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News Release

Settlement Reached for Restoration of Variegate Darters and Their Habitat

Commonwealth's Attorney Tamara Neo's strong case was key to the successful outcome

Grundy, VA — On April 9, 2009, the Virginia Department of Game and Inland Fisheries (VDGIF), in coordination with Buchanan County Commonwealth's Attorney Tamara Neo, settled a criminal case stemming from the unauthorized take of variegate darters, a Virginia endangered species, from Levisa Fork in Buchanan County on May 27-28, 2008.

Commonwealth's Attorney Neo headed the negotiated settlement. The criminal case was taken under advisement for one year. Potesta & Associates, Inc., has agreed to pay $45,000 to the State Nongame Fund for restoration of variegate darters and/or their habitat, a significant settlement for a state endangered species in Virginia. The figure was arrived at with assistance from the U.S. Fish & Wildlife Service and Conservation Fisheries, Inc., (CFI) a nonprofit group that cultivates rare and endangered freshwater fishes.

Wildlife Resources Bureau Director David Whitehurst commented about the case, "Tamara Neo, the Commonwealth's Attorney of Buchanan County, was instrumental in negotiating this settlement. Her efforts and commitment to this case directly contributed to acquiring the needed restitution for work to restore the variegated darter population and its habitat."

"The variegate darter is one of Buchanan County's precious natural resources. I'm pleased to have been a part of protecting it," Neo said.  "I am also quite proud of all the work our VDGIF personnel put in on this matter. It seemed like we had half of their Richmond and Southwest Virginia employees here for the hearing. A special thank you should also be made to the U.S. Fish and Wildlife Service for permitting one of their resource equivalency experts to travel all the way here to help place a value on our little variegate darter."

The Investigation

On May 27, 2008, VDGIF Senior Conservation Police Officer James Hale, acting on information developed by the Department's Wildlife Diversity staff, began an investigation into permit violations by employees of Potesta & Associates. Representatives from the corporation were suspected of intentionally capturing variegate darters. While patrolling the Levisa Fork, Officer Hale found five Potesta workers with the fish in their possession. All but one of the variegate darters were dead. When he learned that the group planned to be collecting samples on the river all week, he coordinated with his captain and the regional wildlife diversity biologist who oversees threatened and endangered species to monitor their work.

The next day, May 28, 2008, the group was observed using several practices that were unprofessional, unethical or illegal. Ultimately, the case resulted in a total of 150 warrants for unlawful possession of a threatened and endangered species and permit violations against the five individuals taking fish samples for Potesta. Thirty-seven warrants were taken out against Potesta & Associates, Inc. for unlawful possession of threatened or endangered species and permit violations.

The Settlement
 
On April 9, 2009, the Commonwealth's Attorney in Buchanan County, Tamara Neo, and Potesta & Associates entered a plea agreement in which the following agreement was made:  Two subjects had all charges Nolle Prosequi due to the fact they were under the direction of "experienced supervision" and knew nothing of the permit and its stipulations. Three subjects each agreed to a sentence of 12 months of good behavior, with no problems related to threatened and endangered species, permits and aquatic wildlife.  Potesta & Associates agreed to restitution in the amount of $45,335 to VDGIF and $270.60 to CFI, for consulting fees. Additionally, Potesta & Associates have agreed all Potesta project personnel, biologists and field personnel must complete appropriate training in scientific collection techniques as outlined and approved by VDGIF prior to applying for any new Scientific Collection, Threatened & Endangered Species, or Salvage permits. Potesta has a 12 month sentence suspended upon compliance with terms of the settlement, one of which is that they may not reapply for a permit during that 12 month advisement period. Upon conclusion of the criminal case, on April 9, 2010, and confirmation of appropriate training, Potesta & Associates staff may reapply for scientific collection permits from the Department.

Why Variegate Darters are Important

In Virginia, the variegate darter (Etheostoma variatum) is listed as a state endangered species and occurs only in the Big Sandy Drainage of Buchanan and Dickenson counties. The colorful, bottom-dwelling fish lives in the fast flowing riffles and runs of rivers and streams. While this species only reaches a maximum length of 4.5 inches, it serves important functions in its environment. On the stream bottom, darters feed exclusively on small immature insects and mites and are themselves fed upon by larger organisms, thereby moving energy up the food chain. Additionally, darters are very sensitive to pollution, so a diverse and abundant population is an indicator of good water quality. As a group, darters, including the variegate, are only found in North America, which makes them a unique component of America's wildlife.

Restoration Work

With funds received through this settlement, VDGIF will evaluate and then implement selected projects to protect and to recover the species. Potential projects include species propagation, habitat restoration and educational outreach. Species propagation would entail collecting brood stock from the wild and producing young in a fish hatchery. These young would be grown to one year old before being released back into the river. Habitat restoration would require repairing areas along the river that suffer from excessive erosion and sediment. Sloping steep banks, installing fiber mats, and planting trees are some of the methods to improve habitat for the species. Lastly, educational outreach will target the citizens that share the watershed with the darter. The main education message that needs to be sent is that both people and darters benefit from good water quality.

About VDGIF

It is the mission of the VDGIF to maintain optimum populations of all species to serve the needs of the Commonwealth; to provide opportunity for all to enjoy wildlife, inland fish, boating and related outdoor recreation and to work diligently to safeguard the rights of the people to hunt, fish and harvest game as provided for in the Constitution of Virginia; to promote safety for persons and property in connection with boating, hunting and fishing; to provide educational outreach programs and materials that foster an awareness of and appreciation for Virginia's fish and wildlife resources, their habitats, and hunting, fishing, and boating opportunities.