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Endangered Species Law and Policy

D.C. Circuit Holds Informational Standing Nonexistent Prior to 12-Month Finding

Posted in Court Decisions, Fish & Wildlife Service

In a recent decision, the U.S. Court of Appeals for the District of Columbia affirmed the dismissal of an environmental organization’s Endangered Species Act (ESA) claim, concluding that the organization lacked standing because the informational injury alleged in the complaint could not, as a matter of law, arise until after the U.S. Fish and Wildlife Service (Service) issued a 12-month finding under the ESA, and the complaint expressly alleged that the Service had not issued such a finding.  Friends of Animals v. Jewell, No. 15-5223 (D.C. Cir. July 15, 2016).

Under Section 4 of the ESA, when the Service receives a petition to add or remove a species from the list of threatened and endangered species, it must make a finding regarding whether or not the action may be warranted within 90-days of receiving the petition (90-day finding).  16 U.S.C. § 1533(b)(3)(A).  If the Service concludes in the 90-day finding that the petitioned action may be warranted, then the ESA requires the Service to issue a finding within 12 months on whether the action is warranted (12-month finding).  16 U.S.C. § 1533(b)(3)(B).  The second finding is referred to as a 12-month finding, because the Service is supposed to issue the finding within 12 months of having received the petition.  The 12-month finding may conclude that the listing action is not warranted, warranted, or warranted but precluded by pending proposals to list other species.  16 U.S.C. § 1533(b)(3)(B)(i)-(iii).  When the Service makes a 12-month finding, the ESA mandates that the Service publish certain information in the Federal Register.  Id.  The type of information published depends upon the finding made.

In 2013, the plaintiff filed listing petitions for two species.  While the Service made 90-day findings for each species concluding that listing may be warranted, the Service failed to make 12-month findings within 12 months of receiving the petitions.  Accordingly, the plaintiff filed suit, alleging that the Service failed to comply with Section 4 of the ESA by failing to make the 12-month findings within 12 months of receiving the petition.  In order to justify its standing to bring the suit, the plaintiff alleged that the organization had informational standing, organizational standing, and associational standing.  The Service moved to dismiss the complaint for lack of standing, and the district court granted the motion.

The plaintiff appealed, raising a single argument – that the district court incorrectly concluded that it lacked informational standing.  The D.C. Circuit explained that under Section 4 of the ESA, the Service’s obligation to provide the statutorily required information only arises after it issues a 12-month finding.  In support of this conclusion, the court found that the structure of Section 4 “makes clear that these requirements arise sequentially . . . .”  Because it was undisputed that the Service had not issued the 12-month finding – indeed, this was the very basis for filing the lawsuit – the D.C. Circuit found that the plaintiff lacked informational standing, and affirmed the dismissal of the complaint.

In affirming the dismissal, the D.C. Circuit noted that it was addressing a very limited question, and was not opining as to whether the plaintiff could demonstrate associational or organizational standing, or some injury based on “some other cognizable injury in fact.”  The court also noted that the decision does not preclude informational standing for all ESA Section 4 challenges.  In fact, the court opined that if a plaintiff’s complaint alleged that a 12-month finding had been made, and that the Service failed to include the information required by Section 4, a plaintiff “may well have informational standing to sue to compel the publication of the relevant data . . . .”

Fifth Circuit Upholds USFWS Designation of “Uninhabitable” Critical Habitat for Endangered Dusky Gopher Frog

Posted in Court Decisions, Critical Habitat, Fish & Wildlife Service, Legal

In a 2-1 decision, the United States Court of Appeals for the Fifth Circuit rejected challenges to the final rule designating critical habitat for the dusky gopher frog (Rana sevosa) under the Endangered Species Act (ESA) and National Environmental Policy Act.  Markle Interests, L.L.C. v. U.S. Fish and Wildlife Service, No. 14-31008 (5th Cir. June 30, 2016).  The decision is remarkable because it upholds the determination by the U.S. Fish and Wildlife Service (FWS) to designate areas as “critical habitat” that are not currently habitable by the frog and have not been shown likely to be habitable in the foreseeable future.  Slip Op. at 20–24.  While one might presume that Congress intended the term “critical habitat” to encompass only a subset of the habitat of a species—that is, those portions of a species’ habitat that are critical to its conservation—the panel majority held that critical habitat can include areas that do not currently constitute habitat and may never be habitable.

To designate unoccupied areas, the ESA requires FWS to determine that such areas are “essential for the conservation of the species.”  According to the majority, this language illustrates that Congress contemplated that critical habitat can include areas occupied by the species at the time of listing, as well as areas unoccupied by the species at the time of listing.  The panel majority applied Chevron deference to FWS’ interpretation of “essential,” which was considered in light of the ESA’s broad definition of “conservation” to encompass the use of all methods necessary to recover a species.

The dusky gopher frog spends most of its life underground in open-canopy pine forest habitat, migrating to isolated, ephemeral ponds to breed.  The final rule designating critical habitat for the species includes 4,933 acres in four counties in Mississippi and 1,544 acres in one parish in Louisiana.  Slip Op. at 4.  The designated area on private property in Louisiana (critical habitat “Unit 1”) has not been occupied by the species for decades, but is located in the species’ historic range and includes ephemeral ponds, though it currently lacks the upland habitat required by the frog. Id. at 4, 23.  Plaintiff landowners challenged only the designation of Unit 1 as critical habitat, and the Fifth Circuit held that the landowners did not show that FWS employed an unreasonable interpretation of the ESA in finding Unit 1 essential for the conservation of the frog without first establishing that Unit 1 currently supports, or in the foreseeable future will support, the conservation of the frog. Id. at 24.  Further, the majority rejected plaintiffs’ claims that the broad interpretation of “essential” is unreasonable because it would place no meaningful limits on the FWS’ power to designate critical habitat.

Designation of critical habitat for the dusky gopher frog was finalized under regulations for making such critical habitat determinations that have since been revised through a 2016 rulemaking. See 81 Fed. Reg. 7414 (Feb. 11, 2016) (codified at 50 C.F.R. part 424).  The 2016 regulations may have altered the panel’s analysis in certain respects, but likely would not have affected its decision to uphold the designation of areas as critical habitat that are not presently habitat for the species.

In a strongly-worded dissent accusing the majority of “reject[ing] the logical limits of the word ‘essential,’” Judge Owen concluded that FWS’ broad interpretation of “essential for the conservation of the species” unreasonably allowed FWS to impose restrictions on private land use even though: (1) the land has long been unoccupied by the species; (2) the land cannot sustain the species without substantial restoration and ongoing maintenance that FWS has no authority to effectuate on private lands; and (3) the land does not play any supporting role in sustaining current habitat of the species.  Slip Op. at 42, 53, 55 (Owen, J. dissenting).  Based upon a record indicating that there is no reasonable probability that Unit 1 will be altered in a way that will make it habitable—which would require removal of commercial timber operations, replanting with suitable trees, other modifications, and landowners’ cooperation in reintroduction of the species—Judge Owen reasoned that “whether there is a probability that the land will be so modified must be part of the equation of whether the area is ‘essential.’” Id. at 43, 52, 54.  The dissent further cautioned that the ESA “does not permit the Government to designate an area as ‘critical habitat,’ and therefore use that designation as leverage against the landowners, based on one feature of an area when that one feature cannot support the existence of the species and significant alterations to the area as a whole would be required.” Id.

While the dissent sought to retain greater meaning in the word “essential”—which serves as the primary statutory limit on the FWS’ discretion to designate unoccupied habitat—the Fifth Circuit upheld FWS’ exercise of authority to designate as critical habitat unoccupied areas on private lands that may never contain the physical or biological features required by the species.


Bipartisan ESA Bill Proposes Funding for State Programs

Posted in Congress, Conservation, Legislation, Regulatory Reform

In a year that has already seen its fair share of attempts to reform the Endangered Species Act (“ESA”), another proposal has made its way into the House of Representatives.  Representatives Don Young (R-Alaska) and Debbie Dingell (D-Michigan) introduced the “Recovering America’s Wildlife Act” (H.R. 5650) on July 7, 2016.  The bill is based on a plan unveiled by the Blue Ribbon Panel on Sustaining America’s Diverse Fish and Wildlife Resources four months ago.

H.R. 5650 would direct approximately $1.3 billion each year from federal energy and mineral development revenues into state-led conservation efforts.  The bill’s two sponsors hope that the funding, if passed, will assist states in implementing existing wildlife action and recovery plans meant to conserve the 12,000 species currently at the greatest risk of extinction.  It is also hoped that the funding will allow for public access to additional open spaces.  The bill itself describes the proposed action as making “funds available for management of fish and wildlife species of greatest conservation need as determined by State fish and wildlife agencies.”  The bill has been referred to the House Natural Resources Committee for review.

While many commentators do not expect H.R. 5650 to pass either the House or the Senate, it may trigger discussions of alternate means of funding species conservation and management with greater State-level involvement.

U.S. Fish and Wildlife Service Increases Civil Penalties

Posted in Fish & Wildlife Service, Regulatory Reform

The U.S. Fish and Wildlife Service (Service) published an interim rule (pdf) revising its civil procedure regulations for the assessment of civil penalties for violations of various laws and regulations within the Service’s jurisdiction.  The Service issued the revised procedures pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires agencies to update statutory civil monetary penalties to adjust for inflation.  The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

The revisions to the maximum civil penalties within the Service’s jurisdiction are as follows:

  • Knowing violation of section 1538 of the Endangered Species Act (ESA) increased from $25,000 to $49,467.
  • Other knowing violations of the ESA increased from $12,000 to $23,744.
  • Any other violation of the ESA increased from $500 to $1,250.
  • Any violation of the Bald and Golden Eagle Protection Act increased from $5,000 to $12,500.
  • Any violation of the African Elephant Conservation Act increased from $5,000 to $9,893.
  • Any violation of the Marine Mammal Protection Act increased from $10,000 to $25,000.
  • Knowing violation of the Lacey Act Amendments of 1981 increased from $10,000 to $25,000.
  • Any other violation of the Lacey Act Amendments increased from $250 to $625.
  • Violation of the Recreational Hunting Safety Act of 1994 involving use of force or violence or threatened use of force or violence increased from $10,000 to $15,909.
  • Any other violation of the Recreational Hunting Safety Act increased from $5,000 to $7,954.
  • Any violation of the Rhinoceros and Tiger Conservation Act of 1998 increased from $12,000 to $17,403.
  • Violation of section 4910(a)(1), (a)(2), or any permit issued under section 4911 of the Wild Bird Conservation Act increased from $25,000 to $41,932.
  • Violation of section 4910(a)(3) of the Wild Bird Conservation Act increased from $12,000 to $20,127.
  • Any other violation of the Wild Bird Conservation Act increased from $500 to $839.

These initial “catch up adjustments” to the Service’s civil penalties are effective July 28, 2016.  The Service must make subsequent inflation adjustments no later than January 15 every year hereafter.

Federal Wildlife Agencies Release Draft Revisions to Habitat Conservation Planning Handbook

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

On June 28, 2016, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released draft revisions to their joint Habitat Conservation Planning Handbook (Handbook).  The proposed revisions are intended to address concerns raised by the regulated community regarding the habitat conservation plan (HCP) program implemented under section 10 of the Endangered Species Act (ESA).

To apply for an incidental take permit under ESA section 10(a)(1)(B), an applicant must develop an HCP.  The Handbook, initially released in 1996 and revised by addendum in July 2000, is intended to instruct FWS and NMFS staff on how to assist applicants in developing HCPs in an efficient and effective manner, while ensuring adequate conservation for listed species.  According to FWS and NMFS, the proposed Handbook revisions:

  • Emphasize the benefits of pre-planning before jumping directly into HCP development;
  • Streamline the incidental take permit issuance process;
  • Clarify the concept of “maximum extent possible”;
  • Ensure consistency with other applicable FWS and NMFS policies;
  • Clarify the use of implementing agreements;
  • Update and clarify permit duration;
  • Provide guidance on addressing climate change; and
  • Provide guidance on when to initiate review under the National Environmental Policy Act.

According to FWS and NMFS, the proposed revisions are intended to address concerns raised by the regulated community, including that HCPs take too long to develop; implementation is too expensive; applicants perceive lack of certainty; and the benefits of the HCP program are not readily apparent to internal or external stakeholders.  The agencies are accepting comments on the proposed revisions until August 29, 2016.

Supreme Court Declines to Give Chevron Deference to Agency Regulation that Departed from Prior Agency Practice

Posted in Court Decisions, Litigation, Uncategorized

On June 20, 2016, the U.S. Supreme Court issued a 6-2 opinion in Encino Motorcars, LLC v. Navarro et al., holding that the U.S. Department of Labor (Labor Department) was not entitled to receive Chevron deference with respect to its 2011 regulation addressing overtime exemptions in the auto industry.  No. 15-415, slip op. (June 20, 2016).  So-called “Chevron deference” arose out of a 1984 Supreme Court decision holding that agency regulations receive deference where a statute is ambiguous and the agency’s interpretation is reasonable.  Chevron U.S.A. Inc. v. Natural Resource Defense Counsel, Inc., 467 U.S. 837, 842-844 (1984).

Justice Kennedy, writing the majority opinion, examined a 2011 regulation that departed from nearly 40 years of agency practice.  After issuing a proposed rule in 2008 that codified an agency position taken since 1978, the Labor Department issued a final rule taking an opposite position.  Petitioners were car dealerships whose employees had sued under the 2011 rule for violations of the Federal Labor Standards Act overtime provisions.  The district court granted summary judgment in favor of the car dealerships, but the U.S. Court of Appeals for the Ninth Circuit reversed, deferring to the Labor Department’s 2011 rule.  The Supreme Court disagreed with the Ninth Circuit’s finding that the rule was entitled to Chevron deference, and instead concluded that “where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law.”  Slip op. at 9.  Justice Kennedy further explained that:

When an agency changes it existing position, it ‘need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate’ . . . .  But the agency must at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’   

Id. (internal citations omitted).  The Court found that the 2011 rulemaking provided minimal explanation, and in light of the decades of industry reliance on the prior policy, “the explanation fell short of the agency’s duty why it deemed it necessary to overrule its previous position.”  Id.at 10.

Concurring and joined by Justice Sotomayor, Justice Ginsburg clarified that nothing in the majority opinion was meant to disturb well-established law.  Rather, an agency:

[N]eed not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.

Id. at 2 (Ginsburg, J., concurring).  In the dissent, joined by Justice Alito, Justice Thomas agreed with the denial of Chevron deference, but expressed disappointment with the majority’s decision to “punt” on the substance of the regulation.  Id. at 1 (Thomas, J. dissenting).

This case has potentially significant implications for environmental regulations.  Whether an agency is entitled to Chevron deference can greatly impact the outcome of a challenge to an agency’s regulation.  The regulated community and environmental organizations both frequently rely on Chevron deference arguments in lawsuits involving challenges to agency rules and the rulemaking process.  This case may impact challenges to agency rules, particularly those that depart from long-standing policies or where an agency issues a final rule differing significantly from a proposed rule.

Circuit Courts Tackle Question of Agency Liability Under the MBTA for Permitting of Wind Energy Facilities

Posted in Court Decisions, Fish & Wildlife Service

On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a right-of-way to a private company to develop and operate a wind energy facility.  Protect Our Communities Foundation v. Jewell, No. 14-55842, 14-55666 (9th Cir. June 7, 2016).

Plaintiffs argued that BLM—by granting a right-of-way to Tule Wind LLC (Tule)—was “complicit” in future conduct by Tule that might result in violations of the MBTA.  Beyond this assertion of direct, vicarious liability of BLM for future bird fatalities, plaintiffs asserted liability under the Administrative Procedure Act (APA) based upon BLM’s failure to condition its right-of-way grant on Tule securing take permits from the U.S. Fish and Wildlife Service (Service).  In rejecting both arguments, the Ninth Circuit held that the MBTA does not contemplate vicarious liability of agencies that act in a purely regulatory capacity where those regulatory actions do not directly or proximately cause the “take” of migratory birds.  The BLM authorization for Tule to construct and operate a wind energy facility on public lands was held not to “take” migratory birds without a permit under the MBTA.  Further, the court concluded that BLM was not required to condition its right-of-way approval, holding that the APA and MBTA place no affirmative duty on BLM to guarantee a grantee’s compliance with the MBTA or prevent future unlawful action by a grantee.

This decision does not comment on whether incidental take of migratory birds by a wind energy facility is a violation of the MBTA.  The Court was cautious to avoid interpreting whether the MBTA prohibits incidental take of migratory birds and did not address either the existing circuit split on whether incidental take is prohibited by the MBTA or the fact that no incidental take permit program yet exists under the MBTA.

Interestingly, Tenth Circuit judge Timothy Tymkovich sat by designation on the Ninth Circuit panel that heard this case.  Judge Tymkovich authored the Tenth Circuit opinion in U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010), holding that the MBTA is a strict liability statute, containing no intent requirement, which is violated by the incidental take of migratory birds where that “take” is foreseeable.  However, in Protect Our Communities Foundation v. Jewell, the Ninth Circuit tacitly declined to address the issue of MBTA liability arising from incidental take.

The Ninth Circuit’s decision has already been cited by the government in ongoing litigation in the U.S. Court of Appeals for the D.C. Circuit involving the Cape Wind offshore wind energy development.  Public Employees for Environmental Responsibility v. Hopper, No. 14-5301.  The government has cited the case to support its position that, where an agency acts in a purely regulatory capacity, it is not liable under the MBTA for migratory bird fatalities caused by a regulated entity’s future actions.

While the judiciary continues to develop MBTA jurisprudence, the Service is in the process of developing regulations to: (1) define MBTA-prohibited “take” to encompass incidental take occurring unintentionally as a result of otherwise lawful activities; and (2) establish an incidental take permit program. However, the ultimate fate of these regulations remains uncertain.

D.C. Circuit Holds Injury Exists Where Statutory Enactment Denies Plaintiff’s Right to Information; Upholds Section 9 Exemption for Antelope Species

Posted in Court Decisions

On June 3, 2016, the U.S. Court of Appeals for the D.C. Circuit held in Friends of Animals v. Jewell (No. 1:14-cv-00357) that Plaintiff Friends of Animals (“Plaintiff”) had Article III standing to pursue a constitutional claim on the ground of informational injury.  The court, however, rejected the merits of Plaintiff’s challenge to a U.S. Fish and Wildlife Service (“FWS”) regulation establishing a limited exemption from the Endangered Species Act’s (“ESA”) section 9 take prohibition for three antelope species (scimitar-horned oryx, Oryx dammah; addax, Addax nasomaculatus; and dama gazelle, Gazella dama).  The D.C. Circuit’s decision expands the U.S. Supreme Court’s holding in FEC v. Akins, 524 U.S. 11, 21 (1998), providing that a plaintiff suffers injury-in-fact when the plaintiff fails to obtain information that must be publicly disclosed pursuant to a statute.  Under the D.C. Circuit’s ruling, informational injury may also exist where a statutory enactment negates a plaintiff’s right to information.

In 2005, FWS listed the antelope species as endangered throughout the world and on that same day issued a final regulation exempting entities and individuals that breed antelope species for sport hunting programs from the ESA’s section 9 take prohibition.  Under the exemption, FWS allowed qualified owners of domestic, captive-bred antelope to engage in activities otherwise constituting prohibited take without applying for individual permits on a case-by-case basis.  Oryx, addax, and dama gazelle are native to northern Africa and are believed to be extirpated in the wild, although a substantial number of individuals exist in captivity.

In 2009, a district court invalidated the exemption as contrary to the ESA’s section 10 incidental take permit program.  The district court’s decision was rendered obsolete in 2014 under the Consolidated Appropriations Act of 2014 (“Appropriations Act”), directing FWS to reinstate the exemption.  FWS reinstated the exemption in accordance with Congressional mandate in March 2014.

Plaintiff challenged the reinstated exemption on the grounds that the relevant provision of the Appropriations Act violates the constitutional separation of powers.  Plaintiff also challenged the exemption under the Administrative Procedure Act (“APA”), arguing that FWS’ action to reinstate the exemption was contrary to ESA section 10.

Reversing the district court, the D.C. Circuit held that Plaintiff had standing to pursue the constitutional claim on the ground of informational injury.  The court reasoned that the Appropriations Act denied Plaintiff information that would have otherwise been made available under ESA section 10.  As such, the D.C. Circuit concluded that Plaintiff demonstrated injury-in-fact.

While Plaintiff’s prevailed on procedural grounds, the D.C. Circuit denied Plaintiff’s claims on the merits, holding that “Congress undoubtedly may change the precedential value of a decision by passing prospective legislation.”  The Court also held that FWS complied with the APA when it reinstated the exemption.

USFWS Issues 90-day Finding for Midwestern Moose Population

Posted in Fish & Wildlife Service, Listing

On June 2, 2016, the U.S. Fish and Wildlife Service (Service) issued a 90-day finding that listing populations of the Northwestern moose (Alces alces andersoni) under the Endangered Species Act (ESA) may be warranted.  The Service’s 90-day finding is in response to a petition filed in July 2015 by the Center for Biological Diversity and Honor the Earth, which asked that the moose be listed as a threatened or endangered distinct population segment (DPS).

The U.S. population of Northwestern moose inhabits the upper peninsula of Michigan, Minnesota, North Dakota and Wisconsin.  In recent years, the U.S. population of moose has suffered significant declines due to climate change, habitat degradation, and disease, among other factors.  In Minnesota alone, the species suffered approximately a 60 percent decline in the past decade.  The Center for Biological Diversity’s petition requests that the moose populations in northern Minnesota, northeast North Dakota, the Upper Peninsula of Michigan, and Isle Royale be listed under the ESA as a DPS.

Based on the Service’s finding that listing of the moose as a DPS may be warranted, the Service is commencing a 12-month status review of the species.  Moose populations in the Northeast, Rocky Mountains, and Alaska are not included in the Service’s status review.  Comments on the Service’s finding will be accepted until August 2, 2016.

Wolf-Rider Introduced in House Funding Bill

Posted in Congress, Fish & Wildlife Service, Legislation

As recently reported by the Center for Biological Diversity, a rider has been proposed for an appropriations bill that would provide $1.5 billion to the U.S. Fish and Wildlife Service in 2017.  The controversial rider would remove current Endangered Species Act protections for gray wolf populations in Michigan, Wisconsin, Minnesota, and Wyoming.  The appropriations bill, which is currently making its way through the House of Representatives, was before the House Subcommittee on Interior, Environment, and Related Agencies on May 25, 2016.