USFWS Tentatively Supports ESA Reform Bills

On July 19, 2017, the House Committee on Natural Resources held a full committee legislative hearing on five bills that would amend portions of the Endangered Species Act (ESA).

  • H.R. 424 (Rep. Collin Peterson; D-MN) – This bill would require the Department of Interior to reissue the final rules relating to the listing of the gray wolf in the Western Great Lakes and Wyoming.
  • H.R. 717 (Rep. Pete Olsen; R-TX) – This bill would remove the 90-day and 12-month deadlines for making listing determinations and allow the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service to consider the economic effects that may occur as a result of a listing or designation of critical habitat.
  • H.R. 1274 (Rep. Dan Newhouse; R-WA) – This bill would require USFWS to more heavily coordinate with states impacted by a listing decision. It would also require USFWS to include all data submitted by state, local and tribal governments when reviewing species status and to automatically consider such information as the “best available scientific and commercial data.”
  • H.R. 2603 (Rep. Louie Gohmert; R-TX) – This bill would remove listings of non-native species.
  • H.R. 3131 (Rep. Bill Huizenga; R-MI) – This bill would amend the ESA’s attorney’s fees provision to require a party to prevail in order to recover fees and place a cap on those fees.

During the hearing, Greg Sheehan, USFWS acting Director, announced the administration’s support of ESA reform and a commitment to working more closely with the states. Sheehan spoke in favor of various portions of the bills but was careful to state that technical modifications to the bills would still be needed.  For example, Sheehan criticized the language in H.R. 1274 that would automatically characterize state, local, and tribal information as “the best scientific and commercial data available” as a significant departure from scientific integrity standards.  While these bills have a higher likelihood to advance, and possibly be passed, given the support of the acting USFWS Director, in the 115th Congress there have been a total of 34 ESA-related bills introduced and to date the Democrats have been successful in blocking all of those from advancing, calling into question whether or not these bills will suffer the same fate.

ESA Reform Update

Battle lines are being drawn in connection with ongoing efforts by lawmakers to reform the Endangered Species Act (“ESA”).  In a letter addressed to the leaders of both houses of Congress, the Senate Environmental and Public Works Committee and the House Committee on Natural Resources, more than 400 groups requested lawmakers to oppose any bill, rider, or other policy proposal that weakens protections for endangered species and habitat.  The letter’s signatories include non-governmental organizations based throughout the United States, as well as national non-profits Natural Resources Defense Council, the Humane Society, the Sierra Club, and the Union of Concerned Scientists.  The letter calls for continued funding for, and comprehensive implementation of, the ESA.

The letter follows on the heels of the Western Governor’s Association’s bipartisan recommendations for amending the ESA, which include statutory amendments authorizing the U.S. Fish and Wildlife Service and the National Marine Fisheries Services to, in certain circumstances, prioritize and defer action on listing petitions and amendments.  These proposed amendments are intended to encourage state-led conservation efforts.

Hualapai Mexican Vole Removed from List of Endangered Species Due to Erroneous Listing

On June 23, 2017, the U.S. Fish and Wildlife Service (Service) promulgated a long-awaited final rule to delist the Hualapai Mexican vole (Microtus mexicanus hualpaiensis) (HMV) due to the Service’s determination that the original 1987 listing of the HMV under the Endangered Species Act (ESA) was in error.  Based upon more recent scientific and commercial information, the Service concluded that the HMV is not a distinguishable subspecies of Mexican vole and thus is not a valid taxonomic entity listable under the ESA.  This error in taxonomic classification was first raised by a delisting petition filed in August 2004 by the Arizona Game and Fish Department (AGFD).  The delisting goes into effect on July 24, 2017.

When the Service listed the HMV as endangered approximately 30 years ago, the Service considered the HMV to be one of three subspecies of Mexican vole found in Arizona.  The Service believed the HMV occupied an extremely restricted range within only the Hualapai Mountains of Arizona and listed the HMV based on perceived threats posed by degradation of habitat due to drought, livestock grazing, and human recreation.  The Service’s 1991 Recovery Plan for the HMV outlined management and research priorities but included no recovery criteria due to the lack of information on HMV biology and life history requirements.

In 2004, the AGFD petitioned the Service to delist the HMV.  The AGFD asserted that the original scientific data used to classify the HMV as a subspecies were in error, and that the best scientific data currently available do not support the taxonomic recognition of the HMV as a distinguishable subspecies.  Following the Service’s May 2008 positive “90-day finding” that the petitioned-for delisting of the HMV may be warranted, the Service then initiated a periodic 5-year species status review for the HMV; the Service did not complete the status review or the requisite “12-month” finding on the delisting petition.  Following years of apparent Service inaction on the HMV petition, in January 2015, Mojave County, Arizona, and the non-profit private property rights group American Stewards of Liberty filed a 60-day notice of intent to sue the Service for failure to reach a timely 12-month finding on the HMV delisting petition.  Approximately six months later, the Service issued a positive “12-month finding” on the petition and concurrently proposed a rule to delist the HMV.  Following the Service’s December 2016 reopening of the public comment period for the proposed rule to remedy a procedural error, the Service has now issued the final HMV delisting rule.  Overall, the delisting petition process for the HMV spanned nearly thirteen years, although the ESA establishes a maximum of two years for the entirety of the ESA petition and rulemaking process.

Disclosure:  Nossaman represented American Stewards of Liberty and Mohave County, Arizona, in efforts to delist the HMV and continues to represent American Stewards in petitions to delist other species for which original listing was in error.

U.S. Fish and Wildlife Service to Delist Yellowstone Grizzly Bear

On June 22, 2017, U.S. Secretary of the Interior Ryan Zinke announced that the U.S. Fish and Wildlife Service (Service) will delist the Yellowstone population of the grizzly bear (Ursus arctos horribilis).  According to the Service, the Greater Yellowstone Ecosystem Distinct Population Segment (Yellowstone DPS) of the grizzly bear has recovered to the point that federal protections are no longer necessary and overall management of the species can be returned to the states and tribes.

The Yellowstone DPS consists of grizzlies in portions of northwestern Wyoming, southwestern Montana and eastern Idaho.  The Service estimates that the population has rebounded from as few as 136 bears in 1975 to approximately 700 today. The Yellowstone DPS now occupies more than 22,500 square miles, more than double its range from the mid-1970s.  The Service determined that delisting was warranted based on several factors, including the number and distribution of bears throughout the ecosystem, the quantity and quality of the habitat available, and the states’ commitments to manage the population in a manner that maintains its healthy and secure status.

Grizzly bear populations outside of the Yellowstone DPS, in the lower 48 states, will continue to received protection under the Endangered Species Act.  The Service’s final rule will be published in the Federal Register in coming days and will take effect 30 days after publication.

U.S. Fish & Wildlife Service Reopens Comment Period for Five Proposed Rules

Earlier this week, the U.S. Fish & Wildlife Service (Service) issued a notice in the Federal Register that it was reopening the comment period on five proposed rules for four plant species.  Specifically, the proposed rules include the following: (1) listing Guadalupe fescue (Festuca ligulata) as an endangered species; (2) designating Guadalupe fescue critical habitat; (3) reclassifying Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii) from endangered to threatened; (4) reclassifying Kuenzler hedgehog cactus (Echinocereus fendleri var. kuenzleri) from endangered to threatened; and (5) removing gypsum wild-buckwheat (Eriogonum gypsophilum) from the list of endangered and threatened plants.  According to the notice issued by the Service, the comment period is being reopened for 30 days “to give all interested parties further opportunity to comment on the proposed rules.”  The reopened comment period will end on July 13, 2017.

Secretary Zinke Orders Review of Sage-grouse Management Plans

On June 8th, 2017, Department of Interior (DOI) Secretary Ryan Zinke signed Secretarial Order 3353, entitled “Greater Sage-Grouse Conservation and Cooperation with Western States.”  This Order initiates the assessment of both federal and state-led conservation efforts related to the greater sage-grouse and establishes a review panel to undertake the evaluation. The review panel will then recommend (potentially significant) changes to how the bird is managed. The stated purposes of the Order are to 1) enhance cooperation between DOI and the eleven western states comprising the historic range of the greater sage-grouse, 2) to support a federal/state partnership with clearly defined roles and objectives for the management and conservation of the species, and 3) establish a team of federal land managers (e.g. U.S. Fish & Wildlife Service (FWS), Bureau of Land Management (BLM) and U.S. Geological Survey (USGS)) who will review the federal agencies’ prior sage-grouse management plans completed on or before September 2015. Those 2015 finalized plans, which in total cover the habitat management of nearly half the species’ range, included amendments and revisions to 98 BLM and U.S. Forest Service (USFS) land-use plans and were designed to conserve and protect sage-grouse habitat, in order to demonstrate that enough conservation was occurring on the landscape for FWS to avoid listing the bird as threatened or endangered under the Endangered Species Act (ESA).  The Order directs the review team to complete its evaluation within 60 days and then provide the Secretary with a summary and recommendations for any action the department should take.  According to the DOI press release accompanying the Order, the effort is intended to “explore[] possible plan modifications,” “consider local economic growth and job creation,” and evaluate whether the federal and state plans and programs are “complementary.”  It would appear therefore that this is a follow-on to Secretarial Order 3349, entitled “American Energy Independence,” which in turn implemented Executive Order 13783, “Promoting Energy Independence and Economic Growth,” executed by the Secretary and President respectively in March of this year.

Critics of the Order contend that all threats to the species and potential management options were considered over a yearslong process culminating in the 2015 plans, and noted that science dictated which were the top species management concerns and what the most potentially successful conservation measures were that could be employed to counter those risks, so a review and reconsideration of these same issues is unwarranted and will not result in a better outcome.  They further note that amending the management plans to allow for additional oil and gas development ignores the fact that most core habitat is not coincident with the highest potential oil and gas plays, is inconsistent with the prior state and federal consensus on the species conservation needs and habitat areas to avoid, and that the conservation plans were created to “include flexibility and an ongoing collaboration with the states.”  Supporters laud the effort saying that it is long overdue for the states’ views to be fully considered, and given equal weight to those of the federal government on how to best manage the species, and for restrictions on energy production and other public land uses to be thoroughly evaluated to determine if they are overly burdensome.  However, while commending Secretary Zinke for undertaking the review, House Natural Resource Committee Chairman, Rob Bishop (R-Utah) stated that the review, and any related adjustments that comes out of the process, alone is not enough to solve the problems identified by the administration, as current and future litigation could force plan amendments to revert back to the 2015 versions or be scrapped all together, and therefore legislation is a necessary component of how to address the species’ management.

While the results of the panel’s assessment will not be known for some time, we do know that nothing with respect to this species is definitive and we can expect years of rulemaking and litigation to come.

National Marine Fisheries Service Proposes Revised Guidance for Recovery Plans

On May 31, 2017, the National Marine Fisheries Service (NMFS) issued (pdf) proposed revised guidance for the development of recovery plans as required by the Endangered Species Act (ESA).  The proposal is aimed at prioritizing limited agency resources to advance the recovery of threatened and endangered species.  According to NMFS, this prioritization would be accomplished by focusing on the immediacy of the species’ overall extinction risk, extent of information regarding major threats, and certainty that management or protective actions could be implemented successfully.

The proposal revises the Recovery Plan Preparation and Implementation Priorities and Recovery Plans contained in the 1990 Listing and Recovery Priority Guidelines. NMFS finalized this original guidance on June 15, 1990.

NMFS proposes to revise Part B of the Guidance, “Recovery Plan and Implementation Priorities,” to increase the number of species priority numbers to 24 (currently there are only 12) by redefining the “magnitude of threat” and “recovery potential” criteria. The “magnitude of threat” criteria would be changed to a demographic risk rank based on the species listing status (threatened or endangered) and species’ condition for productivity, spatial distribution, diversity, abundance, or trends.  This proposed change is aimed at providing greater emphasis on the species’ risk and more detail on the factors in assessing the risk rank.

NMFS proposes to redefine a species’ recovery potential by splitting the criterion into three components: (1) extent of knowledge of major threats to the species and the species’ response to those threats: (2) whether the United States has jurisdiction to act; and (3) certainty that actions will be effective. Each of these components would have a “high” or “low to moderate” category.  This change is designed to improve the guidelines by including the United States’ ability to influence recovery actions and providing greater detail in the definition of recovery potential.

Finally, NMFS proposes to add two new recovery task priority numbers. Task Number 4 is defined as actions not linked to downlisting and/or delisting criteria and not needed for ESA recovery, but needed to facilitate post-delisting monitoring. Task Number 0 is defined as actions that are not needed for ESA recovery, but that would advance broader goals beyond delisting.

The comment period on the proposed revisions is open through June 30, 2017.

Nevada Solar Project Survives Ninth Circuit Review Despite Impacts to Tortoise Connectivity

On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii).  The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project violated the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act and were arbitrary and capricious.

The Silver State South Solar Project (Project) is a 2,400-acre utility-scale solar power facility on federal land managed by BLM in the Ivanpah Valley.  The Project is located within the federally threatened desert tortoise Eastern Mohave Recovery Unit, one of four such units designated in the Desert Tortoise Recovery Plan. The Ivanpah Valley is identified as one of three areas of high-quality habitat within the Eastern Mohave Recovery Unit.  Critical habitat is designated for tortoise in the Ivanpah Valley; however, the Project site is not within the boundaries of designated critical habitat.

The plaintiff challenged FWS’s issuance of and BLM’s reliance upon a biological opinion that concluded the Project (i) was “not likely to adversely affect” the tortoise’s critical habitat and (ii) would not jeopardize the continued existence of the tortoise.  Specifically, the plaintiff challenged the Project’s acknowledged potential reduction in connectivity between tortoise critical habitat areas within the Ivanpah Valley, maintaining that such a reduction is incompatible with the findings in the biological opinion.

The Court first rejected plaintiff’s argument that merely by including the entire Ivanpah Valley, including designated critical habitat, within the Project’s “action area,” the biological opinion is required to analyze the Project’s effects on critical habitat:  “[T]he inclusion of critical habitat in a biological opinion’s action area does not automatically trigger the duty to conduct an adverse modification analysis; the relevant inquiry remains whether the proposed action is ‘likely to adversely affect’ critical habitat.”  The Court upheld FWS’s concurrence with BLM’s “not likely to adversely affect” tortoise critical habitat finding as consistent with the regulations governing consultation under section 7 of the ESA.

Next, the Court considered plaintiff’s allegations that reduced connectivity constitutes “adverse modification” of critical habitat.

As an initial matter, the Court found that the plain language of the ESA requires an adverse modification of critical habitat consists of two elements, (i) a “modification” of the habitat that is (ii) “adverse.”  The Court then examined the 1986 regulation defining “adverse modification,” invalidated by the Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), and the 2016 replacement regulation, both of which require a “direct or indirect alteration” that “appreciably diminishes the value of the critical habitat.”

The Court ruled that under the statute and the regulations, there is “[a] threshold requirement that there must be an alteration to the critical habitat” in order to make a finding of adverse modification.  Consequently, the Court held that the Project’s reduced connectivity does not constitute adverse modification because the Project did not alter and would not result in an alteration to tortoise critical habitat; it is an impact on the species, and properly evaluated under the jeopardy prong of ESA section 7(a)(2).

The Court also found that FWS’s comments and recommendations on the draft National Environmental Policy Act document regarding the Project’s adverse impacts on recovery and connectivity within the Ivanpah Valley were not inconsistent with its no jeopardy/no adverse modification determinations in the biological opinion.

Ninth Circuit Upholds Forest Service’s Construction of New Roads in Grizzly Bear Habitat

On May 17, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling by the U.S. District Court for the District of Montana and upheld the U.S. Forest Service’s (Forest Service) decision to construct 4.7 miles of new roads in the Kootenai National Forest. The Kootenai National Forest is managed pursuant to the Forest Service’s Kootenai National Forest Plan (Forest Plan) that includes access-related amendments prohibiting any “net permanent increase[] in linear miles of total roads.”  These Forest Plan access amendments incorporate a 2011 Biological Opinion and Incidental Take Statement (ITS) for the threatened grizzly bear (Ursus arctos horribilis) that were developed in consultation with the U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act (ESA).  As incorporated into the Forest Service’s revised Forest Plan, the ITS permits incidental take of grizzly bears so long as the total linear miles of roads do not permanently increase in certain designated areas likely used by the species.

In 2013, the Forest Service approved the 4.7 miles of new roadway in connection with its approval of the Pilgrim Creek Timber Sale Project (Project), which requires the construction of new roadways for use by Forest Service staff and government contractors during implementation of the Project. The Project plan includes the installation of a barrier that will close off the new roads to all motorized travel following conclusion of the Project, although the Forest Service’s Record of Decision (ROD) approving the Project stated that “[t]hese closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations.”

In 2013, Plaintiff Alliance for the Wild Rockies brought suit, claiming that the Project would create a net permanent increase in road miles in violation of the Forest Plan access amendments and would therefore violate: (1) the National Forest Management Act (NFMA); (2) the ESA, by failing to comply with the ITS limitations; and (3) NEPA, by incorrectly stating in the Environmental Impact Statement (EIS) for the Project that the Project will comply with the Forest Plan access amendments. The District Court enjoined the Project, pending preparation of a supplemental EIS, due largely to the ROD’s statement indicating that the new roads’ closure may not be permanent.  The Forest Service then issued a Clarification/Amendment of the ROD in 2014 to make it clear that all new roads constructed for the Project will be closed with a permanent closure device.  Based upon this ROD Clarification/Amendment, the District Court lifted the injunction, and the Plaintiff appealed.

The Ninth Circuit easily affirmed the lower court’s grant of summary judgment in favor of the federal defendants, ruling that the Forest Service complied with the NFMA, ESA, and NEPA. The court held that the Forest Service was not arbitrary and capricious in the implementation of its Forest Plan or its interpretation that the planned 4.7 miles of new roads do not count toward the prohibited net permanent increase in new roads because they instead constitute an acceptable, temporary increase in road miles that is permitted by the Forest Plan amendments.