While a number of Endangered Species Act (ESA) reform bills continue to wind their way through Congress (see our May 6, 2015 post), yesterday, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced their own plan to “increase regulatory predictability, increase stakeholder engagement, and improve science and transparency” when acting on petitions to list, uplist, downlist, or delist a species, as well as petitions to revise critical habitat designations. Rather than revising the ESA itself, as some in Congress have suggested is necessary, FWS and NMFS have proposed to “maximize efficiency” and “make the best use of available resources” by revising the regulations governing the petition process. The revisions identified in the proposed rule include, among others:
- Only One Species: Requiring that a listing petition address only one species;
- Prior Notice to States: Requiring that any petition submitted to FWS pertaining to a proposed listing action for a species found in the United States certify that a copy of the petition was provided to the state agencies responsible for management and/or conservation of the fish, plant, or wildlife resource in each state where the species occurs at least 30 days prior to submission to FWS;
- Incorporation of State Information: Requiring that any petition submitted to FWS pertaining to a proposed listing action for a species found in the United States include any information, data, or written comments provided by the state agencies responsible for management and/or conservation of the fish, plant, or wildlife resource;
- Incorporation of Readily Available Information: Requiring that any petition pertaining to a proposed listing action for either FWS or NMFS certify that the petitioner has gathered all relevant information readily available, including from websites maintained by the affected states; and
- Consideration of Information in Agency’s Possession: Expressly authorizing FWS and NMFS to consider information that is readily available in the relevant agency’s possession at the time it makes a 90-day finding.
In addition to the above procedures, the proposed rule would also establish various standards and considerations, including a proposed “substantial information” standard for listing related decisions, and a proposed list of factors that may be considered when determining how to proceed on a petition to revise critical habitat.
As for the impacts associated with the proposed revisions, FWS and NMFS state in the proposed rule that “[w]hile some of the changes may require petitioners to expend some time (such as coordination with State(s)) and effort (providing complete petitions), we do not expect this will prove to be a hardship, economically or otherwise.” Environmental organizations, however, do not appear to agree, as the Center for Biological Diversity has stated that the proposed regulations “would place crippling burdens on citizens filing petitions to protect species . . . .”
The 60-day comment period for the public to submit comments on the proposed rule will begin when the proposed rule is published in the Federal Register, which will likely happen later this week.
This Friday, May 15th, marks the 10th anniversary of Endangered Species Day. Events are scheduled throughout the country to recognize conservation efforts to protect endangered species and their habitats, which have occurred primarily as a result of the federal Endangered Species Act of 1973. For example, zoo staff at the Naples Zoo in Florida will be working to educate guests about the endangered animals living at the zoo, including Malayan tigers, cheetahs, and leopards.
Conservation groups are taking the opportunity to raise funds for endangered species conservation. The World Wildlife Fund has set up a Twitter campaign that raises money each time an endangered species emoji is tweeted. Project AWARE has introduced the My Ocean Challenge asking donors to raise funds to protect marine species.
To find an event near you celebrating the day, click here.
Nossaman is pleased to announce that it has reinforced its nationally renowned endangered species practice by adding a team of attorneys, led by Alan Glen and Steve Quarles, that also includes J.B. Ruhl, Brooke Wahlberg, Rebecca Barho, and Sarah Wells. More details are provided in this press release.
On May 6, 2015, the Senate Environment and Public Works Committee held a hearing on several Endangered Species Act (ESA) reform bills, including at least three that are similar to bills introduced in 2014 in the House of Representatives. The bills that were discussed include the following:
- S.112 – Entitled the “Common Sense in Species Protection Act of 2015,” the bill would require the U.S. Fish and Wildlife Service to consider short-term economic costs when protecting critical habitat for endangered species.
- S.292 – Entitled the “21st Century Endangered Species Transparency Act,” the bill would require the U.S. Fish and Wildlife Service to publish on the Internet all data used for an endangered species listing decision.
- S.293 – The bill would amend the ESA to establish a procedure for approval of certain settlements.
- S.655 – The bill would prohibit the use of funds by the Secretary of the Interior to make a final determination on the listing of the northern long-eared bat.
- S.736 – Entitled the “State, Tribal, and Local Species Transparency and Recovery Act,” the bill would redefine the “best scientific data” to include data provided by states, tribal governments, or localities.
- S.855 – Entitled the “Endangered Species Management Self-Determination Act,” the bill would, among other things, require the consent of the governor of each state in which a species is present prior to listing the species under the ESA.
- S.1036 – The bill would require the Secretary of the Interior and the Secretary of Agriculture to provide certain Western States assistance in the development of statewide conservation and management plans for the protection and recovery of sage-grouse species, and for other purposes.
For information on the versions of the bills previously introduced in the House of Representatives, please see our posts dated March 30, 2015, February 17, 2015, and July 30, 2014.
On May 1, 2015, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the wildlife agencies) issued a final rule amending the regulations governing consultation under section 7 of the Endangered Species Act (ESA) in order to codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion. The final rule also provides that consultations on programmatic actions that would not result in incidental take without specific future actions will not be accompanied by incidental take statements. The rule establishes basic standards that the agencies must follow to use surrogates, but it affords the wildlife agencies a substantial degree of latitude when doing so. As a consequence, the agencies may be expected to use proxies, such as impacts to habitat, in lieu of limits tied to take of individuals or a portion of the population.
Section 7(b)(4) of the ESA provides, where a federal agency action and anticipated incidental take will not violate section 7(a)(2), the pertinent wildlife agency will issue an incidental take statement that, among other things, “specifies the impact of such incidental taking on the species.” In the preambles to both the proposed and final rules, the wildlife agencies acknowledge that Congress expressed a preference for numerical limits with respect to individuals of the listed species. At the same time, the wildlife agencies conclude that in some circumstance use of surrogates, or indicators, may be acceptable as an alternative to numerical estimates of individuals. Consistent with the proposed rule, the preamble to the final rule states “evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species.”
The text of the final rule goes on to indicate that surrogates may be used, provided the biological opinion or incidental take statement: (1) describes the causal link between the surrogate and take of the listed species; (2) describes why it is not practical to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of the listed species; and (3) sets a clear standard for determining when the extent of taking has been exceeded. In response to comments, the wildlife agencies expounded on these requirements, stating “use of a surrogate in an incidental take statement is predicated on a finding that measuring take impacts to a listed species is not practical and on establishing a link, based on best available scientific information, between effects of the action to a surrogate and take of the listed species.” Further, the wildlife agencies indicated their intent to prepare implementation guidance for the use of surrogates and to consider Murphy and Weiland (2014) when doing so, though they did not provide a timeframe for such action. Despite the issuance of the rule, it is likely that there will continue to be litigation over the use of surrogates by the wildlife agencies, particularly in high-stakes cases where the agencies have not documented that the surrogate and target species will respond similarly to salient environmental phenomena.
In a decision issued April 28, 2015, a U.S. District Court for the District of Columbia dismissed an action challenging the U.S. Forest Service’s (Service) 2012 National Forest Planning Rule (Planning Rule). The Service is responsible for managing all federally owned forest and range lands, as well as the species that reside on those lands, pursuant to a three-tiered system established by the Organic Administration Act (OAA), the Multiple-Use Sustained-Yield Act (MUSYA), and the National Forest Management Act (NFMA). This three-tier system consists of: (1) a nationwide Planning Rule, (2) specific forest management plans, and (3) project-level decisions. The Planning Rule establishes the framework for the forest management plans. As of 2012, approximately 32% of species listed under the Endangered Species Act were known to use or occur on national forest lands, making the Planning Rule and the management plans developed thereunder important for listed species. (History of Endangered and Threatened Species on National Forest System Lands (pdf).)
In the case, plaintiffs, a coalition of timber, ranching, and recreation interests, alleged that the Planning Rule violated the OAA, MUSYA, and NFMA by prioritizing “ecosystem services” and “ecological sustainability” above the other competing uses of national forest lands. Plaintiffs further alleged that the Service violated the Administrative Procedure Act by failing to include certain definitions in the proposed rule that appear in the final version of the Planning Rule. Defendants argued that plaintiffs lacked standing to pursue the lawsuit and that the controversy was not ripe for judicial review.
Ultimately, the D.C. District Court dismissed the lawsuit on standing grounds, finding that plaintiffs failed to establish the three elements of article III standing. Article III standing requires plaintiffs to have a concrete and particularized injury that can be causally linked to defendants’ action and can be redressed by an action of the court. Because plaintiffs could not establish a concrete or particularized injury that the Planning Rule would cause to any one of their members, the court reasoned that there was no injury to which the court could provide relief. Finally, the court also found that the Service’s failure to include three definitions in the proposed rule provided for public comment also did not rise to the level of a redressable injury, noting that plaintiffs’ generalized fears about these definitions being used to limit timber harvest or to restrict future opportunities to comment on forest management plans fell short of rising to the level of a procedural injury.
On April 27, 2015, the Chairman of the House Armed Services Committee, released the text (pdf) of the National Defense Authorization Act (Act), including language that would ban the U.S. Fish and Wildlife Service (Service) from issuing its listing decision for the greater sage-grouse (Centrocercus urophasianus) under the Endangered Species Act (ESA) through September 30, 2025. The Act would also limit the application of federal conservation plans for the species.
As we previously reported, the greater sage-grouse is a candidate species under the ESA. In 2010, the Service determined that protection of the species was “warranted but precluded.” The Service proposed listing the greater sage-grouse as threatened under the ESA in 2013. The Bureau of Land Management, several states, and landowners have been working together to establish state habitat protection plans in an effort to stave off the listing of the species.
The Act’s stated purpose is to foster greater coordination between the states and the federal government regarding management plans for the greater sage-grouse. To that end, the Act would prohibit the Service from amending any federal resource management plan applicable to federal lands in a state that has notified the Service that it has a management plan in place. It would also require the Service to submit an annual report to the House Natural Resources Committee regarding the effectiveness of systems monitoring the status of the sage-grouse on federal lands under its jurisdiction through 2021.
In addition to providing states flexibility in imposing their own plans, the language’s sponsor, Representative Rob Bishop (R-Utah), contends that listing the species would subordinate the needs of the United States military “to an extreme environmental agenda.” He has claimed that restrictions imposed due to sage-grouse protections “are currently costing the Department of Defense millions of dollars and impacting critical training and support activities at numerous installations across the country.”
Environmental groups contend that the Act would undermine current efforts to protect the greater sage-grouse on nearly 60 million acres of public lands. They also challenge the contention that a listing determination would have an adverse effect on the military. A letter signed by multiple environmental groups states, “The Department of Defense did not request this provision, nor will it benefit from it.” The letter also claims that the language “inappropriately rescinds federal authority on public lands, could wipe out populations of greater sage-grouse across much of the West, and could further jeopardize the existence of the species.”
Last week, Washington State Representative Dan Newhouse introduced the “Pacific Northwest Gray Wolf Management Act” (H.R. 1985), which would remove Endangered Species Act (ESA) protection for the gray wolf (Canis lupus) within Washington, Oregon, and Utah. H.R. 1985 is the third bill introduced in the 114th Congress (2015-2016) proposing to delist the gray wolf within specified states. H.R. 843 and H.R. 884, introduced in February, would effectively delist gray wolves in Minnesota, Wisconsin, and Michigan and in the Western Great Lakes region and Wyoming, respectively. While H.R. 884 does not define the span of the “Western Great Lakes region,” the U.S. Fish and Wildlife Service (Service) has defined the region to include Michigan, Minnesota, Wisconsin, and the Red Lake Reservation.
In 1987, the Service classified the gray wolf as endangered throughout the contiguous United States except in Minnesota, where the Service classified the gray wolf as threatened. Whereas prior agency efforts to delist the gray wolf in the Great Lakes Region have failed, legislation removing ESA protection for gray wolves has been upheld in federal court.
While the larger controversy is far from over, for the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus), the controversy does appear to be put to rest. In 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list the bi-state population as threatened under the Endangered Species Act (ESA). In the proposed rule, the Service stated that the bi-state population was genetically distinct and geographically isolated from other greater sage grouse populations, and warranted protection under the ESA primarily because of impacts to habitat from a variety of sources, including urban and energy development. (For a further discussion of the listing proposal and controversy, see our prior posts on October 29, 2013 and January 9, 2014.) On April 21, 2015, the Service announced that it had withdrawn its proposal to list the bi-state population, citing a conservation plan developed by the Bi-State Local Area Working Group, which has secured approximately $45 million in funding, as a “key factor” in the decision. Along with the listing proposal, the Service withdrew its proposed section 4(d) rule and proposed designation of critical habitat.
As for the greater sage-grouse populations in other states, the announcement notes that a listing determination will likely be issued in September 30, 2015.
On April 17, 2015, the United States Court of Appeals for the Tenth Circuit affirmed a district court decision upholding the U.S. Fish and Wildlife Service’s (FWS) approval of a roadway project in the Rocky Flats area of Denver, Colorado. WildEarth Guardians v. U.S. Fish and Wildlife Service, Nos. 12-1508 and 12-1509, slip. op. (10th Cir. Apr. 17, 2015) (pdf). The Rocky Flats, comprised of approximately 6,200 acres in Colorado, was previously used by the Department of Energy to manufacture components of nuclear weapons. The land became polluted by various hazardous materials, which largely remained unaddressed until Congress passed the Rocky Flats Act (Act) in 2001. Pursuant to the Act, the land was subject to a large-scale cleanup, and ultimately transferred to FWS. Working with a consortium of local governments, FWS approved a project involving the dedication of certain lands as a National Wildlife Refuge, with other lands – approximately 100 acres – to be developed as a roadway in the Denver metropolitan area.
Plaintiffs challenged FWS’s approval of the roadway project, arguing, among other things, that FWS violated the Endangered Species Act (ESA) by failing to issue an incidental take statement (ITS) with respect to the threatened Preble’s Meadow Jumping Mouse. Pursuant to section 7 of the ESA, FWS issued two biological opinions concluding that the proposed roadway would not jeopardize the continued existence of the mouse or adversely modify its critical habitat. Plaintiffs argued FWS was also required by law to issue an ITS as part of the section 7 consultation process.
The Tenth Circuit rejected plaintiffs’ assertion, finding FWS was “not legally required” to issue an ITS for the project because it concluded in the biological opinions that the proposed project “will not result in incidental take” of the mouse. Citing Ninth and Eleventh Circuit precedent, the court reasoned that the plain terms of the statute and regulations suggest that, at least where there is no evidence that a take may occur, FWS need not issue an ITS. However, the court declined to “definitively” rule on this point, finding evidence in the record that FWS had in fact issued an ITS as part of the biological opinions issued for the project.