On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.) The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County. The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act (CEQA) allowed the Department to adopt a greenhouse gas threshold of significance based on the “Business as Usual” methodology adopted by the California Air Resources Board in its A.B. 32 Scoping Plan, (2) whether the Department’s measures requiring the collection and transplantation of a fully protected fish (the unarmored threespine stickleback) to avoid project impacts is “take” in violation of the state law prohibition on take of a fully protected species, and (3) whether CEQA restricts judicial review to issues raised prior to the close of comments on a draft EIR.
With respect tot he fully protected species issue, the Court is attempting to determine whether the Department complied with the California Fish and Game Code’s prohibition on the “take” of fully protected species when the Department approved conservation measures allowing for the collection and transplantation of the unarmored threespine stickleback from the project site to other suitable areas of the Santa Clara River by a biologist licensed to perform such activities. Complicating matters, the particular fully protected fish species at issue is listed under both the California Endangered Species Act and the Federal Endangered Species Act, which both allow for collection and transplantation to occur for conservation purposes. The Justices’ questions and comments did not suggest a clear majority position on this issue. Justices Cuéllar and Liu posed challenging questions to counsel for both sides. Justice Cuéllar suggested that the Court should defer to the Department unless the Department’s interpretation is clearly wrong. He later suggested, however, that the Court should interpret each term in the definition of “take” in the Fish and Game Code to have independent meaning. Justice Liu suggested that the Department’s collection and transplantation measure qualified as an allowable conservation measure in the Fish and Game Code (and therefore was not take), but later implied that the measure constituted take. The Chief Justice and Justice Werdegar expressed concern regarding the practical impact of a decision that state law prohibits conservation measures meant to protect the stickleback and other such fully protected species because the conservation measures themselves constitute “take.”
For discussion of the additional issues the Court is contemplating, please refer to our E-Alert on the case. The Court is expected to issue its decision in the case by early December 2015.
Nossaman filed an amicus curiae brief in the case on behalf of several public transportation and water agencies.
On September 1, the U.S. District Court for the Western District of Texas, Midland Division vacated the U.S. Fish and Wildlife Service’s (“Service”) Final Rule listing the Lesser Prairie Chicken (“LPC”) as threatened. The Service had published its final rule listing the LPC as threatened on April 10, 2014 amidst significant controversy as to whether the listing was needed. In conjunction with the decision to list the LPC as a threatened species, the Service issued a “special take rule” under section 4(d) of the Endangered Species Act. The 4(d) Rule allowed those who participate in the Western Association of Wildlife Agencies (“WAFWA”) Range-wide Plan (“Plan”) to be exempt from the ESA Section 9 prohibition.
WAFWA’s initial intent for developing the Plan was to prevent a LPC listing through voluntary conservation efforts. As we’ve seen similar efforts have been made for the dunes sagebrush lizard and the greater sage grouse with success in the former instance and yet to be seen in the latter. After the April 2014 listing, several lawsuits were filed challenging the Service’s decision from all angles. This week’s ruling is the result of a challenge from the Permian Basin Petroleum Association and several New Mexico counties. Plaintiffs challenged the Service’s listing decision on three grounds: (1) whether the Service properly followed the Service’s own regulations for evaluating conservation efforts; (2) whether the Service provided a rational decision to list the LPC as threatened based on the best available science; and (3) whether the Service properly responded to Plaintiffs’ comments during the rulemaking process. The court denied Plaintiffs claims on the latter two grounds, but held in favor of Plaintiffs on the first ground and vacated the listing.
In 2003, the Service promulgated a “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” known as the “PECE Policy.” The PECE Policy sets forth a two part evaluation: (1) whether the conservation plan will be implemented; and (2) whether the conservation effort will be effective. The two-part evaluation includes consideration of fifteen criteria. The court found that the Service improperly conducted a PECE evaluation when considering the Plan, and that such failure invalidated the Service’s listing decision.
The court pointed to a number of errors in the Service’s PECE evaluation. The court questioned the Service’s assumption that not listing the LPC would remove any incentive for industry to enroll in the Plan, and found that the assumption was unsupported and lacking analysis. This assumption, in turn, carried over to the first prong of the PECE analysis. The court also found the Service’s assessment of the second PECE prong to be arbitrary and capricious. In particular, the court focused on the Service’s failure to account for a main component of the Plan – how additional habitat and access to that habitat is created to ameliorate the effects of drought and habitat fragmentation. The court also emphasized the Service’s failure to analyze the projected effects of the Plan beyond the present and short term. Finding that the Service’s errors in its PECE analysis of the Plan “tainted critical findings and determinations, resulting in an unwarranted final rule listing the LPC as a threatened species,” the court vacated the listing decision.
The implications of this decision are significant. The LPC listing significantly affected several industries across the species’ five-state range (Texas, Oklahoma, Colorado, Kansas, New Mexico). In the Plan’s 2014 annual progress report, WAFWA reported receiving over $45 million in enrollment and impact fees from over 174 different companies participating in the Plan. It is possible the Service may move to stay vacatur of the listing rule while it appeals the district court’s decision. The Service could also invoke its emergency listing provisions and emergency list the LPC for 270 days. However, it is also possible the Service could undertake a new PECE evaluation of the Plan, take into consideration the $45 million in enrollment and increased LPC population over this past year, and issue a rule declining to list the LPC. For the moment, however, the LPC is not protected under the ESA.
On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta). The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in the BiOp that the activities of the seven fisheries are not likely to jeopardize the continued existence of the Northern Atlantic DPS. The BiOp was accompanied by an Incidental Take Statement (ITS) authorizing take of up to 483 turtles per year. The plaintiff challenged several aspects of the BiOp and ITS, asserting: (1) the Service failed to consider cumulative and aggregate effects (2) the Service failed to consider the effects on loggerhead sea turtle recovery; (3) the BiOp’s ten-year term was inappropriately short (4) the BiOp failed to adequately address climate change impacts; and (5) the monitoring regime proposed in the ITS was inadequate. The court, in reaching its conclusions, relied heavily on its 2014 opinion considering, and largely denying, a similar challenge to the Service’s Atlantic Sea Scallop Fishery BiOp.
The court found that the Service had appropriately analyzed cumulative effects, aggregate effects, and the effects on the Northwest Atlantic DPS sea turtle recovery. The court also found that the Service’s decision to limit its BiOp to a ten-year term was not arbitrary and capricious. The court did, however, remand the BiOp to the Service to address issues related to the Service’s treatment of climate change and ITS monitoring regime.
With regard to climate change, the court found fault with the Service’s treatment of the short term effects caused by climate change. In particular, the court stated that “the BiOp does not include . . [a] sufficient explanation of the link between the substantial evidence of significant short-term climate change effects, which the BiOp acknowledges, and the agency’s ultimate conclusion that any short-term impacts on loggerheads will be negligible.” As to the monitoring regime, the court held that the ITS did not sufficiently explain how the Service will monitor whether take limits have been exceeded. The BiOp called for take estimates to be produced every five years, however under Service regulations, the Service is obligated to reinitiate consultation under section 7 of the Endangered Species Act immediately upon exceeding the incidental take authorized by an ITS. The court found it unclear how the Service can meet its regulatory obligations where monitoring is done in five-year increments.
The court rejected the plaintiff’s request to vacate the BiOp. Instead, the court remanded the BiOp and concluded there was a “fair possibility that [the Service] will be able to justify its choices ‘through more thorough and informative explanation.’”
On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus). The murrelet is listed as a threatened species under the Endangered Species Act (ESA). The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011. 61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.
The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District of Columbia’s decision in American Forest Resource Council (AFRC) v. Ashe, 946 F. Supp. 2d 1 (D. D.C. 2013), aff’d 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015). In that case, AFRC sought to compel the Service to delist the murrelet and vacate its critical habitat designation. The Court granted in part AFRC’s motion for summary judgment. Following the decision, the Service voluntarily requested that the matter be remanded, without vacatur, so that the Service could undertake a review of the murrelet’s designated critical habitat, taking into account all of the scientific information developed since the murrelet’s last status review in 2011.
In 1996, the Service designated approximately 3,887,800 acres of critical habitat in California, Oregon and Washington. 61 Fed. Reg. 26,256. When the Service reexamined this determination in 2011, the Service amended the prior critical habitat determination to include only 3,697,100 acres of critical habitat, composed of 37 subunits in Washington, 33 in Oregon, and 31 in California. 76 Fed. Reg. 61,599. The current proposal is to reaffirm the 2011 critical habitat determination.
The proposed rule states that the Service is accepting comments on its proposal until October 26, 2015.
Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence. (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015). In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer’s raisin crop qualified as a “clear physical taking” requiring compensation under the Fifth Amendment to the U.S. Constitution. Writing the decision for the majority, Chief Justice Roberts distinguished the raisin farmer’s situation from the oyster farmer’s situation addressed in Leonard & Leonard v. Earle, 279 U.S. 392 (1929), explaining that unlike the raisins at issue in Horne, the oysters at issue in Leonard belonged to the state, and therefore requiring the oyster farmer to turn over a percentage of the shucked shells did not result in a taking of private property requiring compensation under the Fifth Amendment. Mr. Jacobs’ article focuses on this aspect of Horne, and asks whether Chief Justice Roberts breathed new life into a potential takings defense for ESA determinations and regulations. Specifically, did Chief Justice Roberts’ decision resuscitate the concept of public ownership of wild animals? If it did, at least one individual quoted in the article opines that the concept could be used to justify regulating activities on private property (e.g., prohibiting construction that directly impacts a listed species), or limiting use of a related resource (e.g., regulating the flow of water for the benefit of ESA protected fish species), all without running afoul of the Fifth Amendment. Notably, however, the majority of those quoted in the article caution that Chief Justice Roberts’ statement should not be read to apply beyond its limited facts. While I personally find the latter position to be the more compelling of the two, I also anticipate that the Government will be raising the defense in the not too distant future.
Photo: U.S. Fish and Wildlife Service
On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey. Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5. In pertinent part, these sections make it unlawful to “take, possess, or needlessly destroy” the nest or eggs of any bird (section 3503) or any bird-of-prey (section 3503.5). In short, the laws prohibit the take of non-endangered or non-threatened nesting birds and birds-of-prey.
The provisions have caused confusion for many years regarding what activities trigger the sections’ prohibitions; the Department believes that the new regulations will help clarify the sources of confusion. Among other things, the proposed regulations will define key terms, specify exceptions to the take prohibitions, and describe the Department’s consultation role in implementing the California Environmental Quality Act (CEQA), as that statute relates to conserving populations of birds The Department maintains that through outreach to various stakeholders, the Department “has developed a clear understanding of the challenges these prohibitions present to agriculture, forestry, the building industry, transportation agencies, utilities and others, as well as the concerns held by environmental and conservation organizations….”
According to the Department, the regulations are “the most reasonable interpretation of these statutes that implements the Legislature’s intent and balances stakeholder concerns with the Department’s conservation mission.” Notably, the Department is not proposing to create a separate permit system for nesting birds and birds-of-prey, but plans to use the proposed regulations to integrate CEQA with the current code sections.
The stated deadline for public comment on the proposed rulemaking is September 28, 2015.
On August 6, 2015, the California Fish and Game Commission (Commission) voted to list the southern Sierra Nevada evolutionarily significant unit of the fisher (Pekania pennati) as a threatened species under the California Endangered Species Act, but determined not to list the northern California evolutionarily significant unit. In doing so, the Commission followed the recommendation of the California Department of Fish and Wildlife (Department).
According to the Department’s status review, “[n]ative populations of fishers currently occur in Canada, the western United States (southwestern Oregon, California, Idaho, and Montana) and in portions of the northeastern United States (North Dakota, Minnesota, Wisconsin, Michigan, New York, Massachusetts, New Hampshire, Vermont, and Maine).” The status review goes on to state that “[i]n California, fishers inhabit portions of the Coast Range, Klamath Mountains, southern Cascade Mountains, northern Sierra Nevada, and the southern Sierra Nevada.” The southern Sierra Nevada evolutionarily significant unit of the fisher extends from Kern County in the south to Mariposa County in the north.
Senator Dianne Feinstein (D-CA) introduced a bill last week to help address ongoing and future drought in California. The bill, known as the California Emergency Drought Relief Act (Act), is expected to be folded into broader legislation addressing the historic drought in the Western United States. The bill’s goals are to move existing water supplies and develop new water sources in order to help those communities suffering the worst effects of the drought, while complying with the existing regulatory regime under the Endangered Species Act and the Clean Water Act. Senator Feinstein’s bill will compete with H.R. 2898, sponsored by Representative David Valadeo (R-CA), which passed in the House on July 16, 2015.
The Act outlines a process for emergency releases of water to Central Valley Project (CVP) agricultural, municipal and industrial contractors, CVP refuge service and repayment contractors, State Water Project (SWP) contractors, and other localities and municipalities in the State. The Act would also authorize streamlined environmental review procedures for water deliveries addressing emergency drought conditions, and delegate the design of such streamlined procedures to the Council on Environmental Quality and the applicable federal agency.
With respect to species protection, the Act would authorize appropriations of $4,000,000 annually through 2020 for the implementation of the Recovery Plan for the Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, and Central Valley steelhead. The Act also includes provisions for evaluating nonstructural barriers at Sacramento-San Joaquin Bay-Delta (Delta) cross-channel gates and other key Delta junctions to prevent straying of threatened or endangered salmonids, as well as measures to reduce predation and enhance habitat for threatened and endangered Delta species. In addition, the Act directs the Secretary of the Interior to initiate studies by January 1, 2016 on the location and distribution of the federally threatened delta smelt throughout its range and to determine methods to minimize the effects of the CVP and SWP operations on the delta smelt, among other measures.
The Act also casts a wide net to reduce the risk of a water deficit in the face of current and potential future drought conditions in California, providing for a new U.S. Department of Agriculture program to help stabilize water supplies for small rural and disadvantaged communities, and funding for select desalination projects and water storage, water recycling, water conservation and groundwater recharge projects.
On July 24, 2015, the U.S. Fish and Wildlife Service (Service) published a notice seeking authorization from the Office of Management and Budget to evaluate habitat conservation banks established under the Endangered Species Act (ESA) through a survey of bank sponsors and managers. 80 Fed. Reg. 44,147. The Service and the Department of the Interior’s Office of Policy Analysis state that they are undertaking this effort to “identify potential institutional or other impediments to the habitat conservation banking program, and develop possible options for encouraging expanded use of the program.”
As of January 2015, 132 habitat conservation banks were approved by the Service. The upcoming survey is designed to encompass all types of entities that sponsor habitat conservation banks—at both the corporate, or organizational, and the individual bank level—and aims to gather the following information through voluntary responses: (1) background information on the banks; (2) information about experience with the conservation banking program; (3) perceptions of technical and institutional obstacles encountered in the conservation banking program; and (4) perceptions of incentives that would help foster successful banks.
At this stage, the Service is requesting comments on the survey itself, specifically: (1) whether or not it is necessary and of practical utility; (2) the accuracy of the Service’s estimate of the burden for the survey; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the survey on respondents. The notice states that public comments on the survey are being accepted through August 24, 2015.
Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar. Below is a quick summary of some of the more significant items:
July 16, 2015 – The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security Act of 2015, by a vote of 245-176. The Act, which is intended to ease some of the effects of the unprecedented drought gripping California, requires, among other things, for the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Bureau of Reclamation to work with various California agencies and interested parties to increase water exports from the Central Valley Project and State Water Project. Immediately after the House passed the Act, a number of environmental groups voiced their opposition, citing potential impacts to federally protected fish species. Whether the House’s actions will result in any relief for California is still very much up in the air, as reports indicate that even if Republicans are able to garner the necessary Democratic votes to have the Act pass the Senate, the President is likely to veto the Act. (See July 16, 2015 Los Angeles Times article by Colin Diersing and Monte Morin.)
July 16, 2015 – The U.S. Fish and Wildlife Service and National Marine Fisheries Service announced a 60-day extension of the public comment period for proposed revisions to the Endangered Species Act petition regulations. According to the announcement, public comments will now be accepted if received on or before September 18, 2015. For a further discussion of the proposed revisions, see our May 19, 2015 post.
July 20, 2015 – People for the Ethical Treatment of Animals (PETA) filed a federal lawsuit against the Miami Seaquarium alleging that by keeping Lolita, a killer whale (Orcinus orca), in captivity, the Seaquarium is violating the Endangered Species Act (ESA). (See PETA’s July 20, 2015 Update.) Lolita is the only captive member of the Southern Resident killer whale Distinct Population Segment (DPS). While the 2005 DPS listing under the ESA excluded captive members of the species from ESA protection, an amendment in early 2015 eliminated that exclusion. (See our prior posts for additional background: January 31, 2014, January 22, 2015, February 16, 2015.)