Calling on The "God Squad"

As reported by Kristi Pihl of the Tri-City Herald earlier this week, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under the federal Endangered Species Act (ESA) to seek to exempt those who operate on the rivers from having to provide any further mitigation for the local salmon and steelhead populations. 

In the 1979 amendments to the ESA, Congress created the Endangered Species Act Committee (aka, the "God Squad").  The God Squad has the authority to exempt an agency action from the requirements of section 7(a)(2) of the ESA if the God Squad makes certain determinations.  The God Squad is composed of seven members:  the Secretary of Agriculture, Secretary of the Army, Chairman of the Council of Economic Advisors, Administrator of the Environmental Protection Agency, Secretary of the Interior, Administrator of the National Oceanic and Atmospheric Administration, and one individual from the affected State, as determined by the Secretary of the Interior and appointed by the President.  The God Squad process is initiated when a Federal agency, a Governor of the State in which an agency action will occur, or in certain circumstances, a permit or license applicant, submits an application to the Secretary of Commerce or Secretary of the Interior (the recipient of the application depends upon which species is being impacted).  In order for the exemption to be granted, five out of the seven members of the God Squad must vote in favor of the exemption.

As stated in the report by Kristi Pihl, the request was prompted by a notice of intent to sue sent to the Bonneville Power Administration alleging that the company had failed to comply with the ESA.

En Banc Ninth Circuit Holds ESA Consultation Requirement Applies to Renewal of Long-Term Water Contracts

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

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California Fish and Game Commission Delays Listing Decision for Gray Wolf

 The Los Angeles Times reports that the California Fish and Game Commission (Commission) unanimously voted to postpone a decision on whether to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA). As we previously reported, the California Department of Fish and Wildlife recommended in February 2014 that the Commission not list the gray wolf under CESA, determining that the scientific evidence does not warrant listing the species at this time. The issue arose in 2011 when a single wolf, OR-7, was spotted in California for the first time.

The five-member panel delayed the Commission’s decision for 90 days following lengthy public debate at yesterday’s hearing. The Commission will hold an additional hearing to consider the issue in June.

Natural Resources Committee Discusses Endangered Species Act Reform

Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.

As previously reported, an ESA Congressional working group released a final report stating that the ESA “is not working.” The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.

One of the bills discussed at the hearing, H.R. 4315, would require the Secretary of the Interior to publish the “best scientific and commercial data available” used to support a listing decision. Currently, not all data is released to the public, such as proprietary information. According to a report by Emily Yehle from E&E news, critics of the bill claim that the scope of its reach is too broad. For example, sometimes information is classified data from the U.S. Department of Defense. H.R. 4317, seeks to define the “best scientific and commercial data available” to include “all data submitted by a State, tribal, or county government.” Critics claim this bill would presume that data from a State, tribal, or county government is the “best” data available, thus negating the purpose of requiring use of the “best” available data – regardless of its source.

Additionally, H.R. 4316, would require the U.S. Fish and Wildlife Service to disclose the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to litigation efforts, and any attorneys’ fees paid to successful litigants. H.R. 4318, would limit reimbursement of attorneys’ fees to $125 per hour.

District Court Holds That the Incidental Take Statement Requirement Under Section 7 of the Endangered Species Act Does Not Apply to Listed Plant Species

Last Thursday, a U.S. District Court for the Northern District of California held (pdf) that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species.

In Center for Biological Diversity v. Bureau of Land Management, No. C 03-02509 SI (N.D. Cal. Apr.3, 2014), environmental group plaintiffs challenged a biological opinion issued by the U.S. Fish and Wildlife Service (Service) to the Bureau of Land Management (BLM). BLM had engaged in section 7 consultation with the Service regarding BLM’s management of the Imperial Sand Dunes Recreation Area in southeast California, an area home to rare species that is often frequented by off-road vehicle enthusiasts. Specifically, BLM sought consultation for potential management impacts on Peirson’s milk-vetch (Astragalis magdalenae var. peirsonii), a threatened plant species. After consultation, the Service issued a biological opinion that did not contain an incidental take statement for Peirson’s milk-vetch.

Under section 7 of the ESA, if a biological opinion concludes that a federal action is not likely to jeopardize the continued existence of a listed species but that the action is likely to result in incidental take of that species, the agency issuing the biological opinion must include an incidental take statement covering that species. Usually, the required incidental take statement only covers animal species. In this case, the environmental groups argued that an incidental take statement must be issued for plants as well.

Noting that no court has ever held that section 7 requires an incidental take statement for listed plants, the court disagreed with the environmental groups. The court looked to the structure and legislative history of the ESA to support its conclusion. Specifically, the court noted that section 9 of the ESA only prohibits take of listed fish or wildlife, not plant species; the take provisions in section 10 likewise only apply to animals.

District Court Upholds Controversial Settlement Agreements between U.S. Fish and Wildlife Service and Environmental Groups

This week, the United States District Court for the District of Columbia upheld (pdf) two settlement agreements – one between the U.S. Fish and Wildlife Service (Service) and WildEarth Guardians, and the other between the Service and the Center for Biological Diversity – that collectively require the Service to determine whether to list 251 species under the Endangered Species Act (ESA) in accordance with certain deadlines. See National Association of Home Builders v. U.S. Fish and Wildlife Service, No. 12-2013 (Mar. 31, 2014).  Plaintiffs, who included organizations representing landowners and businesses in areas where the 251 species may occur, argued the settlement agreements violate the procedural requirements of section 4 of the ESA because they prohibit the Service from determining that protection for a species is warranted, but precluded by higher priority listings. Defendants moved to dismiss the case for lack of jurisdiction and failure to state a claim. The court granted defendants’ motion, finding plaintiffs could not demonstrate standing – specifically, injury in fact – because the settlement agreements do not require any specific substantive outcome; the agreements only require the Service to make determinations pursuant to a set schedule. For further information regarding the controversial settlement agreements, please see our posts dated December 10, 2013 and May 11, 2011.

FTA and FHWA Issue New MAP-21 Guidance That Could Penalize Wildlife Agencies

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or environmental assessment for a "highway project, public transportation capital project, or multimodal project," any other Federal agency that has the authority to issue or deny a permit, license, or other approval related to the project shall act by:  "(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and (II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969."  23 U.S.C. 139(h)(6)(B)(i)(I) and (II).  Further, if the Federal agency fails to act within this time period, MAP-21 authorizes the rescission of federal funds from the delinquent Federal agency.  23 U.S.C. 139(h)(6)(B)(i).  Depending on the type of project, and subject to certain caps, the penalty could amount to as much as $20,000 per week for each week until a final decision is made.  

On March 28, 2014, the FTA and FHWA issued a joint guidance document interpreting the penalty provisions described above.  Notably, the joint guidance document states that the penalty provisions apply to, among other decisions, "determinations, concurrences, and other information that concludes an informal or formal consultation process [under the Endangered Species Act] that is necessary in order for a project to proceed."  Thus, at first blush, it appears that the penalty provision might finally spur the Federal wildlife agencies to complete their formal section 7 consultations in a somewhat timely manner (while the Endangered Species Act establishes a 135-day deadline for completion of formal section 7 consultations, the Federal wildlife agencies routinely fail to meet this statutory time period).  However, the joint guidance document also provides a get out of jail free card. 

As explained in the joint guidance document, the 180-day clock will not begin until the Federal agency confirms receipt of a "complete" application or formal request.  And, the FTA and FHWA have decided to leave the Federal agency with the "responsibility to make the determination of whether an application or formal request for a permit, license, or other approval is complete and track the 180-day period for their review."  Thus, as explained in the joint guidance document, a Federal agency can avoid any penalties if it deems the application or formal request incomplete, and provides the FTA or FHWA with a similar notification.  As explained in the joint guidance document, a Federal agency can also stop the clock, even if it has received a complete application, if it "routinely requests additional information from the applicant as it progresses through its review."  In this situation, the 180-day clock would not start again until the Federal agency confirms receipt of the additional information.

The joint guidance document also explains that a Federal agency can avoid penalties by requesting a "no-fault certification" demonstrating that the agency is not able to render a decision because it has not received necessary information from another agency, or there is significant new information or circumstances that require additional analysis. 

In light of the budget cuts already impacting a number of Federal agencies (e.g., EPA, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Army Corps of Engineers), the ability to avoid weekly penalties of up to $20,000 by simply requesting additional information may be too tantalizing to pass up.  And, if that is the case, do the penalty provisions actually expedite the necessary review or slow it down?   

U.S. Fish and Wildlife Service Announces Listing of Lesser Prairie-Chicken

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the lesser prairie-chicken. Over the past decade, a number of conservation programs have been implemented across the species’ five-state (Texas, New Mexico, Oklahoma, Kansas and Colorado) range, including the 2013 Western Association of Fish and Wildlife Agencies’ (WAFWA) Lesser Prairie-Chicken Range-Wide Conservation Plan. Collectively, these efforts are similar to a recovery plan. 

There had been some fear among landowners that the Service’s listing would have a severe adverse impact on the energy industry and private developers. The Service’s approach is anticipated to provide regulatory certainty for landowners and businesses enrolled in WAFWA’s range-wide conservation plan and the U.S. Department of Agriculture’s Lesser Prairie-Chicken Initiative. The special rule will allow for incidental take of the lesser prairie-chicken associated with: (1) activities conducted pursuant to WAFWA’s Lesser Prairie-Chicken Range Wide Conservation Plan; (2) conservation practices carried out in accordance with a conservation plan developed by the Natural Resources Conservation Service in connection with the Lesser Prairie-Chicken Initiative; and (3) the continuation of routine agricultural practices on existing cultivated lands.

The Service determined that listing critical habitat for the lesser prairie-chicken is prudent, but cannot be determined at this time. The Service has one year from the final listing determination to propose any critical habitat for the species.

U.S. Fish and Wildlife Service Proposes to Reclassify California Toad

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain milk-vetch, Modoc sucker, and Santa Cruz cypress.  In the 12-month finding and proposed rule, the Service stated that while "there are still significant threats impacting the arroyo toad currently and into the future . . . , we conclude that the overall magnitude of threats impacting the arroyo toad has decreased since the time of listing, due in part to implementation of conservation and management actions."  The Service cited operation of dams and water diversions, urban development, introduced predator species, and drought as some of the most significant threats to the arroyo toad.  According to the 12-month finding and proposed rule, comments must be received or postmarked on or before May 27, 2014.       

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California Court Recognizes Conservation Exception to Fully Protected Species Law

On an issue of first impression, a California court has created a judicial exception to the “take” prohibition in the state’s fully protected species statutes.  On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited “take” of the species.  Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf).  The decision addresses a common conundrum in California:  whether actions to protect a species authorized by the state and federal endangered species acts are nevertheless prohibited by the state’s fully protected species law.  The decision is the latest round in the long-running battle over the development of the Newhall Ranch project in northern Los Angeles County.

As a condition of approval of its project, the landowner agreed to implement various measures to protect the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) – a fish protected by the state and federal endangered species acts and also by the California fully protected species law.  The measures included live trapping and transplanting of the stickleback away from construction areas.  The petitioners argued that the trapping and translocation measures would necessarily result in “take” of the stickleback prohibited by the fully protected species law.

The court read the “take” prohibition in the fully protected species law in conjunction with the definition of “conservation” in the California Endangered Species Act to conclude that the measures to conserve a species, including trapping and transplanting the species, do not constitute “take” prohibited by the fully protected species law. The decision is an important interpretation of the interplay of the two state laws and should provide greater flexibility to project proponents seeking to implement measures designed to conserve a fully protected species.

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