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Endangered Species Law and Policy

Endangered Species Act Roundup: More Rules

Posted in Fish & Wildlife Service, Listing

Last week, the U.S. Fish and Wildlife Service (Service) published three new rules, continuing its flurry of activity from December as we previously noted here and here.  Below are the latest final and proposed rules issued by the Service.

January 16, 2015 – The Service issued a final rule listing the Mexican wolf (Canis lupus baileyi) (pdf) as endangered under the Endangered Species Act (ESA).  The Mexican wolf is a subspecies of the gray wolf that was listed as endangered in the southwestern United States and Mexico in April of 1976.  When the gray wolf was listed as endangered in 1978, it subsumed the Mexican wolf subspecies listing.  The Service proposed to delist the gray wolf in June 2013, which necessitated this final rule.  The Service identified illegal shooting of Mexican wolves as significantly affecting the species.  Additionally, the Service concluded that the species is significantly affected by inbreeding, loss of heterozygosity, loss of adaptive potential, and small population size.

In addition to the final rule listing the Mexican wolf, the Service also published a final rule to revise the regulations (pdf) for the nonessential experimental population of the Mexican wolf under Section 10(j) of the ESA.  The Service: (1) modified the geographic boundaries in which the experimental population of Mexican wolves are managed; (2) modified the management regulations that govern the initial release, translocation, removal, and take of Mexican wolves; and (3) issued a permit under Section 10 of the ESA for management of Mexican wolves both inside and outside of the Mexican Wolf Experimental Population Area.

January 16, 2015 – The Service published a proposed rule (pdf) to create a species-specific rule under authority of section 4(d) of the ESA that provides measures necessary and advisable to provide for the conservation of the northern long-eared bat (Myotis septentrionalis), should the Service determine that the species is a threatened species under the ESA.  Under section 4(d) of the ESA, the Secretary of the Interior has discretion to issues such regulations as she deems necessary and advisable to provide for the conservation of the species.  Although the Service has not yet made a final listing determination for the northern long-eared bat, it proposed the species-specific rule in the event that the final listing determination is to list the species as threatened.  If the Service lists the species as threatened, it intends to publish a final section 4(d) rule concurrent with, and as a component of, the final listing rule.

The proposed rule prohibits purposeful take of the species throughout its range except in instances of removal of northern long-eared bats from human dwellings and authorized capture and handling of northern long-eared bats by individuals permitted to conduct these activities for other listed bats.  The rule would except incidental take of the species from otherwise lawful activities in areas not affected by white nose syndrome (WNS), a disease affecting many U.S. bat populations.  In areas affected by WNS, all incidental take prohibitions would apply, except incidental take attributable to forest management practices, maintenance and limited expansion of transportation utility and rights-of-way, removal of trees and brush to maintain prairie habitat, and limited tree removal projects, provided these activities  protect known maternity roosts and hibernacula.  Removal of hazardous trees for the protection of human life or property are also excepted from the take prohibitions.  The Service also announced that it is reopening the public comment period on its October 2, 2013 proposed rule to list the northern long-eared bat as an endangered species.

Endangered Species Act Year End Roundup: FWS Issues Findings on A Listing Petition and NMFS Issues A Correction

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service

Coming in just under the wire for the New Year, the U.S. Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) published new rules today, making December a very busy month for Endangered Species Act (ESA) listing decisions. Below are the latest items from FWS and NMFS to be published in 2014.

December 31, 2014 – FWS issued a 90-day finding on a petition to list the Monarch Butterfly (Danaus plexippus plexippus) as a threatened species under the ESA.  FWS found that the information and sources cited in the petition present substantial commercial or scientific information that indicates listing the Monarch Butterfly may be warranted under listing factors A, B, C, and E of ESA section 4(a)(1). FWS is seeking additional information on listing factors for the Monarch Butterfly from now through March 2, 2015, but declined to issue an emergency rule temporarily listing the butterfly as threatened.  After reviewing all of the new data, FWS will issue a 12-month finding on the petition.

December 31, 2014 – NMFS issued a correction to its final rule listing five species of Sawfish as endangered.  The final rule, published on December 12, 2014 and reported on this blog, inadvertently included an instruction to delete the U.S. Distinct Population Segment of Smalltooth Sawfish (Pristis pectinata) from the list of endangered species under the ESA.  This correction removes language from the regulatory text that caused the Smalltooth Sawfish to be de-listed.  The correction will be effective January 12, 2015.

Fish & Wildlife Service Finds That Gnatcatcher Delisting May Be Warranted

Posted in Delisting, Fish & Wildlife Service, Uncategorized

Continuing the quarter century controversy over the listing of the Coastal California gnatcatcher (Polioptila californica californica) as a threatened subspecies, the U.S. Fish & Wildlife Service (FWS) has concluded that a petition to delist the gnatcatcher may be warranted. (Federal Register PDF).   The petition asserts that the listing of the Coastal California gnatcatcher as a distinct subspecies is not based on the “best scientific data available” as is required by the Endangered Species Act.  Nossaman prepared the petition on behalf of the National Association of Home Builders and the California Building Industry Association.

The petition is based on a recent peer-reviewed and published paper authored by Professor Robert Zink of the University of Minnesota and Dr. George Barrowclough of the American Museum of Natural History and their colleagues. The 2013 study analyzed the nuclear DNA obtained from gnatcatcher specimens throughout the range of the species (Southern California south to the tip of Baja California, Mexico).  The study concludes that there is no genetic basis for maintaining a subspecies classification for the Southern California gnatcatchers.   Rather, members of this putative subspecies should be considered part of the same taxonomic grouping as the species Polioptila californica, which ranges from Ventura County in Southern California to the southern tip of Baja California, Mexico.

FWS listed the gnatcatcher as a threatened subspecies in 1993. The listing largely relied on analysis of physical measurements such as feather coloration of gnatcatcher museum specimens collected by the petitioner for the listing, Dr. Jonathan Atwood.   During the debate over the listing, Dr. Atwood acknowledged that the subspecies designation for the Southern California gnatcatcher was central to the listing decision because “[n]o credible scientist would claim or has claimed that California gnatcatchers as a species are endangered or threatened throughout their entire range.”  Several scientists at the time testified that the determination of whether the gnatcatchers in southern California were part of a distinct subspecies required analysis of gnatcatcher genetics.

In 1994 a federal court determined that the FWS had violated the Administrative Procedure Act and the ESA in refusing to provide the public with an opportunity to review and comment on morphological data relied on by the Service in the listing decision. Endangered Species Comm. v. Babbitt, 852. Supp. 32 (D.D.C. 1994).   After the court’s decision the Service made the data available and relisted the gnatcatcher.

In 2000 Dr. Zink and other scientists (including Dr. Atwood) published an analysis of gnatcatcher mitochondrial DNA (passed on to offspring by female gnatcatchers) that concluded that the coastal California gnatcatcher was not a distinct subspecies.  The Service reviewed the paper and concluded that analysis of nuclear DNA was required to resolve the issue.  The 2013 Zink et. al. paper analyzes nuclear DNA as requested by FWS.

The listing of the gnatcatcher triggered an unprecedented twenty-year conservation planning process in Southern California that continues today. This planning process has included the approval of numerous habitat conservation plans (HCPs) and natural community conservation plans (NCCPs) in Orange, Riverside, and San Diego counties. Collectively, these plans regulate land-use on millions of acres. The plans have resulted in the establishment and management of regional conservation reserves of several hundred thousand acres of the coastal sage scrub habitat of the gnatcatcher and other species covered by the plans.

The deadline for comments on the FWS finding and the delisting petition is  March 2, 2015.

Federal Court Holds U.S. Fish and Wildlife Service Violated Endangered Species Act by Delisting Gray Wolf in Nine States

Posted in Court Decisions, Fish & Wildlife Service

The United States District Court for the District of Columbia recently held (pdf) that the U.S. Fish and Wildlife Service (Service) violated the Endangered Species Act (ESA) when it issued a final rule delisting gray wolves in nine states (Final Rule) because the Service’s interpretation of the ESA, particularly its identification of a Distinct Population Segment (DPS) to support delisting, was unreasonable.  Humane Society of the United States v. Jewell, Case No. 13-186 (D.D.C. Dec. 19, 2014).

The Final Rule, which took effect in January 2012, is the Service’s fourth attempt to delist the DPS at issue in the case.  The court began its decision with a discussion of the ESA’s general statutory framework and the history of efforts to protect the gray wolf, followed by an overview of previous attempts by the Service to delist the wolf population.  A brief summary of the history of the Service’s treatment of the gray wolf can be found here.  After multiple district courts had struck down the Service’s previous efforts to delist populations of the gray wolf, the Service tried again in 2011.  The Final Rule established a DPS of gray wolves known as the “western great lakes DPS,” which encompasses Minnesota, Wisconsin, Michigan, and parts of six other states. The Service delisted the DPS on the grounds that wolves from the DPS were not facing extinction and were not likely to face extinction in the foreseeable future.

As an initial matter, the court rejected the defendants’ procedural attack and held that the plaintiffs had standing to sue.  Defendants argued that plaintiffs lacked standing because they could not demonstrate that delisting gray wolves would reduce gray wolf populations and thus wolf sightings, and thus the plaintiffs failed to demonstrate the required harm.  The court disagreed, however, noting that data from Wisconsin and Michigan demonstrated that wolf populations have diminished in areas where hunting them had been made legal.

Turning to the substantive issues, the court held that the Service’s interpretation of the ESA was unreasonable, and in violation of the Administrative Procedures Act, for two reasons: (1) the structure, history, and purpose of the ESA do not permit the designation of a DPS for the purpose of delisting species that are member of the DPS, and (2) the ESA does not allow the designation of a DPS made up of species already protected under the ESA at a more general taxonomic level.

First, the court held that the Service’s creation of a DPS “operates as a one-way ratchet” to provide protections to a covered species.  In other words, the Service cannot create a DPS and simultaneously delist that same DPS.  The court reasoned that the Service’s own DPS policy, which states that the ESA “is intended to authorize listing of some entities that are not accorded the taxonomic rank of species,” necessarily implies that a prerequisite for designation of a DPS is that the potential DPS qualify for listing as endangered or threatened.  Therefore, under the Service’s own requirements, if a potential DPS does not qualify as endangered or threatened, the DPS may not be designated.  As such, the court found the Service cannot designate and simultaneously delist a DPS, as it had done in the Final Rule.  

Second, the court found that, because the entire western Great Lakes DPS is part of the gray wolf species (Canis lupus), a species listed throughout the United States, the protections afforded to the DPS are controlled by the listing of the gray wolf and may not be reduced below that level.  The court stated that allowing the Service to use the DPS tool to delist smaller, healthy populations of a broader listed species would subvert the purposes of the ESA.  The court explained that the DPS tool was incorporated into the ESA to allow the Service the flexibility to designate smaller population groups of a species in need of ESA protections when protections are not necessary throughout a species’ entire range, not to allow the Service to remove protections from a DPS of a more broadly protected species. 

Finally, the court held that, even if the Final Rule had been properly promulgated, it would still be invalid because the Service failed to adequately explain (1) why territory suitable for gray wolf population is not a significant part of the species’ range, (2) the impact of combined mortality factors such as disease and takings, (3) the adequacy of state regulatory schemes, and (4) how the presence of an unregulated killing zone in Minnesota does not constitute a threat to the species.  The court found that the Service’s lack of explanations rendered the Final Rule arbitrary and capricious.

Accordingly, the court vacated the Final Rule, thereby restoring ESA protections to the western Great Lakes DPS.

Ninth Circuit Panel Holds NMFS Biological Opinion regarding California Water Projects Passes Legal Muster

Posted in Court Decisions, Uncategorized

As numerous news outlets reported, see L.A. Times and S.F. Chronicle, the United States Court of Appeals for the Ninth Circuit issued a decision reversing a lower court and affirming a biological opinion and reasonable and prudent alternative issued by the National Marine Fisheries Service with respect to the continuing operation of the Central Valley Project by the Bureau of Reclamation and the State Water Project by the California Department of Water Resources.  The Projects provide water to more than 20 million Californians.

The panel’s decision relies heavily on a prior Ninth Circuit decision affirming a biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service with respect to the continuing operation of the Projects.  A number of parties have asked the Supreme Court to review that decision, as we first reported here.

National Marine Fisheries Service Lists Five Species of Sawfish as Endangered

Posted in Listing, National Marine Fisheries Service

The National Marine Fisheries Service (Service) recently published (pdf) its final rule listing five species of sawfish as endangered under the Endangered Species Act (ESA).  The final rule contains the Service’s determination that the narrow sawfish (Anoxypristis cuspidate), dwarf sawfish (Pristis clavata), largetooth sawfish (collectively, Pristis pristis), green sawfish (Pristis zijsron) and the non-U.S. distinct population segment (DPS) of smalltooth sawfish (Pristis pectinata) are endangered species under the ESA.  The Service determined that these five species are all in danger of extinction throughout all of their ranges due to: (1) present or threatened destruction, modification or curtailment of habitat; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) inadequacy of existing regulatory mechanisms; and (4) other natural or manmade factors affecting their continued existence, and low abundance, lack of connectivity, and genetic diversity.

WildEarth Guardians submitted a petition in 2010 that requested the Service list six sawfish species, including the five species subject to this final rule, as endangered under the ESA.  In its 90-day finding for that petition, the Service found that protection may be warranted for these five species, but that protection was not warranted for a sixth species of sawfish.

The Service did not designate critical habitat for the species because the geographical areas that they occupy are entirely outside of U.S. jurisdiction.  The Service has not identified any unoccupied areas within U.S. jurisdiction that are essential to the conservation of any of the five species.

Endangered Species Act Roundup – Three For the Price of One

Posted in Fish & Wildlife Service, Listing, Litigation, Uncategorized

Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses:

December 11, 2014 – U.S. Fish and Wildlife Service issues a final rule listing the rufa red knot (Calidris canutus rufa) as a threatened species.  The rufa red knot is a migratory shorebird that breeds in the Canadian Artic, and winters in parts of the United States, the Carribean, and South America.  The final rule states that the listing is due to “loss of both breeding and nonbreeding habitat; likely effects related to disruption of natural predator cycles on the breeding grounds; reduced prey availability throughout the nonbreeding range; and increasing frequency and severity of asynchronies (mismatches) in the timing of the birds’ annual mirgratory cycle relative to favorable food and weather conditions.”

December 11, 2014 – U.S. Fish and Wildlife Service announces the availability of the Draft Recovery Plan for Santa Rosa Plain, which includes the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense) and three plant species.  The announcement states that the “primary threat to these species is modification and destruction of suitable habitat due to urbanization, agricultural conversion, competition with non-native plants, and climate change.”  The Service estimates the total incremental economic effect of the recovery plan to be $463 million over the next fifty years.  According to the announcement, the Service will be accepting comments on the draft recovery plan through February 9, 2015.

December 12, 2014 – The State of Colorado notifies the U.S. Fish and Wildlife Service of its intent to sue the Service and challenge the final rule listing the Gunnison sage-grouse (Centrocercus minimus) as a threatened species.  We blogged about the rule here.



NMFS Publishes Corrected Proposed Critical Habitat Designation for Arctic Ringed Seal

Posted in Critical Habitat, National Marine Fisheries Service

On December 9, 2014, the National Marine Fisheries Service (NMFS) and Secretary of Commerce published a revised proposed rule designating critical habitat for the Arctic Ringed Seal.  The previous proposed rule was published here (and reported on this blog here) on December 3rd.  Citing a clerical error, NMFS withdrew the December 3rd rule, claiming it “contained numerous errors.”  The rule published today is intended to replace the prior critical habitat designation, and the comment period will reopen effective today and will remain open until March 9, 2015.

Court Holds Small Business Administration and Farm Service Agency Must Consult on Loan Guarantees

Posted in Court Decisions

A federal district court in Arkansas recently issued a decision clarifying that the obligation to consult under section 7(a)(2) of the Endangered Species Act (ESA) extends to the Small Business Administration and the Farm Service Agency when they provide loan guarantees to farmers.  The case, Buffalo River Watershed Alliance v. U.S. Dept. of Agriculture, Case No. 13-450 (E.D. Ark. Dec. 2, 2014), involves a concentrated animal feeding operation in Arkansas that obtained loan guarantees from the Small Business Administration and the Farm Service Agency.  The Farm Service Agency, pursuant to the National Environmental Policy Act (NEPA), completed an environmental assessment and issued a Finding of No Significant Impact with respect to its proposed action to provide a loan guarantee.  In contrast, the Small Business Administration determined it had no obligation under NEPA.  Neither agency obtained a biological opinion from the U.S. Fish and Wildlife Service regarding its actions, though it apparently is undisputed that the federally listed gray bat occupies the area.  In holding that both the Small Business Administration and Farm Service Agency were required to consult and had failed to so in contravention of the ESA, the Court explained:

The Agencies argue that their guaranties were not actions within reach of the Endangered Species Act. This argument … understates the role of the guaranties.

The court provided a one year deadline for compliance and consultation with the U.S. Fish and Wildlife Service.

U.S. Fish and Wildlife Service Releases 2014 Threatened and Endangered Species Candidate List

Posted in Fish & Wildlife Service, Fish & Wildlife Service, Fish & Wildlife Service, Listing

On December 5, 2014 the U.S. Fish & Wildlife Service (USFWS) released its Fiscal Year 2014 Threatened and Endangered Species Candidate list.  Under the Endangered Species Act (ESA), when the USFWS either receives a petition from a third party to list a species as threatened or endangered, or when the USFWS decides of its own accord to evaluate a species for listing, it is required to issue a 90 day finding on the potential listing, and then a 12-month finding, followed by a determination on the species’ status.  Forty species received final listing decisions this year.  USFWS may delay a listing decision on a species if it finds that the listing of a species is “warranted but precluded” by other, higher-priority species.  This year, USFWS reviewed 146 candidate species.

When reviewing candidate species for listing, USFWS gives each species a listing priority number (LPN) based on the magnitude and imminence of threats to the species’ continued existence.  LPNs range from 1 to 12, with 1 being the highest priority, and 12 being the lowest priority for listing.  Priorities have three categories for taxonomic status: species that are the sole member of a genus; full species (where the genus has more than one species); and subspecies or distinct population segments (DPS) of vertebrate species.  The list released by USFWS recognized 23 species that are new candidates for listing, including one bird (the Ma’oma’o (Gymnomyza samoensis)) native to American Samoa, eighteen flowering plants native to one or more Hawaiian islands, and four ferns native to one or more Hawaiian islands.  All of the new candidate species received an LPN of 2 or 3.  One bird species, the Sprague’s pipit (Anthus spragueii), received a revised LPN based on a decreased magnitude of threats and overall stability of its population, and was accordingly downgraded from LPN 8 to LPN 11.  The Packard’s milkvetch (Astragalus cusickii var. packardiae) was removed from the candidate species list based on the species’ positive response to a 2013 Bureau of Land Management decision to permanently close 5,620 acres within and near Packard’s milkvetch habitat to off highway vehicle use, eliminating the largest threat to the species from 68% of its occurrences.

Of the species that retained “warranted but precluded” findings, USFWS anticipates publishing a listing determination for 27 species within the next year.  The deadlines for listing determinations on these 27 species are imposed either by court order or a settlement agreement.  Notably, the Columbia Basin DPS of Greater sage-grouse (Centrocercus urophasianus) was not included in the number of species expecting listing determinations within the next 12 months, though USFWS will continue to monitor the status of the DPS.  A number of already listed species received petitions for reclassification from threatened to endangered.  USFWS found that reclassification of one population (North Cascades ecosystem population) of Grizzly Bear (Ursus arctos horribilis), Delta Smelt (Hypomesus transpacificus), and Pariette Cactus (Sclerocactus brevispinus) from threatened to endangered was warranted but precluded by the current work on new candidate species. USFWS found that reclassification was not warranted for two other populations of Grizzly Bear.

For the species that remain candidates for listing, USFWS is soliciting any additional or updated information on an ongoing basis.