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Endangered Species Law and Policy

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Under Pressure from Congress

Posted in Critical Habitat, Fish & Wildlife Service

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus occidentalis) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah and Wyoming.  The announcement came after 17 members of Congress requested that the Service provide additional time for the public to review the proposed critical habitat designation, and two members of Congress publicly criticized the Service’s analysis of the economic impacts related to the proposed designation.  (For a further discussion of these events, see the following story by Amy Joi O’Donoghu in the Deseret News.)  According to yesterday’s announcement, the Service anticipates providing further information related to the extended comment period “in the coming days.”

Two Petitions Filed Seeking Supreme Court Review of Ninth Circuit Decision in Delta Smelt Case

Posted in Litigation

Recently, two separate petitions were filed with the U.S. Supreme Court seeking review of the Ninth Circuit’s decision in San Luis and Delta Mendota Water Authority v. Jewell, a case involving a challenge to the biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service regarding continuing operations of the Central Valley Project and State Water Project in California. The two projects provide water to over 20 million Californians.

One petition (pdf) was filed on behalf of Stewart & Jasper Orchards, Arroyo Farms, and King Pistachio Grove. The second petition (pdf) was filed on behalf of the State Water Contractors, Metropolitan Water District of Southern California, Coalition for a Sustainable Delta, Kern County Water Agency, San Luis & Delta Mendota Water Authority, and Westlands Water District.

The Ninth Circuit issued a split decision (pdf) in the case, with the panel majority reversing the lower court’s ruling invalidating the biological opinion on numerous grounds.

U.S. Fish and Wildlife Service Proposes to List 23 Mariana Island Species as Threatened or Endangered

Posted in Conservation, Fish & Wildlife Service, Listing

The U.S. Fish and Wildlife Service (Service) has published (pdf) a proposed rule to list 21 species as endangered and 2 species as threatened under the Endangered Species Act (ESA). Of the 21 species the Service proposes to list as endangered, twelve are plant species and nine are animal species. The two proposed threatened species are animal species.

All 23 species are found in the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands. According to the proposed rule, the species are experiencing population level impacts as a result of habitat loss and degradation, predation or herbivory by nonnative species, inadequate existing regulatory mechanisms to prevent the introduction of nonnative plants and animals, ordinance and live-fire from military training, recreational vehicles, and vulnerability to extinction due to small numbers of individuals and populations.

Seven of the species proposed for listing as endangered species were previously listed as candidate species. In addition to these seven species, the Service has determined that 16 species warrant listing under the ESA and, because they occur within the same two ecosystems as the seven candidate species and share common threats with them, the Service included them in the proposed rule to provide them with protection under the ESA in an expeditious manner.

The Service intends to publish a proposal to address critical habitat for the 23 Mariana Islands species under the ESA in the near future.

Service Proposes to List Fisher DPS As Threatened

Posted in Listing

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release (pdf) announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under the Federal Endangered Species Act (ESA), in part due to significant threats from illegal marijuana farming. 

The fisher belongs to a family of mammals that includes weasels and otters, and grows to about the size of a large house cat.  The Federal Register notice (pdf) regarding the proposed listing, which was published yesterday, states that the West Coast DPS of fisher satisfy the definition of a "threatened" species under the ESA because it is "likely to become endangered throughout all of its range" within 40 years.  The notice also states that the main threats to the West Coast DPS are "habitat loss from wildfire and vegetation management, as well as toxicants, and the cumulative impact and synergistic effects of these and other stressors in small populations."  With respect to threats from toxicants, the news release identifies the use of rodenticides by illegal marijuana cultivation sites as a signficiant threat to the species.  

The West Coast DPS of fisher is located in California, Oregon, and Washington.  The Service has currently scheduled one public hearing in Redding, California, and seven public informational meetings to discuss the proposed listing.  Further, according to the notice, the Service will be accepting public comments on the proposed listing through January 5, 2015.

U.S. Fish and Wildlife Service Lists Western Yellow-Billed Cuckoo as Threatened

Posted in Listing

Last Friday, the U.S. Fish and Wildlife Service (Service) published its final rule listing the western yellow-billed cuckoo (Coccyzus americanus) as threatened under the Endangered Species Act (ESA). The species is an insect-eating bird found in riparian woodland habitat. The final rule lists loss of riparian habitat as the primary threat to the species and notes that conversion to agriculture, dam construction, river flow management, and overgrazing have all contributed to loss of the species’ habitat over the last several decades. The species has been listed in twelve western states throughout which it breeds – Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, Wyoming, Montana, Oregon, and Washington.

The Service has proposed to designate 546,335 acres of critical habitat for the species throughout nine western states – Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming. Comments on the proposed critical habitat rule are due on October 14.

Federal Court Agrees: Voluntary Conservation Agreements Sufficient to Keep Lizard Off the Endangered Species List

Posted in Listing

On September 30, 2014, the U.S. District Court for the District of Columbia upheld (PDF) the U.S. Fish and Wildlife Service’s (Service) decision to withdraw (PDF) its proposal to list the dunes sagebrush lizard as an endangered species.  The Service found that threats to the lizard and its habitat have been reduced such that the species no longer meets the statutory definition of an endangered (or threatened) species.  

The dunes sagebrush lizard’s (Sceloporus arenicolus) range spans approximately 745,000 acres across southeastern New Mexico and western Texas in shinnery oak dune habitat.  The lizard’s habitat also lies within the Permian Basin, one of the most significant sources of oil and gas in the United States.  The Service’s 2010 proposal (PDF) to list the lizard as endangered identified increasing pressure on the species’ specialized habitat from conventional and renewable energy development.

The Service’s determination that the lizard and its habitat are protected to a level that the lizard is no longer in danger of extinction now or in the foreseeable future was based on existing and future anticipated conservation measures.  The Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (PDF) allows the Service to consider conservation efforts that have not yet been implemented, so long as the Service evaluates, “the certainty that the conservation effort[s] will be implemented . . . [and] the certainty that the conservation effort[s] will be effective.”  

In this case, the Service found that existing large blocks of protected habitat and the Bureau of Land Management’s (BLM) continued enforcement of species-specific measures protecting the lizard and its habitat under its Resource Management Plan Amendment (RMPA) combined with implementation of two voluntary conservation agreements to protect and restore the lizard’s habitat (one, implemented since 2008; the other, executed less than six months before withdrawal of the proposed listing) would be effective and would continue to eliminate threats to the lizard.  The court held that the Service’s conclusion complied with the PECE and dismissed plaintiff organization’s other claims that the Service’s listing withdrawal violated the Endangered Species Act (ESA) and Administrative Procedure Act.  
In other listing news, on October 1, 2014, the Service published a “not warranted” (PDF) finding on a petition to list the Rio Grande cutthroat trout (Oncorhynchus clarki viginalis).  The Service will remove the cutthroat trout from the candidate list, ending – for now – an over 6-year saga that included not less than four Service listing findings and two lawsuits.  According to the Service, this October 1, 2014 12-month finding fulfills the requirements of the settlement agreement for the currently active lawsuit.  
Finally, on September 29, 2014, Wildearth Guardians submitted a petition to list as threatened or endangered under the ESA the Rio Grande sucker (Catostomus plebeius) throughout its range in the Rio Grande and its tributaries in southern Colorado, New Mexico, and several states in Mexico.  Under Section 4(b)(3)(A) of the ESA, 16 U.S.C. § 1533 (b)(3)(A), the Service should, to the maximum extent practicable, publish a finding within 90 days of receiving the petition whether the petitioned action “may be warranted.” 

U.S. Fish and Wildlife Service Declines to List Two Buckwheat Plants

Posted in Listing

The U.S. Fish and Wildlife Service (Service) has declined to list two Nevada plants under the Endangered Species Act (ESA). On Wednesday, the Service published its 12-month findings on a petition to list the Churchill Narrows buckwheat (Eriogonum diatomaceum) and the Las Vegas buckwheat (Eriogonum corymbosum var. nilesii).

Section 4(a)(1) of the ESA lists five factors that the Service must examine when deciding whether to list a species as threatened or endangered: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence. Examining these factors for the Churchill Narrows buckwheat, the Service looked at the effects of mineral exploration and development, livestock grazing, herbivory, off-highway vehicle activity and road development, invasive plant species, disease, and climate change on the species. The Service found that the “best scientific and commercial information does not indicate that these stressors are causing a decline in the species or its habitat, either now or into the future.” Regarding the Las Vegas buckwheat, the Service found that commercial and other development, off-highway vehicle use and road development, mineral exploration and development, invasive plant species, modified wildfire regime, and climate change “may have impacts on individuals in some locations, but they are not impacting the plants currently or into the future such that listing would be warranted.”

The Churchill Narrows buckwheat and Las Vegas buckwheat have been candidates for ESA listing since 2004 and 2007, respectively. The decision not to lists the species was made as part of a 2011 settlement agreement between the Service and the Center for Biological Diversity, in which the Service agreed to speed up its listing decision process for over 700 species found throughout the United States.

Court Holds Lack of Specificity Dooms Wyoming Wolf Delisting

Posted in Court Decisions

On September 23, 2014, the U.S. District Court for the District of Columbia invalidated the final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Wyoming Gray Wolf distinct population segment from the Federal List of Endangered and Threatened Species, concluding that Wyoming’s regulatory protections were unenforceable and therefore inadequate for purposes of delisting the species.  Despite this conclusion, the court still affirmed the Service’s finding that the species has "recovered" and that it was not "endangered or threatened within a significant portion of its range."  Defenders of Wildlife v. Jewell, No. 12-1833 (D.D.C. Sept. 23, 2014) (pdf).

As acknowledged by the court, the Gray wolf has "a complex and contentious history."  In 1980, the Service listed the Gray wolf in the northern Rocky Mountain (NRM) region (which includes Idaho, Montana, and Wyoming) as endangered under the federal Endangered Species Act (ESA).  In 1987, the Service identified three recovery areas in the NRM region most likely to support a recovered wolf population, and established a recovery goal for the species.  In 1994, the Service modified the recovery goal.

In 2003, after finding that the gray wolf populations had recovered from the threat of extinction, the Service reclassified and delisted the gray wolf incrementally across three distinct population segments.  However, a court eventually found that this action violated the ESA.  In 2008, the Service issued a final rule (i) recognizing NRM distinct population segments (NRM DPS) for Idaho, Montana and Wyoming, and (ii) delisting each of the NRM DPS.  However, a federal court again invalidated the Service’s final rule.  In 2009, the Service issued another final rule, this time delisting only the Idaho and Montana DPS.  But again, a federal court invalidated the Service’s delisting attempt.  Shortly thereafter, pursuant to Congressional direction, the Service issued another final rule delisting the species in Idaho and Montana, but not in Wyoming.

In light of the Service’s decision not to delist the Wyoming DPS, the State of Wyoming amended its statutes and regulations to, among other things, require the State "to reasonably ensure at least ten (10) breeding pairs of gray wolves and at least one hundred (100) individual gray wolves" outside of designated federal lands.  In light of these amendments, in 2011 the Service issued a proposed rule delisting the Wyoming DPS.  The Service also commissioned an independent review by five scientists.  Two of these scientists concluded that delisting was improper because there was no established "minimum population buffer" above the 10 breeding pairs.  In response, the State of Wyoming issued an Addendum to its wolf management plan clarifying the State’s "commit[ment] to manage for a recovered, stable, and sustainable wolf population."  Although the Addendum did not provide a specific numerical minimum population buffer, the Service incorporated the Addendum into the 2012 final rule (2012 Rule) delisting the Wyoming DPS.

Plaintiffs challenged the 2012 Rule on three grounds: (1) Wyoming’s statutory and regulatory regime was inadequate; (2) there is inadequate genetic connectivity between subpopulations; and (3) the Service improperly concluded that wolves are not imperiled throughout a "significant" portion of their range.  The district court agreed with plaintiffs’ first contention.  In reaching this conclusion, the court rejected the State’s argument that it need only maintain 10 breeding pairs in order to uphold the delisting, finding that the Service had determined that Wyoming would need to manage the population "above" the minimum requirement.  Thus, the court phrased the issue as follows: "[W]hether it was proper for [the Service] to rely on nonbinding and unenforceable representations [in the Addendum] when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves."  After noting that there was "little legal authority" addressing the question, the court found that the Service’s "reliance on mere assurances was inappropriate, and it rendered [the Service's] decision arbitrary and capricious."

U.S. Fish & Wildlife Service Nixes Proposed Delisting of Central Valley Beetle Species

Posted in Delisting

On September 17, 2014, the U.S. Fish and Wildlife Service (Service) withdrew (pdf) its proposal (pdf) to remove the valley elderberry longhorn beetle (Desmocerus californicus dimorphus) from the Federal List of Threatened and Endangered Species.  While this means the beetle will continue to be protected as a threatened species under the Endangered Species Act (ESA), the Service did reduce the area in which the species is presumed to occur.

The beetle was listed as threatened and critical habitat designated, in 1980 (pdf).  Until recently, the beetle’s range was believed to include much of the San Joaquin and Sacramento Valleys, from Shasta County in the northern Sacramento Valley to Kern County in the southern San Joaquin Valley, California; but occurrences were thought to be rare.  In its 2006 Five-Year Review (pdf), the Service recommended delisting the beetle, generally because the beetle was determined to be more abundant and widespread than documented at the time of listing.

In 2010, the Service received a petition to delist the beetle.  In 2012, the Service published a proposal to delist the beetle in which the Service recommended eliminating ESA protections for the beetle based on increased beetle populations and ongoing protections afforded to the species’ riparian habitat.

The Service’s 2014 withdrawal of the delisting proposal documents a reduction in the beetle’s distribution based on public comment and scientific peer review.  The Service describes its current estimates as, “the most accurate assessment of the presumed extant occurrences of the valley elderberry longhorn beetle.” 

According to the Service’s September 16 news release (pdf) announcing the withdrawal of the proposed delisting, the species’ range will no longer include Kern, Kings and Tulare counties.  And as such, “the regulatory protections of the ESA [afforded to the beetle] will now be applied to a smaller area.”  However, neither the notice nor the news release makes clear how the Service’s act of redefining the species’ range will affect the Section 9 prohibition against “take” of the beetle if it is found outside of the defined range.

The beetle’s reduced range, combined with threats from invasive plants, pesticides, and global climate change, are identified as the principal reasons for the beetle’s continued listing as a threatened species.

Georgia Plant Listed and 732 Acres Designated

Posted in Listing

On September 12, 2014, the U.S. Fish and Wildlife Service (Service) published notice of its final rule listing the Georgia rockcress (Arabis georgiana) as a threatened plant species under the Endangered Species Act.  On the same day, the Service published notice of its final rule designating 732 acres within Georgia and Alabama as critical habitat for the species.  Designated critical habitat for the Georgia rockcress includes riparian and river bluff habitat within Gordon, Floyd, Harris, Muscogee and Clay Counties in Georgia and Bibb, Dallas, Elmore, Monroe, Sumter, and Wilcox Counties in Alabama.  In the final rule the Service stated that Georgia rockcress is threatened throughout all of its range and that habitat degradation, including disturbance that promotes invasion of nonnative weeds, is the most serious threat to the species’ continued existence.