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Endangered Species Law and Policy

Outdated requirement results in continued listing of species determined to be recovered

Posted in Congress, Delisting, Fish & Wildlife Service

The Modoc sucker (Catostomus microps), a small fish with a range limited to northeast California and south-central Oregon, was listed as endangered (pdf) in 1985.  A recovery plan for the species was adopted by the Service in 1992, and in February 2014, the Fish and Wildlife Service proposed the delisting of the species (pdf).  In the proposed rule, the Service made the following determinations:

As a result of the discovery of five populations not known at the time of listing and the documentation of the genetic integrity of populations considered in the 1985 listing rule to have been lost due to hybridization, the known range of the Modoc sucker has increased and it currently occupies its entire known historical range.  Additionally, the distribution of occupied stream habitat for populations known at the time of listing has remained stable or expanded slightly since the time of listing, even though the region has experienced several droughts during this time period.  Additionally, the relevant recovery objectives outlined in the Recovery Plan for the Modoc sucker have been met, indicating sustainable populations exist throughout the species’ range.  Finally, an assessment of factors that may be impacting the species did not reveal any significant threats to the species, now or in the future.

79 Fed. Reg. at 8665.  Corbin Hiar recently reported in Greenwire that the final determination to delist hit a roadblock (“How ESA advertising requirement snagged fish delisting,” March 2, 2015 [subscription required]).  Specifically, the Service failed to fulfill the requirement under section 4(b)(5)(D) of the Endangered Species Act (ESA) to “publish a summary of the proposed regulation in a newspaper of general circulation in each area of the United States in which the species is believed to occur.”  As a consequence, Hiar reports, the species will remain on the list of threatened and endangered species and subject to the ESA’s protections for another year.  This outdated requirement is embodied in the statute, and it will remain there along with other provisions in need of reform until Congress has the wherewithal to update the Act.

National Marine Fisheries Service Issues a 90-Day Finding and a Proposed Rule

Posted in Listing, National Marine Fisheries Service

On March 3, 2015, the National Marine Fisheries Service (NMFS) issued two Federal Register notices – a 90-day finding on a petition (pdf) to list the Common thresher shark (Alopias vulpinus) as either threatened or endangered, and a proposed rule to list  (pdf) the Tanzanian distinct population segment (DPS) of the African Coelacanth (Latimeria chalumnae) as a threatened species.

Common thresher shark

thresherOn August 26, 2014, Friends of Animals petitioned NMFS to list the Common thresher shark as endangered or threatened under the Endangered Species Act (ESA), or, in the alternative, to delineate six distinct population segments of the Common thresher shark and list each as endangered or threatened.  In the 90-day finding NMFS stated that neither the petition nor any information readily available to NMFS provided support for the existence of the six proposed distinct population segments.  However, based on information in NMFS files and information presented in the petition, NMFS found substantial evidence to support the finding that listing the Common thresher shark worldwide as either threatened or endangered may be warranted.  The 90-day finding states that the may be warranted determination is due to the species’ continued overexploitation associated with bycatch, recreational fishing, commercial fishing, and direct catch associated with the shark fin trade.


African coelacanth

The African coelacanth is an armored fish that was thought to be extinct until 1938 and is one of only two species belonging to the order Coelacanthiformes, which have existed for over 65 Iziko_Coelacanth_Fishmillion years.  Prompted by a July 15, 2013 petition filed by WildEarth Guardians, NMFS undertook a status review of the species.  In the proposed rule, NMFS describes the range of the species as restricted to three main populations: (1) the Tanzanian population, (2) the Cormoran population, and (3) the South African population.  NMFS also states that there is no known genetic exchange between the populations, and that each population is geographically isolated from one another.  NMFS states in the proposed rule that the significance prong for a distinct population segment is met because there are only three known populations of the fish, and the loss of any one population would constitute a significant gap in the species’ range.  NMFS also states that the Tanzanian population of coelacanth is faced with moderate threats due to ongoing bycatch and plans to develop a deep water port in coastal waters where the fish occurs.  As the moderate threats were only identified for the Tanzanian DPS, NMFS has proposed to list only the Tanzanian DPS as threatened under the ESA.

National Marine Fisheries Service Considering Revision to Critical Habitat Designation for Southern Resident Killer Whales

Posted in Critical Habitat, National Marine Fisheries Service

On February 24, 2015, the National Marine Fisheries Service (NMFS) announced a 12-month finding (pdf) on the Center for Biological Diversity’s (CBD) petition to revise the critical habitat designation for the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA).  The 12-month finding describes how NMFS intends to proceed with the revision: completing data collection and analysis, identifying areas that meet the definition of critical habitat, balancing the benefits of any designation against the benefits of exclusion, and developing a proposed rule for the revised critical habitat for public comment.

NMFS issued a final rule (pdf) designating approximately 2,560 square miles of critical habitat for the Southern Resident killer whale in November 2006.  The final critical habitat designation identified three specific areas: (1) the Summer Core Area in Haro Strait; (2) Puget Sound; and (3) the Strait of Juan de Fuca.  At the time of the designation, however, NMFS noted that there was insufficient data on the species’ distribution throughout and use of the coastal and offshore areas in the Pacific Ocean.  Although NMFS recognized that the whales occupied Pacific Ocean waters for a portion for the year and considered them part of the area occupied by the species, NMFS declined to designate the waters as critical habitat because the data informing whale distribution, behavior, and habitat use were insufficient to define “specific areas” as required by the ESA.

On January 21, 2014, CBD petitioned NMFS for a revision to the critical habitat designation, proposing that the designation be expanded to include the Pacific Ocean region between Cape Flattery, WA, and Point Reyes, CA, extending approximately 47 miles offshore.  The petition also requested that NMFS adopt as a primary constituent element, for both currently designated critical habitat and the proposed revised critical habitat, protective in-water sound levels.

CBD’s petition listed recent sources of information on the Southern Resident killer whales’ habitat use along the West Coast of the United States, particularly data from NFMS’ Northwest Fisheries Science Center programs, including satellite tagging conducted in 2012 and 2013.  NMFS engaged in research activities to fill data gaps about coastal habitat use following the 2006 critical habitat designation.  In 2011, NMFS completed a 5-year review of the Southern Resident DPS, recommending that NMFS increase knowledge about the coastal distribution, habitat use, and prey consumption of the species to inform its critical habitat designation.

Court Denies Motion to Dismiss a Challenge to Natural Gas Projects in the Great Barrier Reef

Posted in Court Decisions, Fish & Wildlife Service, National Marine Fisheries Service

On Friday, February 20, a federal district court denied (pdf) a motion to dismiss, thereby breathing life into an Endangered Species Act (ESA) challenge brought against the Export-Import Bank of the United States (Bank) for funding activities in and around Australia’s Great Barrier Reef World Heritage Area. See Center for Biological Diversity, et al. v. Export-Import Bank of the United States, No. C 12-6325 SBA (N.D. Cal. Feb. 20, 2015). As previously reported on this blog, the case alleges that the Bank violated section 7 of the ESA by failing to consult with federal wildlife agencies concerning the potential effects of constructing and operating two liquefied natural gas projects on four listed species and their habitats. In support of their motion to dismiss, Defendants argued that the Bank had taken no “agency action” that triggers section 7 consultation because the project occurs entirely within a foreign country and its territorial waters. In other words, Defendants argued that the project falls outside the geographic scope of section 7, which only applies to actions within the territory of the United States and “upon the high seas.” The Court rejected this argument, holding that facts alleged in the Plaintiffs’ complaint sufficiently supported an inference that the project being funded by the Bank includes shipping activities that occur “upon the high seas.”

The Oregon chub is the first fish species ever to be declared recovered and removed from threatened species listing

Posted in Uncategorized

On February 17, 2015, the U.S. Fish and Wildlife Service announced its final decision to remove the Oregon chub (Oregonichthys crameri) from the Federal List of Endangered and Threatened Wildlife under the Federal Endangered Species Act (ESA). The decision to delist the chub also removes designated critical habitat for the chub throughout its range.

The Oregon chub is endemic to the Willamette River drainage of western Oregon. The Service listed the Oregon chub as endangered on October 18, 1993. The Service designated critical habitat for the chub in a final rule published on March 10, 2010. On April 23, 2010, the Service published a final rule reclassifying the chub as threatened.   The Service’s decision to delist the chub is based on its finding that the species has recovered and no longer meets the definition of an endangered or threatened species under the ESA, and that threats to the species have been eliminated or reduced such that chub populations are stable.

114th Congress Introduces Bill to Amend Endangered Species Act of 1973

Posted in Congress, Legislation

On January 28, 2015, Congressman Bill Flores (R-TX) introduced House Bill H.R. 585 (pdf), which seeks to amend the Endangered Species Act of 1973 (ESA) to establish a new procedure for approval of certain stipulated consent decrees between the federal government and third parties.  Specifically, in cases brought under the ESA’s citizen suit provision (16 U.S.C. § 1540(g)), H.R. 585 would require that parties interested in intervening in a lawsuit would have 30 days to intervene, during which time the parties in the case would not be able to file a motion for a consent decree or to dismiss the suit based on a settlement agreement.  The bill would also require that a court presume that an intervening party’s interest in an ESA lawsuit would not be adequately represented, unless evidence to the contrary is presented.  If a party is allowed to intervene, the bill would require that the case be sent to the court’s mediation program or a magistrate judge for settlement discussions.

Perhaps the most striking change that H.R. 585 proposes is to prevent a court from awarding any  party litigation costs (including attorney’s fees) when the case is resolved through a consent decree, and would prohibit payment of litigation costs to a plaintiff whenever the matter is dismissed as a result of a settlement. The bill would also require as a prerequisite to the entry of any consent decree, the approval of each State and county in which a species that is the subject of the lawsuit occurs.  Additionally, without this approval, the court would be prohibited from dismissing a case pursuant to a settlement agreement or consent decree.  In order to facilitate the timely involvement of the relevant States and counties, once a settlement is proposed, the bill would require that the Secretary of Interior notify each State and county in which the Secretary believes the species that is the subject of the lawsuit occurs.  If the relevant States and counties do not respond to the notice within 45 days, the court may deem this lack of response a tacit approval of the agreement, and as such enter the consent decree and dismiss the lawsuit.  In the event that some or all of the relevant States and counties respond to the notice from the Secretary with a statement of non-opposition or approval, the appropriate official from each State or county that responded must sign off on the settlement in order for it to be binding and enforceable.

Federal Agencies Revise Killer Whale Listing to Include Whales Held in Captivity

Posted in Listing, National Marine Fisheries Service

On February 10, 2015, the National Marine Fisheries Service and the National Oceanic Atmospheric Administration (“Services”) issued a final rule (pdf) to include captive killer whales in the Southern Resident killer whale distinct population segment (DPS) of killer whales (Orcinus orca). The DPS has been listed as endangered under the federal Endangered Species Act (ESA) since 2005, but the listing excluded whales held in captivity. In January 2013, People for the Ethical Treatment of Animals petitioned the Services to remove the exclusion and extend the protections of the ESA to captive whales. After reviewing the petition, the Services concluded that captive animals cannot be assigned separate legal status from their wild counterparts.

The revised rule will affect one whale in the United States, Lolita, who has lived at the Miami Seaquarium since 1970. The total global population of the Southern Resident killer whale DPS is estimated to be fewer than 80 whales.

National Marine Fisheries Service Extends Comment Period for Proposed Arctic Ringed Seal Critical Habitat Designation

Posted in Critical Habitat, National Marine Fisheries Service

On February 2, 2015 the National Marine Fisheries Service (“Service”) announced its plan to extend the period for public comments on its December 3, 2014 proposed designation of critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida), reported on this blog.  (80 FR 5498 [pdf].)  The Service’s proposed rule would designate millions of acres in the Bering, Beaufort, and Chukchi seas as critical habitat for the threatened Arctic Ringed Seal.  The public comment period will now remain open until March 31, 2015.  Additionally, the Service announced that a fifth public hearing on the proposed critical habitat designation will be held in Bethel, AK on February 26, 2015 from 4 p.m. to 7 p.m.  The hearing will take place at the Yupiit Piciryarait Cultural Center, 420 Chief Eddie Hoffman Highway, Bethel, AK 99559.

Transportation Research Bureau Publishes New Report on Airports and Species

Posted in Conservation, Consultation, Listing

The Transportation Research Bureau (“TRB”), a division of the National Research Council within the National Academies, has released a report entitled Innovative Airport Responses to Threatened and Endangered Species (pdf).  The report is intended to assist airport sponsors and operators in addressing federally listed species issues on or near their facilities.  The introduction to the report includes the following summary of its contents:

“ACRP Report 122 first introduces relevant regulations and then provides a discussion of potential areas of conflict between airports and those regulations as well as information on how to address those challenges. Additionally, the primer includes a series of case studies to provide users with a variety of approaches, actions, and measures that have been successfully implemented in diverse geographic, facility, and regulatory settings.”

The TRB has also produced, along with the report, a compilation (pdf) of helpful resources.

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.