parcel being requested for
rezoning. Access to the outdoor off-street parking will be by way of two
stairs/elevator towers that will provide direct access from the parking lot to the
building,
Lighting: New outdoor lighting shall be required to be 72-degree cutoff luminaries.
Signage: None proposed.
Bulk Regulations: The setbacks of the proposed structure will be minimal and will
be in substantial compliance with the adopted conceptual development plan.
Permeable Area (%) & Location (Open Space): The proposed condominium
building will be constructed over what is already a totally impermeable site. Minor
planting areas may be incorporated into the project but will represent a very small
percentage of the site.
Landscaping/Screening: None proposed,
Phasing of development: None.
Impact of Request on:
Utilities; Existing water and sewer mains will need to be upgraded as part of this
project to serve the proposed residential building. City staff has met with project
representatives and the necessary changes to the utilities can be accomplished
without significant impact to the project or adjacent properties,
Traffic Patterns/Counts: Rhomberg Avenue is classified as a local street. No
vehicle counts are available for the north end of Rhomberg; however, south of the
Rhomberg Avenue and Hawthorne Street ntersection, a count of 4,660 average
daily trips was obtained in 2001.
Public Services: Existing public services are adequate to serve the site
Planned District Staff Report - Eagle Villa Page 3
Environment: The proposed eight-story residential structure will change the
vistas at the north end of Rhomberg Avenue. There are Federal regulations
concerning the impact of new developments on eagles and their habitat. Some
background information has been included as part of this packet for the Zoning
Advisory Commission's review.
Adjacent Properties: The proposed project will impact adjacent property most
notably in terms of increasing the volume of traffic going to and from the site and
in changing the current view from adjacent property toward the river and the Lock
and Dam.
CIP Investments: None proposed.
Staff Analysis: The applicant is requesting rezoning of the subject parcel from CR
Commercial Recreation to PUD Planned Unit Development with a PR Planned
Residential Designation. The proposed project includes the construction of an eight-
story residential building with 80 condominium units. Parking for 82 care will be
provided in a one and a half story of underground parking area with an additional 85
spaces provided on surface parking immediately east of the proposed residential
structure.
The subject property is currently zoned CR Commercial Recreation District. The CR
district allows for a mix of commercial and recreation uses as the name implies. The
district allows a maximum height of 100 feet, except for gas stations and restaurants,
which are limited to 40 feet in height. The CR district would allow some structures,
such as a hotel, to be built to the same size as the proposed residential structure. The
requested Planned Residential District is necessary to allow the development of 80
residential units in one structure. The maximum number of residential units allowed in
a structure in the R-4 Multi-Family District is 12 units. The Zoning Ordinance requires
a minimum of two acres for a PUD. The applicant received a variance from the Zoning
Board of Adjustment to allow a PUD District of .8 acres. The Zoning Board of
Adjustment approved the request at their January 23, 2003 meeting, subject to
rezoning of the parcel to a Planned Residential District.
The proposed residential structure can be served by City water and sewer; however,
both utilities will require upgrades to accommodate the new residential structure. This
site is currently served by a six-inch sanitary sewer main, which will need to be
upgraded to accommodate the higher flows from an eight-floor condominium
develoPment. The existing water main pressure may have to be augmented with
booster pumps to provide sufficient pressure to serve the required sprinkler system.
The applicant is proposing that a minimum of two off-street parking spaces be provided
per unit. Approximately half will be provided under the building in covered parking, and
the remainder on a surface lot immediately east of the residential structure. Access
from the residential structure to the outdoor surface parking will be provided by two
Planned District Staff Report - Eagle Villa Page 4
stairs/elevator towers. The outdoor surface parking lot will also provide necessary
emergency access for medical and fire crews.
The condominium units will generate approximately 469 average vehicle trips. The ITE
Trip Generation Report 5th Edition indicated an average rate of 5.86 vehicle trips per
dwelling unit on a weekday. This rate was based on 53 trip generation studies from
similar condominium developments.
Planning staff has received a number of questions and inquiries concerning the impact
of the proposed residential development on the bald eagles that frequent the area
during winter and the structure's impact on the views from Eagle Point Park. Based on
topographical maps, the top of the proposed residential structure at the far north end of
the site will still be approximately 50 feet below the base level of the Shiras Memorial
Pavilion site. The applicant has taken photographs of the area with the aid of a crane
to demonstrate the height of the proposed residential structure relative to the
surrounding bluffs. The photographs will be available at the February 5th Commission
meeting.
Attached to this staff report is information regarding Federal protections for the Bald
Eagle and Peregrine Falcon. There are also regulations that protect the habitat of
endangered and threatened species. The Federal and State governments are charged
with the protection of endangered and threatened species and the applicant is
responsible for compliance with those regulations, Attached to this staff report is a
draft copy of the PUD Ordinance that includes under "Performance Standards" a
requirement that all Federal and State regulations pertaining to endangered and
threatened species and their habitat be complied with prior to construction of the
project.
Planning staff recommends that the Zoning Advisory Commission review Section 3-
5.5(F) that establishes standards for PUD approval,
Prepared by:
Reviewed: Date:
Prepared by: Laura Carstens, City Planner Address: City Hall, 50 W. 13th Street Telephone: 589-4210
ORDINANCE NO. -03
AN ORDINANCE AMENDING APPENDIX A (THE ZONING ORDINANCE) OF
THE CITY OF DUBUQUE CODE OF ORDINANCES BY RECLASSIFYING
HEREINAFTER DESCRIBED PROPERTY LOCATED AT 2800 RHOMBERG
AVENUE FROM CR COMMERCIAL RECREATION DISTRICT TO PUD
PLANNED UNIT DEVELOPMENT DISTRICT WITH A PR PLANNED
RESIDENTIAL DISTRICT DESIGNATION AND ADOPTING A CONCEPTUAL
DEVELOPMENT PLAN WITH CONDITIONS.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. Appendix A (the Zoning Ordinance) of the City of Dubuque Code of
Ordinances is hereby amended by amending by reclassifying the hereinafter described
property from CR commercial Recreation District to PUD Planned Unit Development
District with a PR Planned Residential Distdct designation and adopting a conceptual
development plan, a copy of which is attached to and made a part hereof, with
conditions as stated below, to wit:
Tollbridge Place, and to the centerline of the adjoining public right-of-way,
all in the City of Dubuque, Iowa.
Section 2. Pursuant to Iowa Code Section 414.5 (2001), and as an express
condition of the reclassification, the undersigned property owner agrees to the following
conditions, all of which the property owner further agrees are reasonable and imposed
to satisfy the public needs that are caused directly by the zoning reclassification:
Use Re,qulations.
The following regulations shall apply to all uses made of land in the above-
described PUD District:
1) Principal permitted uses shall be limited to 80 condominium units and a
community center.
2) Accessory uses shall .include any use customarily incidental and
subordinate to the principal use it serves.
Lot and Bulk ReRutations.
Development of land in the PUD District shall be regulated as follows:
Ordinance No. __-03
Page 2
D=
Eo
1) The proposed condominium development shall be constructed in
substantial compliance with the attached conceptual development plan.
2) Maximum building height shall be limited to 100 feet as measured from
the first floor elevation of the residential units.
performance Standards.
The development and maintenance of uses in this PUD District shall be
established in conformance with Section 3-5.5 of the Zoning Ordinance and
the following standards:
1) The property owner shall be responsible for securing all required state
and federal permits and/or approvals and be in compliance with all
regulations pertaining to the Endangered Species Act,
2) Adequate erosion control shall be provided during alt phases of
construction.
3) Off-street parking shall be provided as shown on the approved
conceptual plan~
4) Storm water control facilities will be installed as per City Engineering
requirements.
5)
Final site development plans shall be submitted in accordance with
Section 4-4 of the Zoning Ordinance prior to construction of any
buildings.
Open Space and Recreational Areas
Open space and landscaping in the PUD District shall be regulated as
follows:
Those areas not designated on the conceptual development plan shall be
maintained as open space, as defined by Section 8 of the Zoning Ordinance
by the property owner and/or association.
Sign Re.qulations.
Signs in the PUD District shall be regulated in accordance with the R-3 sign
regulations of the Zoning Ordinance.
Transfer of Ownership
Transfer of ownership or lease of property in this PUD District shall include
in the transfer or lease agreement a provision that the purchaser or lessee
Ordinance No. -03
Page 3
acknowledges awareness of the conditions authorizing the establishment of
the district.
Reclassification of Subject Property.
The City of Dubuque, Iowa, may initiate zoning reclassification proceedings
to CR Commercial Recreation District in accordance with Section 6 of the
Zoning Ordinance if the property owner fails to complete or maintain any of
the conditions of this ordinance.
Modifications.
Any modifications of this Ordinance must be approved by the City Council in
accordance with zoning reclassification proceedings of Section 6 of the
Zoning Ordinance.
Rec0rdinq.
A copy of this ordinance shall be recorded at the expense of the property
owner(s) with the Dubuque County Recorder as a permanent record of the
conditions accepted as part of this reclassification approval. This ordinance
shall be binding upon the undersigned and his/her heirs, successors and
assigns.
Section 3. The foregoing amendment has heretofore been reviewed by the
Zoning Commission of the City of Dubuque, Iowa.
Section 4. The foregoing amendment shall take effect upon publication, as
provided by law.
Passed, approved and adopted this __ day of
,20O3.
ATTEST:
Terrance M. Duggan, Mayor
Jeanne F. Schneider, City Clerk
ACCEPTANCE OF ORDINANCE NO. -03
I, A.J. Spiegel, property owner, having read the terms and conditions of the
foregoing Ordinance No. __- 03 and being familiar with the conditions thereof, hereby
accept the same and agree to the conditions required therein.
Dated this __ day of ,2003.
By:
A. J, Spiegel,
MEMORANDUM
January 29,2003
TO:Laura Carstens, Planning Services Manager
Kyle Kritz, Associates Planner
FROM:Mary Rose Corrigan, RN, Public Health Specialist
SUBJECT:Environmental Stewardship Advisory Commission Assistance
At the Environmental Stewardship Advisory Commission meeting on January 28, 2003,
the Commission briefly discussed the condominium proposal at the former Tollbridge
Inn site. The Commission agreed that they would offer their advice and expertise on
the zoning issue, particularly with respect to falcons and eagles in the area and how
the development would impact their habitat.
Commissioner Dan Calvert may be available at the Zoning Commission meeting to
assist with questions and communicate back to the Environmental Stewardship
Advisory Commission regarding their role on this issue.
MRC/cj
The Dubuque Audubon Society
Iowa
A CHAPTER OF THE NATIONAL AUDUBON SOCIETY
To: Dubuque Zoning Commission CITY OF DUBUOUE
From: Dubuque Audubon Society PLANNING SERVICES DEPARTMENT
Re: Development at former Toll Bidge Restaurant
Dear Zo~ag Commission:
An eight-story condominium complex has been proposed for the north end of the City of Dubuque. The
planned area is at the former Elizabeth's Toll Bridge Inn at 2800 Rhomberg Avenue.
The site selected for the construction of the condominhnns is a winter roosting site of the Bald Eagle. It
has been a roosting site for the eagles due to its proximity with Lock and Dam #11. The open water
provides a place to hunt for their main diet of fish. The cliffs provide an excellent location for roosting m
stay calm and maintain body heat during the winter months. At the Bald Eagle event January 11 the main
roosting area was just above the restaurant.
The site is also the location where 42 Peregrine Falcons were released during the summers of 1999, 2000
and 2001. The birds were released just to the south in the old quarry area. The cliffs were the main reason
the Iowa Department of Natural Resources and several conservation groups seleated the site. The birds
first released in 1999 should be returning in 2003 during a three year absence to Argentina. This is normal
for falcons to leave for three years while they are maturing. When they reach adult age at age 4 they return
to the site they were raised to build their own nest.
With the coustruetion of the eight-story building the success of the Peregrine Falcons may be in jeopardy
and the success story of the Bald Eagle, at least in Dubuque my be harmed. Many people visit the
Dubuque area to watch the eagles, many will come to watch the falcons and many visit to view the natural
scenery along the rivers, cliffs.
I would also like to mention that the view from Eagle Point Park would be changed. Yes, you will be able
to look out across the river, but down would be a large building obscuring the visual view you have today.
People go to the park for the view that is there today, which includes the view down.
Prior to any development of this site it would be important that you determine the impact it would have.
You should evaluate the impact on wildlife, tourism, local interests and beautification. The citizans of
Dubuque are proud of theiw city. The City Council has taken great strides in the pas~ years to bring
Dubuque where it is today. With the Mississippi River Museum planning to open in 2003 you should look
at our greatest treasures - the river and all of its components.
Sincerely,
Cc; David Flicker, President of National Audubon Society
Terry Duggan, Dubuque City Mayor
Dubuque City Council
19 November 2002
Planing and Zoning Commission
Dubuque City Council
Dubuque Park and Recreation Board
To whom it may concem:
It would not be in the best interests of our beautiful Eagle Point River fi'ont and Park to
allow the rezoning of the present Tollbridge Inn property for the proposed building of a
condominium complex.
Such a structure would certainly detract from the unique view of the Eagle Point bluffs
from the entire area above, below and across the river from the locks and dam. It would
also detract from the river view we presently enjoy from the Shiras Memorial, the Tri-
State Picnic Shelter and other viewing points in our Eagle Point Park.
Other communities along the upper Mississippi, in Wisconsin and Minnesota are
currently forming conservancy groups to preserve our river bluffs. An excellent article
about the success of these preservation efforts is in the September-October issue of the
"Big River Magazine". I have enclosed a copy of this article with this letter.
Sixty-five years ago, civic minded individuals and groups stepped forward to stop further
encroachment of the Eagle Point Bluffs by various Quarry owners.
The city of Prescott, Arizona, has regretted ever since allowing a high rise building to be
built infringing on their view of the forested bluffs on the western edge of the city.
We allowed Urban Renewal to destroy so many of our historic beautiful Victorian homes
and other period structures in our downtown area, and lost much of the character of our
town.
It would be tragic to build the proposed complex at this location in Dubuque. Let us learn
from our past mistakes. Please take appropriate action to ensure that our Park, our Bluffs
and our River Front will be preserved for all citizens to view and enjoy.
Sincerely,.
Bob Eichman
3080 Karen Road
Dubuque, Iowa 52001
Phone: 563 582 8520
e-mail: tmvel_cam~_~mwci.net
Exploring the Mississippi
Big River
www.big-river.com
Fall Festivals
Should you get a better Outboard?
Saving the Bluffs
By Ty Webster
Ahuge house is being
built on the bluff
above the river. Trees
are cur. habitat destroyed, and
the gentle curve of the bluff is
blemished by another mono-
lith. For one'famll~; this is the
attainment of the American
Dream. For the multitude who
cherish the natural beauty of
the Mississippi Valley, howev-
er, it is another step in a sad
decline.
Thanks to the Mississippi
Valley Conservancy (MVC),
this story may become less
common in southwest Wis-
consin. The conservancy,, a pri-
vate, non-profit land trust,
works to conserve diverse
landscapes in Buffalo, Trem-
pealeau, La Crosse, Vernon, Craw-
ford and Grant counties.
The Mississippi River'bluffs are '
one of its six priority areas, as evi-
denced by two recent acquisitions:
190 acres of bluffland along the riv-
er south of Cassville and a 12-acre
addition to the Hixon Forest on
bluffiand above La Crosse in part-
nership with the City of La Crosse.
The Roe Preserve, near Cassvllle,
is ecologically rich, with rare
spedes of plants and animals. It is
also archeologically important, con-
raining a bird-shaped effigy mound
with a 270-foot wingspan. Its large
tracts of pristine upland and low-
land forests are topped by a goat-
prairie bluff offering a stunning
view of a sublime stretch of the
Mississippi River Valley.
The Wisconsin Depa~ tment of
Natural Resources (DNR) and MVC
teamed to purchase the 244-acre
property from Lawrence and
Kathryn Roe of Madison last April.
The conservancy bought 190.6 acres
of the former farm for $300,000, and
the DNR bought the remaining 53
acres for $100,000. The Roes helped
with an $82,000 land-value dona-
tion to the conservancy. The proper-
ty is now the "Roe Preserve," or
Roe Unit of the Cassvllle Bluffs Nit-
ural Area.
Above; The Roe Preserve
at Cossville, Wis., offers
magnificent views of the
river valley. (Ty Webster)
Left; Lawrence and
Katho/n Roe are former
owners of the Preserve.
Cynthia Olmstead (I.) is
the executive director of
the MVC, (MVC)
Small Start
Before a small group started
MVC in 1997, Wisconsin had over
40 land trusts, but none in the
southwestern corner of the state.
Conservancy president Maureen
Kinney is an attorney with Johns
and Flaherty, SC, in La Crosse. She
has lived hn the dty since 1975.
"There were 12 on the initial
board of directors," she recaIIed.
"That was essentially the entire
group at that time."
(Conservancy continues on page 23)
(Conservancy continued from page 21)
They formed MVC with guid-
ance from the Gathering Waters
Conservancy of Madison, Wis.,
and the Blufflands Alliance, a
partnership of conservation orga-
nizations. By 1999 it was more
than 200 members strong, and
currently it has more than 440
members and four paid employ-
ees. They quickly figured out how
to attract funds from charitable
orgardzations and foundations, in
particular the McKni~t Founda-
tion of Minneapolis, Minn., and
the Philip M. Gelatt Foundation of
La Crosse, Wis. More importantly,
they turned the money into con-
served lands. To date, the MVC
has protected over 1,100 acres. In
addition to protecting lands, mem-
bers enjoy field trips and group
work days.
Cynthia Olmstead, MVC's execu-
tive director since 1998, sees the
group's activities as an expression
of local sentiment:
"I've lived here four years now,
and people here more than any-
where else I've lived just seem to
have a love for the area."
Conservancy Toolbox
MVC works with a variety of
tools, including a Landowner Reg-
istry Program, conservation ease-
ments, land donations and land ac-
quisitions.
The Landowner Registry Pro-
gram is essentially a "handshake"
agreement with landowners, who
agree to 'conserve their land to the
best of their ability. The conservan-
cy provides them with information
about natural features and steward-
ship. The agreement is not legally
binding, and may be canceled at
any time. The owner determines the
amount of public access to the land.
"I consider it our outreach pro-
gram," Olmstead said. "It doesn't
offer permanent protection, but it is
a great way to get to know people
in the area; and it's a good way to
reward people for good steward-
ship practices."
A conservation easement is a le-
gal agreement with landowners
who promise that the majority, of
Top: The Fitzpatrick addition to
Hixen Forest in La Crosse has great
views of the river and the hills. This
view looks toward West Salem.
Right; Tom Fitzpatrick,
(Ty Webster)
their property will remain unde-
veloped. They retain ownership
of their property but may use it
only for purposes compatible
with sustainable conservation.
The easement is a charitable dona-
tion, for tax purposes. The easement
value, determined by an appraiser,
is essentially the difference between
the property value with full devel-
opment potential and the value
with easement restrictions. The tax
benefit can be taken over a span of
up to five years. Owners decide the
amount of Public access to their
land.
"It mainly restricts development
rights and mineral rights," Oh-n-
stead explained. "There can be
some limited development. But the
majority of the land is permanently
restricted from development. These
are perpetual. You can sell it. You
can give it to your kids. You still
own the land. We just go in and
monitor it each year to make sure
that the restriction is still in place."
Through land donations and ac-
quisitions, MVC actually takes
ownership of properties. Gifts of
land can provide landowners with a
charitable tax deduction and avoid
capital gains taxes, tn an outright
sale, the owner can gain tax benefits
by selling the land below its ap-
praised value.
"If they do that, they can use the
amount between the appraised val-
ue and what they sell it to us for as
an income tax donation, and that
can be pretty significant," Olmstead
said.
"For many landowners, they do
need some income off of the land
for retirement or other purposes,"
she said. "This is a way they can get
a fair price. We pay full market val-
ue. But they know that it is going to
be protected for future generations
to enjoy."
All of the conservancy's land is
open to the public for Iow-impact
re~eation. Many of the properties
are designated as nature preserves.
"Sometimes the perception is
'Oh, you're an environmental
group, you just want to shut lands
off,'" Olmstead explained. "We're
very much the opposite. We're try-
ing to provide more lands for the
public to recreate on."
In general, MVC focuses on
properties with at least a portion in
relatively natural or restorable na-
tive habitat or that possess high
scenic value.
"We're not as strict as some of
(Conservancy conthzues on page 25)
September-October 2002 / BIG RIVER
(Conservancy continued from page 23)
the organizations, Jike the Nature Crosse River wetlands in 1998. and
Conservancy, where you almost came about as the result of a mutu-
have to have some sort of rare al desire to protect the dty's
species or natural area," Olmstead bluffiands fi:om rampant develop-
pointed out. "But you know what? ment.
Most of the lands wind up having ~~obuy
those things anywa, because Lh~s is
such a rich area ecologically."
"What people want is
that million-dollar view
of the Mississippi River.
siders only sites of 20 acres or From my perspective, I
more. One notable exception is the think that view belongs
to the public."
conservancy's partnership program
with the City of La Crosse -- the La
Crosse Bluffiands Protection Pro-
gram. Because of the high cost of
the prime real estate in town. small-
er parcels are considered. The main
focus is land along the bluff be-
tween County Highway B. on the
northern end of La Crosse. and U.S.
Highway 14/61, on the city's south
side.
The program began in December
of 2001. It followed a joint project
that conserved over 350 acres of La
of the Mississippi River.
From my perspective, I
think that view belongs
~ to the public." /
to ad~t~a~affons fi:om_~mbers,
private foundations and public
grants. The conservancy brokers
the deals with landowners, then
transfers the parcels to the city,
which designates them as parkland
and provides the maintenance.
"It was a real synergy," Olin-
stead said. "We're lucky to have a
Kirch. He was a driving force be-
hind the project."
Kirch. a Wmona State University
alumnus and La Crosse's planning
director for the past nine years, had
the same idea. "I wanted s program
where the c/ty wasn't the purchas-
er,'' he said. "The city itself doesn't
have the expert/se, per se. to nego-
purchases. And Cynthia and her
group, that's what they do. I
thought this would provide ct,fy re-
sources but at the same time re-
move the city from the acquisition
process, because I had observed
that the sellers always think that
the dty's going to pay more: and I
want our dollars to go as far as
they can... I suggested that we put
$200,000 a year aside for the next 20
years or as long as it takes to pro-
tect,the bluffiand."
The program's goal is to increase
the size of Hixon Forest, a large,
blufftop city park laced with trails.
very visi~onar, z_ci~tT.plarmer Lar_r_~_
A number of other non-profit organiza-
tions put at least a portion of their efforts
and resources toward preservation of the
Mississippi Valley.
Several of these groups work together in
a loose partnership known as the BIufflands
Alliance.
Blufflands Alliance Members:
Mississippi Valley Conservancy
EO. Box 2611
La Crosse, WI 54602
(608) 784-3606
Jo Davieas Conservation Foundation
RO. Box 6
Scales Mound, IL 61075
(815) 777-4011
A non-profit, charitable and educational
organization dedicated to enlightened land
management; its mission is to protect the
natural heritage, scenery and agricultural
character of lo Daviees county and the sur-
rounding area in northwest Illinois.
Iowa Natural Heritage Foundation
505 5th Ave:, Suite 444
Des Moines, IA 50309
wildlife. Since its founding in 1979, the
INHF has protected more then 70,000 acres
including prairies, wetlands, woodlands,
greenways, trails, and river corridors in
Iozoa.
Minnesota Land Trust ·
2356 University Ave. W., Suite 400
St. Paul, MN 55114
(651) 647-9590
A private, non-profit organization work-
ing with land owners and communities to
protect Minnesota's land and water re-
Wisconsin Farmland Conservancy
500 Main St., Suite 307
Menominee, WI 54751
(715) 235-8850
A regional land trust in west-central
Wisconsin protecting the character of the
rural countryside.
Gathering Waters Conservancy
211 S. Patterson, Suite 180
Madison, WI 53703
(608) 251-9131
A land conservation organization found-
ed to assist land trusts, landowners and
National Organizations
t~te Tntst for Public Land (TPL)
116 New Montgomery St., 4th Floor
San Francisco, CA 94105
(415) 495-4014
Midwest Regional Office
2610 University Ave., Suite 300
St. Paul, MN 55114
(651) 917-2240
A national non-profit working to protect
land for human enjoyment and well-being.
TPL helps conserve land for recreation and
spiritual uaurishment and to improve the
health and quality of life of American com-
munities.
The Nature Conservancy
4245 North Fairfax Drive, Suite 100
Arlington, F~ 22203-1606
Midwest Office
1313 5th St SE, Suite 314
Minneapolis, MN 55414-1588
(612) 331-0700
Aims to preserve plants, animals and
natural communities by protecting the
[ands and waters they need to survive.
Helped preserve the the 592-sere Weaver
(515) 288-1846 . . communities in their efforts to protect Wis- Dunes Scieatific and Natural Area near
A member-supported, non-profit organ~- consin's land and wat~rreSources. Kellogg in Wubasha Count, Minn., a eriti-
zatian that protects land, water and cal habitat for Blanding's turtles. /
(Conservancy continued from page 25)
"It's simpie,' Kirch said. "You just
take that Hixon Forest concept and
expand it. Instead of 800 acres it
"We did a survey of
about 3.000
househoZds .... it was
clear from the
responses that people
vatue the river and
the bluffs and the
scenic beauty of the
La Crosse area.'
will be 3,000 acres... We can look
back to 1911, when the I-Iixon Forest
was created, and say 'What a won-
derful idea and great gift to the
community that was.' Maybe 100
years from now people will look
back at this and appreciate it just as
Kirch points to a survey taken by
the city's planrdng commission for
its comprehensive plan. "We did a
survey of about 3,000 households,"
he said. "It was dear from the
sponses that people value the river
and the bluffs and the scenic beauty
of the La Crosse area and that pro-
tection of the skyline was a real
concern... What people want is that
million-dollar view of the Mississip-
pi River. From my perspective, I
think that view belongs to the pub-
The 12-acre addition to Hixon
Forest in February 2002 was the
program's first land acquisition. Be-
cause the land is in a desirable loca-
tion with phenomenal views of the
river and Lake Onalaska, the price
tag was a hefty $168,300.
The seller, La Crosse attorney
Tom Fitzpatrick, recalled "I was
having it divided into three parcels
and almost immediately had offers
from private buyers who wanted to
build on them. At about the same
time, I heard about the Bluffland
Preservation Project. At that point it
had not been adopted, but I derid-
ed to wait and see if it would be
adopted."
Fitzpatrick, a La Crosse native
and Aquinas High School graduate,
has fond memories of exploring the
city's btuffiands.
'I thought the Bluffiands Preser-
vation Program was a program
with unusual vision," he said. "If
the City of La Crosse and the con-
servancy can realize this vision, to
preserve a corridor of bluff~op
lands, I think it would be a wonder-
ful thing."
According to Olmstead, they are.
"We've had a tremendous response.
We're already working on another
1,000 acres. There are lots of willing
sellers out there. Of course now we
have to raise all that money." ~ ~
Ty Webster is a freelance writer and
· river enthusiast who lives in Trem-
pealeau, Wis. His last story was "Alma
Hotel -- a Classic Diner with a Histo-
ry,' November-December 2001.
(Dinos continued from page 35)
shape of all the bone joints with
those of Deinonychus. Every single
bone is exactly similar in shape to
those of the Maniraptorans. Os-
trom's drawing of Archaeopteryx
shows it in a running pose to illus-
trate the similarity to dinosaurs. It
is likely that birds arose from the
Manir~ptorans in the late Jurassic.
Deinonychus is one example of an
animal that links dinosaurs with-
birds.
LEARNING TO FLY ONE STEP
AT A TIME
The young eagles we enjoyed
watching practice their flying come
at the task from a different perspec-
tive than their predecessors. Eagles
and other modem raptors are
pushed from the nest into the air it-
sell They must fly to survive.
Earlier raptors started the task
from a safer position, with the terra
firma underfoot. They used their
arms, covered with small feathers,
to run faster. The grabbing stroke of
the arms in rtmning Maniraptorans
is exactly the same as the power
stroke in bird flight. Feathers on the
arm and hand added the thrust of
grabbing to their running speed, al-
lowing them to catch prey and giv-
The grabbing stroke of
the arms in running
Maniraptorans is
exactly the same as
the power stroke in
bird flight.
ing Archaeopteryx the ability to nm
its way into flight.
After Archaeopteryx, birds became
more modem very rapidly. They
grew a homy beak and lost their
teeth, bones became hollow, the
front severai tail vertebrae were in-
duded in the hipbones, and the oth-
er tail vertebrae were greatly short-
ened. All of these measures saved
weight. The easiest way to go faster
(or save energy) is to lose weight.
They also added more muscle pow-
er to the wing stroke, greatly in-
creasing the size of what we call the
breast of the bird.
All of these changes occurred
more than 130 million ago, and are
documented at the site in northeast
China. There we find modernized
birds (but still with teeth) as well as
some of their dinosaur Manirap-
torah cousins with feathers, that
could not fly. By this time birds had
certainly spread ali over the world,
including this area, but their re-
mains were not preserved.
This "new improved" dinosaur
seems to work pretty well at least
after the young ones sofir beyond
the steep learning curve of flight
training. Perhaps fledglings will
still be leaping awkwardly out of
nests 100 million years from now. ~
Robert E. SlOSh was a professor of pa-
leontology at the University of Min-
nesota for 44 years. He now lives on the
big river near Winona. His last story
was "A Tale of Two Ciffes and a Water-
fall,~ November 2000.
38 BIG RIVER / September-October 2002
ESA Bamcs
Over 25 years of protecting
endangered species
When the Endangered Species Act (E. SA)
was passed ha 1973, it represented
America's concern about the decline of
many valdlife species around the world.
It is regarded as one of the most
comprehensive wildlife conservation laws
in the world_
The purpose of the ESA is to conserve "the
ecos~2~3tems upon which endangered and
tl~reate~ed spedcs depend' and to
c~serve and recover listed species.
Under the law, species may be listed as
e~her'endangered" or ~threatened'.
Endangered means a species is in danger
of extinction throughout all or a
si~ficant poriSon of its range.
Tbrearaned means a species is likely to
become endangered within the
feamseeable future. Al/species of plants
and anirn-als, except pest hasects, are
el;~gible for listing as endangered or
threaZermd.
As of Augnst 31,200Z, 1,818 species are
~isted, ofwhich 1,260 are U.S. species. The
]We covers mammals. [~n'ds, reptiles,
ampl~'blans, fmhes, snails~ dams/mussels,
crustaceans, insects, arachnids, and plants.
Groups with the most listed species are (in
m,~er) plants, mammals, birds, fishes,
repU'las, and damm/museels.
TI~ law is administered by the Interior
~artmont's U.S. Fish and Wildlife
Service (FWS) and the Commerce
Depmrtmenfs National Marine Fisheries
Service. The FWS has primary
responsibility for terrestrial and
freshwater organisms, while the Natianal
Marine Fisheries Service's
responsib'ditias are mainly for marine
epedos such as salmon and whales.
The 1973 Endangered Spedes Act
replaced earlier taws enacted ha 1966 and
19§9, which provided for a l/st of
endangered species but gave them little
meaningful prom The 1973 law has
been reauthorized seven times and
amended on several occasions, most
recently in 1988. The Endangered Species
Act was due for reanthorization again ha
1993. but legislation to reauthorize it has
not yet been enacted. The Endangered
Species program has continued to receive
appropriations while Congress con~ders
reauthorization, allov~_n~ conservation
actions for threatened and endangered
species to continue.
The ESA
The Endangered Species Act is a complex
law with a great deal of built-in
flexibility. Some basics of the law include:
Purpose
When Congress passed the Endangered
Species Act ha 1973. it recognized that
many of our nation's native plants and
animals were ha danger of becoming
extinct. They further expressed that our
rich natural heritage was of "esthetic.
ecological, educational, recreational, and
scientific value to our Nation and its
peopte.~ The purposes of the Act are to
protect these endangered and threatened
species and to provide a means to
conserve them ecosystems.
Federal Agencies
All federal agendes are to protect spades
and preserve their habitats, l~ederal
agencies must utilize th(zr authorities to
c6naerve listed spedas and make sure
that their actions do not jeopardize the
continued existence of listed spedes. The
FWS and the National Marine Fisheries
Service work with other agendes to plan
or modify federal projects so that they
will have minimal impact on listed
spedes and their habitat.
Working with States --Section 6
The protection of species is also achieved
through partnerships with the States.
Section 6 of the law encourages each
State to develop and maintain
conservation programs for resident
federally-listed threatened and endangered
Bald e~gle
C~ref Corp, photo
spedes. Federal financial assistance and a
system of i~centives are available to attract
State participation. Some State laws and
regulations are even more restrictive ha
granting exceptions or permits than the
current ESA.
Working wi th non-Federal landowners, the
Service provides finandal and technical
assistance to landowners to implement
management actions on their lands to
benefit listed and nonlisted species.
Lmm[ In~ol~emer~
The protection of federally listed spedes
on Federal lands is the first priority of
the FWS, yet. many species occur
partially, extensively or, in some cases,
exdnsively on private lands. Polities and
incentives have been developed to protect
private landowners' interests ha their lands
while encouraging them to manage their
tends in ways that benefit endangered
spades. Much of the progress in
recovery of endangered species caa~ be
attributed to public support and
~r~rolvement_
Lisl~ --~ctice 4
Species are listed on the basis of "the
best scientific and commercial data
avaliable.~ Listings are made snlely on
the basis of the species' biological
status and threats to its existence. In
some instances, a species which closely
resembles an endangered or tkreatened
species ~s listed due to simflari~ of
appearance. The FWS decides all
listings using sound sdence and peer
review to ensure the accuracy of the best
available data.
Candidate Species --Section 4
T~e FWS also maintains a list of
;candidate~ species. These are species
for which the SmMce has enough
~ormation to warrant proposing them
for Iisting as endangered or threatened,
but these specJas have not yet been
proposed for listing. Tlie FWS works
with States and private partners to
carry out conservation actions for
candidate species to prevent their
further decline and possibly eliminate
~ need to list them as endangered or
d~reatened.
Reco~e~ --section 4
The law's ultimate goal is to "recover"
~pedes so they no longer need
protection under the Endangered
Species Act. The law provides for
recovery plans to be developed
~h~zrihhng the steps needed to restore a
s~ecies to health. Appropriate public
and private agencies and institutions
and other qualified persons assist in the
deYelopment and implementation of .
recovery plans. Involvement of the
public and interested "stakeholders" in
~levelopment of recovery plans is
eramuraged. Recovery teams may be
appointed to develop and implement
recovery plans.
Consugatice --Section 7
The larv requires federal agencies to
ccmsult with the Fish and Wildlife
Service to ensure that the actions they
authorJze~ fund, or carry out will not
jeopardize listed spedas. In the
relatively few cases where the FWS
determines the proposed action will
jeopardize the species, they must issue
a 'biological opLnion' offering
~reasonable and prudent alternatives"
about buw the proposed action could be
modified to avoid jeopardy to listed
species. It is a very rare exception where
projedts are withdrawn or terminated
because ofjeopardy to alisted species.
Critical Habitat --Section 4
The law provides for designation of
"critical liabitat~ for listed species when
judged to be 'prudent and
determinable". Critical habitat includes
geographic areas 'on which are found
those physical or biological features
essential to the conservation of the
species and which may require special
management considerations or
protection.~ Critical habitat may
include areas ru~t occupied by the
species at the time of listing but that
are essential to the conservation of the
species. Critical habitat designations
affect only federal agency actions or
federally funded or permitted
activities.
International Species --Section 8
Tlie Endangered Spades Act is the law
that implements U.S. participation in
the Convention on International Trade
in Endangered Species of Wild Fauna
and Flora (C][TES), a 130-nation
agreement designed to prevent species
from becoming endangered or extinct
because of international trade. The law
prohibits trade in listed species except
under CITES permits.
Exemptions --Section 10
The law provides a process for
exempting development projects from
the restrictions of the Endangered
Spedes Act. This process permits
completion of projects that have been
determined tojeopardlze the survival of
a listed species', if a Cabinet-leval
"Endangered Species Comrrdttee~
decides the benefits of the project
dearly outweigh the benefits of
conserving a spades. Since its creation
in 1978, the Committee has only been
convened three times to make this
decision.
Habitat Conse[~afion Plans .--se~ion 10
This provision of the ESA is designed
to relieve restrictions on private
landowners who want to develop land
inhabited by endangered species.
Private landowners who develop and
implement an approved "habitat
conservation plan~ providing for
conservation of the species can receive
an "incidental take permit" that allows
their development project to go
forward.
Definition o~ "Take" --Section 9
Section 9 oftha Endangered Species Act
makes it unlawful for a person to 'take' a
listed species, The Act says "The term
take means to harass, harm, pursue,
hunt, shoot, woand, kill, trap, capture, or
collect or attempt to engage in any such
conduct.~ The Secretary of the Interior,
through regulations, defined the term
"harm" in this passage as "an act which
actually kills or injures wildlife. Such act
mayinclude sigrdficant habitat
modification or degradation where it
actually kills or injures wildlife by
signffkantlyimpairing essential
behavioral patterns, including breeding,
feeding, or sheltering."
Compliance with Other Laws
The Endangered Species Act is not the
only law to protect species of wild
mammals, birds, reptiles, amphibians
and fishes, clams, snails, insects,
spiders, crustaceans, and plants. There
are many other laws with enforcement
provisions to protect decBning
populations of rare spades and their
habitat; such as the Marine Mammal
Protectian Act. the Migratory Bird
Treaty Act, and the Anadromous Fish
Conservation Act. The Lacey Act
makes it a federal crime for any person
to import, export, transport, sell,
receive, acquire, possess, or purchase
any fish. wildlife, or plant taken,
possessed transported or sold in
violation of any Federal, State, foreign
or Indian tribal law; treaty, or
regulation.
For More Information
For additional information about
threatened and endangered species and
current recovery efforts, contact the
U.S. Fish and W~ldlife Service at the
address below. Additional materials and
the current U.S. List of Endangered and
Threatened Wildlife and Plants is also
available over the Internet at
US, Fish & Wildlife Service
Enda~ered Species ~jam
4401N. Fairfax Drive, Rmxa 420
Arlington. VA 22203
'/03/358 2'~0
httlrJlendan~ered.f,.'~.gov
October
Endangered Species Fact Sheet
Bald Eagle
Other Protections if Delisted
The Bald and Golden
Eagle Protection Act
The Lacey Act
The Migratory Bird
Treaty Act
The bald eagle will continue to be protected by the Bald and Golden
Eagle Protection Act if it is delisted under the Endangered Species
Act. This law, originally passed in 1940, provides for the protection of
the bald eagle and the golden eagle (as amended in 1962) by prohibit-
ing the take, possession, sale, purchase, barter, offer to sell, purchase
or barter, transport, export or import, of any bald or golden eagle,
alive or dead, including any part, nest, or egg, unless allowed by
permit (16U.S.C 668(a); 50 CFR 22). "Take" includes pursue, shoot,
shoot at, poison, wound, kill, capture, trap, collect, molest or disturb
(16U.S.C. 688(c); 50 CFR 22.3). The 1972 amendments increased civil
penalties for violating provisions of th~ Act to a maximum fine of
$5,000 or one year imprisonment with $10,000 or not more than two
years in prison for a second conviction. Felony convictions carry a
maximum Frae of $250,000 or two years of imprisonment. The Frae
doubles for an organization. Rewards are provided for information
leading to arrest and conviction for violation of the Act.
Protections provided by The Lacy Act will continue if the bald eagle
is dellsted. This law, passed in 1900, protects bald eagles by making it
a Federal offense to take, possess, transport, sell, import, or export
their nests, eggs and parts that are taken in violation of any state,
tribal or U.S. law. It also prohibits false records, labels, or identifica-
tion of wildlife shipped, prohibits importation of injurious species and
prohibits shipment of fish or wildlife in an inhumane manner. Penal-
ties include a maximum of five years and $250,000 fine for felony
convictions and a maximum $10,000 fine for civil violations and $250
for marking violations. Fines donble for organizations. Rewards are
provided for information leading to arrest and conviction for violation
of the Act.
The Migratory Bird Treaty Act is a federal law that carries out the
United States' commitment to four international conventions with
Canada, Japan, Mexico and Russia. Those conventions protect birds
that migrate across international borders.
The take of ail migratory birds, including bald eagles, is governed by
the Migratory Bird Treaty Act's regulations. The Migratory Bird
Treaty Act (MBTA) prohibits the taking, killing, possession, transpor-
tation, and importation of migratory birds, their eggs, parts, and
nests except as authorized under a valid permit (50 CFR 21.11).
The Migratory Bird
Treaty Act (contd.)
Additionally, the Mt3TA authorizes and directs the Secretary of the
Interior to determine if, and by what means, the take of migratory
birds should be allowed and to adopt suitable regulations permitting
and governing take (for example hunting seasons for ducks and
geese).
Penalties under the MI3TA include a maximum of two years imprison-
ment and $250,000 fine for a felony conviction and six months impris-
onment or $5,000 fine for a misdemeanor conviction. Fines double if
the violator is an organization rather than an individual~ The MBTA
and its implementing regulations provide authority for the conserva-
tion of bald eagles and protect against take if the Endangered Species
Act protections are removed.
Peregrine FalcOn
(Falco peregrinus)
The peregrine falcon is
one of nature's swiftest
and most beautiful
birds of prey. Its name
comes from the Latin
word peregrinus,
meaning "foreigner" or
"traveler." This
impressive bird has
long been noted for its
speed, grace, and aerial
skills. No~ it is also a
symbol of America's
recovering threatened
and endangered
Three subspecies of the peregrine
faleon i~habit North America: the
American (Falco per egrlnus anatu m) ,
Arctic (Falco pereg~inus tundri~s), and
Peale's (Falco peregrines pealei).
Peregrine falcons are roughly crow-
sized--about 15 to 21 inches long~th
a wingspan of about 40 inches. As with
many raptors, or birds of pre~ females
are larger than males. Adults have slate
b~y wings and backs barred with
bt~k; pale undersides; white fares with
a black stripe on each cheek; and large,
elavk eyes. Younger birds are darker
bek~ and browner
Peregrine falcons live mostly along
m~mtain ranges, river valleys, and
coastlines. Historically, they were most
common in parts of the Appalachian
Mountains and nearby valleys from
New England south to Georgia, the
upper Mississippi River Valley, and
the Rocky Mountains. Peregrines
also iuhabited mountain ranges and
islands along the Pacific Coast from
Mex~es north to Alaska and in the
Arctic tondr~
The peregrine falcon also is found in
other parts of the world. Most
peregrines from northern Alaska,
Canada, and Greenland
migrate in the fall to
Cen~al and South
America. On the
way, they
often hunt
along the harrier islands on the Atlantic
and Gulf of Mexico coasts. Peregrines
that nest south of Canada migrute lesser
~, and some do not migsate at all
Peregrine falcons ganerally reach
breeding maturity at 2 years of age.
U~ the male arrives at a nesting
site and begins a series of aerial
asrohatic displays to attract a mate. An
average clutch of four eggs is laid in the
spring, hatching about a month later
Peregrines vigerousiy defend theft
nests, although they may abandon them
if severely or cantinuously harassed.
The nest is a scrape or depression dug
~n gravel on a cliff ledge. Rarely,
peregrines w~l nest in a tree cavity or
an oki stick nest. Some peregrines have
re~T~y ~ccepted manmade structures
as breeding sites. For example,
skyscraper ledges, tall towers, and
brkiges serve as the urban equivalent of
a e~ffledge. In 1988, 21 nesting pairs of
peregrines in various urban areas
~kroughout North America sueesssfully
fladged more than 40 young.
Peregrine falcons feed'primarily on
other birds, such as songbirds,
shorebirds, ducks, and--in urban
areas~-starlings and pigeons. Flying
b~h above their intended prey,
peregrines will "stoop" or dive and
str~e in mid-air, killing the prey with a
sharp blow. Scientists estimate the
speed of a diving peregrine to be more
than 200 miles per hour.
Peregrine falcons have never been very
abundant. Studies in the 1930s and
1940s estimated that there were about
~lO breeding pairs of peregrine falcons
~ the eastern United States and about
1,000 pairs in the West and Mexico.
Then, beginning in the late 1940s.
peregrine falcons suffered a
dev~tating and rupid decT~ne. Bythe
mid-1960s, the species had been
e~minated from nearly all of the
eastern U.S. Although less severe, the
decline spread west, where peregrine
]~/mI~tions ware reduced by 80 to 90
l~rceut by the mid-1970s. At that time.
e~fly the populations of Peale's falcons
nasfiog along the north Pacific Coast in
AJaska and British Coltunbia appeared
to be stable.
Se~entiats at the U.S. Fish and Wildiffe
~erviec's P~tuxent Wildlife Research
Center near Laurel. Maryland, began
im~estig~fing the peregrine's decline.
They found unusually high
concentrations of the pesticide DDT
and its breakdown product DDE in
peregrine falcons and other birds of
prw. The peregrines accumulated DDT
in their tissues by feeding on birds that
had eaten DDT-contaminated insects or
seeds. The toxic chemical interfered
with eggshell formatior. As a result,
falcons laid eggs with shells so thin
they often broke during incubation or
otherwise failad to hatch. Because too
few young were raised to replace adults
that died, peregrine populations
declined precipitously.
In 1970, the American and Arctic
peregrine falcon subspecies were listed
as endangered under the Endangered
Species Conservation Act of 1969 (the
law preceding the Endangered Species
Act of 1973), reflecting their critical
biological status. Becanse DDT and
other pesticides were not used in the
areas where Peale's peregrines live,
these falcons declined to a lesser degree
and were not ~isted. In addition, Peale's
peregrines were not susceptible to
picking up DDT in other areas because
they do not migrate and feed largely on
non-m~gratory prey,
In 1972, under the authorities granted
by the Federal Insecticide, Ftmgicide,
and Rodenticide Act (FIFRA), the
Environmental Protection Agency
(EPA1 banned DDT for most uses in
the U.S. Howeven DDE residues are
still found in some areas of the country
and DDT continues to be used in many
Latin American countries where some
peregrines and prey spend the winter.
The Fish and Wildlife Service
established peregrine falcon recovery
teams composed of Federuk state, and
independent biologists to recommend
actions necessarym restore peregrines
in the U.S. As part of recovery efforts,
scientists at Cornell University
successfully bred and ruised peregrine
falcons in c~pti~iW.
Under a cooperative effort among the
Fish and Vffidlife Service, state wildlife
agencies. The Peregrine Fand. Santa
Cruz Predatory Bird Research Group,
and the Midwestern Peregrine Falcon
Restoration Project, more than 6,000
American peregrines have been
released since 1974. Large-scale
reintroductions of peregrines have
ceased due to the peregrine's recovew,
and relatively few reintroductions are
still t~king place in the United States.
To release captive-bred peregrines,
young birds are placed in specially
equipped boxes on top of a manmade
tower or cliff ledge. At first, the birds
are fed through a chute so they cannot
see their human benefactors. When
they are old enough, the boxis opened
and the young peregrines begin testing
their wings. Their food is gradually
reduced as the young falcons learn to
hunt on their own. This process is
known as "hacking."
Arctic peregrine falcons declined by as
much as 80 percent; however, enough
survived the impacts of pesticides that
releases of captive-bred young were not
necessar~ Following EP~s restrictions
on the use of DDT and recovery efforts
under the Endangered Species Act,
Arctic peregrine numbers increased to
the point that the subspecies w~s
reclass~ed in 1984 from endangered to
the less c~tical c~tegery of threatened.
Then, in October 1994, the Fish and
Wildlife Service announced that the
Arc~c peregrine falcon had increased in
numbers to the point that this
subspecies no longer needed
Endangered Species Act protection and
coald safely be removed from the
threatened and endangered species list.
There are now thousands of Arctic
peregrines in North America, and the
majority of peregrines on the continent
belong to ~ subspecies.
Populations of peregrine falcons are
new estimated at 1,650 b~eeding pairs
in the U.S. and Canada, with additional
birds in Mexico. In August 1999. the
Fish and W~fldlife Servies removed the
American peregrine falcon from the Est
of endangered and threatened species,
marking one of the most dramatic
successes of the Endangered Species Act,
The protection afforded by the
Endangered Species Act, EP.~s use of
their authorities under FIFRA to
severely restrict the use of DD~ and
the rein~raductian of captive~ored
chicks have rescued the peregrine
falcon from extinction. A cleaner
em-.romnent and the success of
cooperative recovery efforts provkie
grear promise of a bright future for the
peregrine falcon in North America.
U.S. Fish & Wildlife Service
1 8O0/344 WILD
http://www, fws.g ov
September 1999
Fe&~ral Reglster/Vol. 66, No. 188/Thursday, September 27, 2001/Notices 49395
en~a~e consideration of conunents in
FDA's preparation of a final guidance,
Two copies of any comments are to be
s~bmittad, except individuals may
sabmlt one copy. Comments should be
identified with the docket number
fmmd in the brackets in the heading of
this domunent. A copy of the document
and received comments are available for
public ex~mln~tion in the Dockets
M~§ement Branch between 9 a.m. and
4 p.m., Monday thxough F~iday.
.~I. ~le~h~nic Access
P~sons with access to the Interest
may obtain the document at either bttp:/
£wv~v.fda.gov/cber/guldalines.h~n or
http:H www.fda.go v /ohrms/ dockets/
ffefanlthtm.
Da~ed: September 21, 2001..
Me.gent/iL Dotzel,
[t;~ Do~. 01-24181 Filed 9-2~-01; 8;45 am]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Substance Abuse and Mental Heatih
Services Administration
Center for Mental Health Services;
Notice of Meeting
Fttrsuant to Public Law 92-463,
notice is hereby given Of a Telephone
Conf~renc~ Call meeting of the Center
fe~ Mental Health Services (CMHS)
Nalianal Advisory Council in
Septmnber 2601.
The meeting will include the review,
discussion and evaluation of individual
grant applications. Therefore the
rose,Sug will be closed to the public as
determined by the A amlrdstrator,
SAMHSA, in accordance with Title 5
U.S.~ 5Szb(c)(6l and 5 U.&C. App.
Section
Substantive program information, a
summary of the meeting and a roster of
Conrail membem may be obtained from
the contact listed below.
Committee Name: Center for Mental
Health Services National Advisory
C.~a~il.
Meeting Date: September 24, 2001
[Closed}.
Time: 3 p.m.-4:20 p.m.
Place(s): Parklawn Building, 5600
Fishers Lane, Conference Room 17-94,
Rnakviae, Maryland 20857.
Contact: F, ileen S: Pensinger, M.Ed.,
5600 Fishers Lane, pafldawn Building,
R~oln 17C-27, Rockqrille, Maryland
20857, Talsplione: [301) 443-4823.
This notice is being published less
th~,, 15 days prior to the meeting due
to the urgent need to meet timing
limitations imposed by the review and
funding cycle.
Dated: September 21, 2001.
Toi~u Vanghn,
Committee Management Officer. Subs~nce
DEPARTMENT OF THE iNTERiOR
Fish and Wildlife Service
Proposed Monitoring Plan for
American Peregrine Falcons in the
United States
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Notice; reopening of comment
period.
SUMMA~a/: We, the U.S. Fish and
Wildlife Service (Service), provide
notice that the public comment period
is reopened for the Proposed Monitoring
Plan (Plan) for American peregrine
falcons in the United States. We are
reopeuing the comment period for an
additional 30 days to provide additional
time for interested parties to submit
written comments on the Plan.
DATES: The comment period, which
ori§inally closed on An,gust 30, 2001,
now closes on October 29, 2001.
ADD~I~$: Written comments and
other info.nation enncerning the
proposed American peregrine falcon
monitoring plan should be sent to
Robert Mesta, Sonoran Joint Venture
Coordinator, Office of Migratory Birds,
U.S. Fish and Wildlife Service, 12661 E.
Broadway Blvd., Tucson, Arlenna 85748
[facsimile (520) 258-7238; phone (520)
258-7227). Comments and materials
received will be available for public
inspection, by appointment, during
normal business hoots at the above
address. A copy of the proposed Plan is
available upon request from Robert
Mesta at (520) 258-7227, or the Chief,
Division of Consultation, Habitat
Conservation pinnnlng, Recovery, and
State Grants at [703) 358-2061. The
proposed Plan is alan available through
the intemet at (http://
endangered.fw's.gov/reenve~f/docs/
peregrine~moni~o~ng.pdf.
SUPPLEMENTARY INFORMATION:
Background
Section 4[g)(1) of the Endangered
Species Act of 1973, as amended (18
U.S.C. 1531 etseq.) [ESA), requires that
w~ implement a systam, in cooperation
with the States, to effectively monitor
for not less than 5 years, the status of
all species that have been recovered and
removed from the List of Endangered
and Threatened Species. Following its
recovery, the American peregrine falcon
vms removed from the List of
Endangered and Threatened Species on
August 25, 1999. On July 31, 2001, the
Sexwice published a Notice of
availab'~dty fc~ the proposed monitoring
plan that announced a 30-day public
comment period (66 FR 39523). In order
to meet the ~SA'$ monitoring
requirement and to facilitate the
efflclent collection of data, a sampling
method capable Of assessing the
population status of the American
peregrine falcon (Falco peregr/nus
anatum) will be implemented.
The proposed Plan was developed in
cooperation with State resource
agencies, recovery team members, and
interested scientists, and will be carried
out in collaboration with Federal, State,
and private cooperators.
knplementation of the Plan will begin in
the spring Of 2002. Sul~e~ys will be
conducted every 3 years for a total of 5
surveys. Monitoring will include the
collection of information on the
population trend and nesting success.
At the end of each trien~iai monitoring
period, we will review all available
information to determine the status of
the American peregrine falcon.
Pursuant to 50 CFR 424.1~(c){2), the
Service may extend or reopen a
comment period upon finding that there
is good cause to do so. Full participation
of the affected public in the review of
the Plan is deemed as sufficient cause.
Public Comments S°licited
The previous coramant period on this
proposal closed on August 30, 2001.
With the publication of this notice, we
reopen the public comment period.
Written comments may now be
submitted until October 29, 2001~ to the
Service office in the ADDRESSES section.
Anthorlty
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 etseq.).
Dated: September 12, Z801.
How states classify Their
Peregrine Populations
august 1999
Plat of Survey
Tollbridge Place
In the city of Dubuque Iowa
Sierra Club
Iowa Chapter
To: Soning Board of Adjustment
From:
Charles Winterwood
Chair
White Pine Group
Sierra Club
1555 Montrose Terrace
Dubuqeu Iowa 52001
o
ment imposed water use restrictions under the ESA; delta smelt
and winter-run salmon).
How the ESA Protects Endangered Species by Influencing Land Use De-
cisions: Section 9 and the Prohibition Against "Taking."
Section 9 of the Act reaches far beyond federal agencies to "any
person or agency" and prohibits the "taking" of any endangered
species of fish or wildlife. ESA § 9(a)(1)(B)-(C), 16 U.S.C.
§ l$38(a)(1)(B)-(C); 50 C.F.R. § I7.12; Palila v. Hawaii Dept. of
Land & Natural Resources, 471 F. Supp. 985 (D. Haw. 1979), affd,
639 F.2d 495 (9th Cir. 1981) (Palila 1); Palila v. Hawaii Dept. of Land
& Natural R~sources. 649 F. Supp. 1070 (D. Haw. 1986), affd, 852
F.2d 1106 (gth Cir. 1988) (Palila [I) (state action m maintaining feral
sheep which significantly impaired essential behavioral patterns con-
stituted "harm" resulting in "take" of the Pal~la, an endangered finch);
Marbled Murrelet v. Pacific Lumber Co, 880 F.Supp. 1343 (N.D. Cal.
1995)0ogging activities resulting in destruction and degradation of
habitat such that behavioral, breeding or nesting pa~tems ~vould be dis-
rupted constituted "harm" under ESA; logging pursuant to timber har-
vest plan enjoined).
Congress has the power under the Commerce Clause, U.S. Const. Art.
I, § 8, cl. 3, to proh/bit the '~taking'. of an endangered species on pti-
rate land. Gibbs v. Babbitts 214 F.3d 483 (4t~ Cir., 2000) (red wolf
(canis rufus)). See Cheever, lin Introduction to the Prohibition Against
Takings in Section 9 of the Endangered Species Act of 1972: Learning
to Live With a Powerful Species Preservation Law, 62 U. CoLo. L.REv.
109 (1991); Salzman, Evolution and Application of Critical Habitat
Under the Endangered Species Act, 14 HARV.ENVTL.L.REv. 311
( 1990); Annotation, Validity, Construction, and Application of Endan-
gered Species Act of 1973, 32 A.L.1L Fed. 332 (1977); Davison, Al-
teration of Wildlife Habitat As a Prohibited Taking Under the Endan-
gered Species Act, 10 J. LAND UsE & ENVT'L.L. 155 (1995).
"Take" is defined to mean "harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture or collect, or to attempt to
engage ia any such conduct." ESA § 3(19), t6 U.S.C.
§ 1532(19).
"Harm" is defined by the Secretary of the Interior as an
act which actually kills or injures wildlife. It may include
significant habitat modification or degradation where it ac-
tually kills or injures wildlife by significantly impairing es-
senfial behavioral patterns, including breeding, feeding or
sheltering. 50 C.F.R. ~ 17.3; Babbitt v. Sweet Home Chapter
289
2~
of Communities for a Great Oregon, 515 U.S. 687 (1995)
(Act's broad purpose of providing comprehensive protection
for threatened and endangered species supported inclusion of
habitat modification within the definitions of"harm"); Palila v.
Hawaii Dept. of Land & Natural Resources, 649 F. Supp. 1070
(13. Haw. 1986), affd, 852 F.2d 1106 (9th Cir. 1988) (Palila Il')
(same); Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex.
1988) (harm of timber management program does not neces-
sarily require proof of death of individ.,ual members of the spe-
cies; red-cockaded woodpecker) aff'd'in part, vacated in part,
sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (Sth Cir. 1991);
see Davison, Alteration of Wildlife Habitat As a Prohibited
Taking Under the Endangered Species Act, 10 J.L^i'ID USE &
ENVTL.L. 155 (1995).
The Supreme Court has held that the Act's broad purpose of providing
comprehensive protection for endangered and threatened species sup-
ports the inclusion of habitat modification within the definition of
"harm". Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 5.15 U.S. 687 (1995); Griffin Beyond "Harm": Abandoning
the Actual Injury Standard for Certain Prohibited Takings Under the
Endangered Species Act by Giving Independent Meaning to Harass-
ment, 52 VAND. L.REv. 1831 (1999); Quarles, MacLeod & Lundquist,
Sweet Home and the Narrowing of Fr2ldlife "Take" Under Section 9 of
the Endangered Species Act 26 ELR 10003 (1996); Casenote & Com-
ment, Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon n.l: Defining "Harm" Under Section 9 of the Endangered
Species Act, 32 ID~fflO L.RI~v. 81 (1995). The Ninth Circuit has held
that a school district's proposed construction of a new high school in
an endangered pygmy owl (cactus ferruginous) habitat would not
cause a "taking" as the owl had not been found within the site. De-
fenders of F/ildlife v. Bernal, 204 F.3d 1477 (9m Cir., 2000).
Examples of the ESA's Impact on Private Development. Projects
impacted by the ESA include:
440-room hotel and convention center, high-rise residential
buildings on San Diego Bay; highway and flood control proj-
ect; Sierra Club v..Marsh, 816 F.2d 1376 (9th Cir.
1987)(California least tern and light-footed clapper rail);
2,235 residential unit development on San Bruno Mountain;
Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976
(gth Cir. 1985)(Mission Blue butterfly);
290
17-1ot residential subdivision; Maine Audubon Society v.
Purslow, 672 F. Supp. 528 CD. Me. 1987)(bald eagle) affd 907
F.2d 265 (1s~ Cir., 1990); and
9,000 homes, four golf courses and three resort hotels in Dove
Mountain development in Pima County, Arizona. Cart, "Arri-
val of Owl Stirs a Hornet's Nest," LOS ANGELES TIMES, A-5,
col. 1, Feb. 17, 2000.
In Strahan v. Coxe, 127 F.3d 155 (1st Cir., 1997) the First Circuit held that the
Act extended to the issuance of fishing licenses that indirectly authorized the
taking &the Northern Right Whale. In Loggerhead Turtle v. County Council
of Volusia County, Florida, the 11th Circuit held that the County could be held
liable for approving a beach lighting system that adversely affected turtle
nesting. 148 F.3d 1231 (11~h Cir., 1998).
Further examples and discussion are provided in Coggins & Russell, Beyond
Shooting Snail Darters in Pork Barrels: Endangered Species and Land Use in
America, 70 GEO.L.J. 1433 (1982).
III. HOW THE ESA IS ENFORCED: LITIGATION UNDER TI-IE ESA.
Ao
Federal Enforcement. Section 11 of the Act, 16 U.S.C. § 1540, authorizes
enfomement by the federal government and by citizen suit. This paper will
concentrate on citizen suit enfomement.
Federal Courts. The federal Endangered Species Act has the preeminent role
in this area of the law. This has given the federal courts a virtual monopoly
on endangered species litigation. Some of the federal cases have attracted
great public interest. The most famous are the snail darter case, TVA v. Hill,
437 U.S. 153 (1978) (Tellico Dam completion enjoined, snail darter) and the
"Sweet Home" case, Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, 515 U.S. 687 (1995) (upholding 50 CFR § 17.3 defining
"harm" to include habitat modification; red-cockaded woodpecker, northera
spotted owl); Casenote & Comment,. Babbitt v. Sweet Home Chapter of Com-
munities for a Great Oregon n.l: Defining "Harm" Under Section 9 of the
Endangered Species Act, 32 IDAHO L.R~v. 81 (1995). Some have been re-
petitive: Palila v. Hawaii Dept. of Land & .¥atural Resources, 471 F. Supp.
985 (D. Haw. 1979), affd, 639 F.2d 495 (gth Cir. 1981) (Palila 2); Palila v.
Hawaii Dept. of Land & Natural Resources, 649 F. Supp. 1070 CD. Haw.
1986), afl'd, 852 F.2d 1106 (gth Cir. [988) (Palila 12) (state action in main-
tain~g feral sheep that significantly impaired essential behavioral patterns
constituted "harm" resulting in "take" of the Palila).
10