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Endangered Species Law and Policy

High Court Denies Petition by Parties with Reclamation Contracts Seeking to Avoid ESA Consultation

Posted in Court Decisions

On November 17, the U.S. Supreme Court denied the petition for writ of certiorari filed by Glenn Colusa Irrigation District and others seeking to overturn a decision by the United States Court of Appeals for the Ninth Circuit (en banc) holding that the Bureau of Reclamation’s decision to renew water contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act.  Our prior post regarding the petition is available here.

E&E reporter Jeremy Jacobs wrote in Greenwire today that the Supreme Court “left in place an appeals court ruling that required the Interior Department to conduct a more extensive review of how California water contracts would affect threatened delta smelt before renewing them.”

Reading the Tea Leaves: U.S. Fish & Wildlife Service Lists, Designates Critical Habitat for Gunnison Sage-Grouse – Is the Greater Sage Grouse Next?

Posted in Critical Habitat, Listing

Image courtesy of the U.S. Fish and Wildlife Service by Gary Kramer

On November 12, 2014, the U.S. Fish & Wildlife Service (Service) listed as “threatened” and designated over 1.4 million acres of critical habitat for Gunnison sage-grouse (Centrocercus minimus), the smaller cousin of the greater sage-grouse (Centrocercus urophasianus).  The Gunnison sage-grouse’s (Gunnison) current range is limited to southwestern Colorado and southeastern Utah.

The regulations came as a blow to the State of Colorado, landowners, and others who have devoted considerable resources to the conservation of the Gunnison Basin population’s sagebrush habitat.  Equally disappointed are members of the environmental community, including the non-profit organization whose litigation prompted the Gunnison listing:  the Service’s “threatened” listing, rather than the proposed “endangered” listing (pdf) paves the way to a special rule under Section 4(d) of the Endangered Species Act (ESA) that would exempt specified activities from the ESA’s Section 9 “take” prohibition.  In a public statement, the Service announced that it plans to publish a special 4(d) rule for public comment that would exempt from the take prohibition a number of ongoing activities, such as ranching and routine agricultural practices.

The 4(d) exemptions may come as cold comfort to Colorado state and local agencies and private landowners who have developed voluntary conservation plans to protect over one-half million acres of Gunnison habitat.  Section 4(d) exemptions do not relieve federal agencies of their Section 7(a)(2) obligations to consult with the Service for any federal agency action (e.g., Natural Resources Conservation Service funding and Bureau of Land Management (BLM) lease agreements) that may affect the species or its designated critical habitat.  However, landowners who have enrolled their property in one of the 40 current or pending Candidate Conservation Agreements with Assurances for Gunnison Sage-grouse will not be required to provide additional conservation measures or additional land, water, or resource restrictions – beyond those voluntarily agreed to – to avoid future take of Gunnison or to protect the species’ habitat on enrolled property.

The Service’s “threatened” listing of Gunnison may be an attempt to split the baby:  depending on how broadly the Service defines the 4(d) exemptions, the State of Colorado, local agencies, and private landowners, on one hand, will see federal regulatory overreach and environmental organizations, on the other hand, are likely to challenge the exemption as swallowing the rule.  As reported in Greenwire (Nov. 12, 2014), threats of litigation from both sides have already emerged.

The Service is trying to head-off predictions about future greater sage-grouse regulation.  In 2010, the Service found listing the range-wide greater sage-grouse under the ESA “warranted, but precluded” and placed the species on the “candidate” list (pdf).  However, in the Gunnison listing Frequently Asked Questions, the Service states, “The decision on Gunnison sage-grouse in no way predetermines a decision on the greater sage-grouse.  . . . Because the [Gunnison’s] range is much smaller, and its smaller populations are more vulnerable to extirpation, the threats to [Gunnison] occur throughout a larger portion of the range and are more imminent.”

Image courtesy of the U.S. Fish and Wildlife Service by Stephen Ting

The California-Nevada greater sage-grouse distinct population segment (Bi-state DPS) is currently proposed for listing as “threatened”; the Service has also proposed a special 4(d) rule and designation of critical habitat for the species.  First proposed on October 28, 2013, the Bi-state DPS listing determination is still under review following two comment-period extensions and one public hearing.  The Service plans to publish its final determination for the Bi-state DPS no later than April 28, 2015. [8/5/14 Fed Red pdf ]

Arizona District Court Finds Sonoran Desert Bald Eagles Are Not a Distinct Population Segment

Posted in Court Decisions, Fish & Wildlife Service, Listing

On November 4, 2014, the U.S. District Court for the District of Arizona issued an opinion in Ctr. for Biological Diversity v. Jewell,2014 U.S. Dist. LEXIS 157436(D. Ariz.Nov. 4, 2014) finding that the Fish and Wildlife Service (FWS) did not abuse its discretion by finding that the Sonoran Desert population of bald eagles is not a distinct population segment. The Bald eagle was originally listed as an endangered species under the precursor to the Endangered Species Act (ESA) in 1967, after FWS found that less than 500 breeding pairs remained in 1963. Under ESA protections, the bald eagle’s numbers flourished, and nearly 10,000 breeding pairs existed in 2007. The bald eagle’s status was changed to threatened in all states in 1995. 60 Fed. Reg. 36,000 (pdf). Due to its remarkable recovery, FWS removed the bald eagle from the threatened list in 2007. 72 Fed. Reg. 37,346 (pdf).

As FWS was considering delisting the bald eagle in 2004, the Center for Biological Diversity (CBD) filed a petition seeking to have the Sonoran Desert population of bald eagles listed as a distinct population segment (DPS). Based on the information in CBD’s 2004 petition, FWS found that there was insufficient information that the Sonoran Desert population was a DPS. CBD challenged the FWS finding under the Administrative Procedures Act as “arbitrary and capricious” and succeeded in having FWS’s decision set aside by the Arizona District Court in 2008. Ctr. for Biological Diversity v. Kempthorne, 2008 U.S. Dist. LEXIS 17517 (D. Ariz. Mar. 6, 2008). The court’s 2008 decision rested largely on the fact that the FWS had been given “marching orders” from Washington D.C. officials to deny CBD’s petition. FWS was ordered to conduct a full status review of the Sonoran Desert population and to determine whether the Sonoran Desert population constitutes a DPS based on the status review.

In 2010, FWS issued its revised finding, again concluding that the Sonoran Desert population does not constitute a DPS. CBD again challenged FWS’s finding and succeeded in having it set aside for failure to follow the notice, comment, and consultation requirements of the ESA. Ctr. for Biological Diversity v. Salazar, 2011 U.S. Dist. LEXIS 138307 (D. Ariz. Nov. 30, 2011). The matter was again remanded to FWS to complete a new finding. FWS issued its finding on May 1, 2012, again concluding that the Sonoran Desert population is not a DPS and finding that the Sonoran Desert population is neither threatened nor endangered. 77 Fed. Reg. 25,792 (May 1, 2012) (pdf). CBD filed suit a third time, claiming that FWS 2012 finding regarding the significance of the Sonoran Desert population was arbitrary and capricious. CBD alleged that FWS’s analysis failed in four respects: (1) failure to follow its own policy for distinguishing DPS; (2) failure to consider all relevant evidence; (3) ignoring available scientific evidence; and (4) failing to consider the impact of climate change on bald eagles generally.

Determinations whether a species constitutes a DPS rest on three factors – the discreteness of the population (e.g. how isolated the population is), the significance of the population (e.g. whether or not a loss of the population would cause a gap in the range of the species), and the conservation status of the species and the population. CBD’s challenge focused on the second factor – significance – based on the fact that the Sonoran Desert population persists in an ecological setting unique for the species. FWS found, and the court agreed, that bald eagles are habitat generalists and occur in a wide range of habitats that are very dry, very wet, very hot, very cold, seaside, and inland. Based on that finding and the evidence supporting it, the court could not determine that the Sonoran Desert population was significant to the species as a whole. The court went on to find that FWS’s failure to include a 2009 memorandum’s statement to the contrary was neither arbitrary nor capricious as it represented only a “diversity of opinion by local or lower-level agency representatives.” Because FWS concluded, based on available scientific and commercial data, that the Sonoran Desert population possessed no unique adaptations or genetic characteristics allowing it to survive in warmer conditions, the court found no need for FWS to address climate change specifically. The court declined to address whether or not the population should have been listed as threatened or endangered, finding that the Sonoran Desert population did not qualify as a DPS and could therefore not be listed under the ESA.

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Critical Habitat

Posted in Critical Habitat

As we reported in October, after significant pressure from Congress, the U.S. Fish and Wildlife Service (Service) announced its intent to re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus occidentals) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming.  Yesterday, the Service announced the re-opening of the public comment period, stating that the public comment period would be open “for an additional 60 days to ensure the public has adequate opportunity to submit comments and to ensure that any final decision reflects all of the best science and information available.”  According to the announcement, the new deadline for submitting public comments is January 12, 2015.  The Service also announced that it will be holding a pubic hearing on the proposal, although the date and location of that hearing has yet to be determined.

Numerous Parties Line Up in Support of Petition in Delta Smelt Case

Posted in Litigation

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme Court.  The petition was filed after a divided panel of the United States Court of Appeals for the Ninth Circuit issued a decision affirming a biological opinion issued by the U.S. Fish and Wildlife Service with respect to continuing operations of the federal Central Valley Project and State Water Project. The panel held that the biological opinion and accompanying reasonable and prudent alternative do not violate the Administrative Procedure Act and Endangered Species Act.  The deadline to file amicus briefs in support of the petition was November 6, 2014.

Six amicus briefs were filed in support of the petition by a wide array of groups including 10 states and national organizations representing business, farmers, home builders, hydropower interests, timber interests, and water users.  The parties to those briefs are as follows:

Responses to the water agency petition are due December 8.

Court Holds Congress Lacks Power to Regulate Take of Intrastate Species that Has No Substantial Effect on Commerce

Posted in Court Decisions, Fish & Wildlife Service, Litigation

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only inhabits the state of Utah.  See People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Serv., Case No. 2:13-cv-00278 (pdf) In 2012, the Service issued a revised special rule pursuant to section 4(d) of the Endangered Species Act (ESA) that authorized take of the species by permit only on “agricultural lands, [private property] within [.5] miles of conservation lands, and areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites.”

A group known as People for the Ethical Treatment of Property Owners (PETPO) sued the Service under the Administrative Procedures Act, alleging that the federal government lacks the authority to regulate a purely intrastate species on non-federal land. The Service argued that the Commerce Clause and the Necessary and Proper Clause of the United States Constitution allow Congress to regulate the prairie dog on non-federal land for three reasons: (1) many of the proposed activities that are prohibited by the special rule such as commercial development are economic in nature; (2) because the prairie dog has biological and commercial value, any take of the species substantially affects interstate commerce; and (3) regulation of take of the prairie dog is essential to the economic scheme of the ESA.

As to the first of the Service’s arguments, the court noted that the question is not whether the special rule substantially affects commercial activity, but whether take of prairie dogs substantially affects interstate commerce. Thus, the Service could not rely on the fact that the rule prohibits property owners from engaging in commercial activities; instead, it needed to show that take of prairie dogs substantially affects interstate commerce.

The court then turned to the Service’s second argument, that because the prairie dog has biological and commercial value, take of the species substantially affects interstate commerce. While the court acknowledged that the species affects the ecosystem by providing food for other species and has some commercial value for scientific research, the court found these connections too attenuated to support a finding that the species substantially affects interstate commerce. Notably, the court stated that “[i]f Congress could use the Commerce Clause to regulate anything that might affect the ecosystem . . . there would be no logical stopping point to congressional power under the Commerce Clause.”

Finally, the court rejected the Service’s third argument, that the special prairie dog rule is essential to the economic scheme of the ESA, because it found that take of the species would not substantially affect the national market for any commodity regulated by the ESA. The court distinguished the special rule for prairie dogs from the Service’s special rule for the take of bald eagles by noting that there is a national market for bald eagle products. Consequently, even purely intrastate take of bald eagles substantially affects the interstate market for the species.

The Service also argued that PETPO lacked standing to challenge the prairie dog special rule because Utah law and the ESA’s general regulations prohibit take of the species, and a court decision striking down the special prairie dog rule would therefore not redress the property owners’ alleged injuries. The court rejected this argument, holding that PETPO had standing because “the presence of an additional barrier to PETPO’s ultimate desired result does not prevent the court from removing an initial barrier.”

NMFS Finds Listing Not Warranted for Queen Conch

Posted in Listing, National Marine Fisheries Service

On November 5, 2014, the National Marine Fisheries Service issued a 12-month finding (pdf) for the queen conch (Strombus gigas), concluding that the species prized for its meat and shell does not warrant listing because it is “not currently in danger of extinction throughout all or a significant portion of its range nor is it likely to become so within the foreseeable future.”  WildEarth Guardians had submitted the 2012 petition requesting that the queen conch be listed, citing overfishing as the primary threat to the species.   In the 12-month finding, however, the Service found that while the “global population likely declined from historical numbers, the species still occurs over a broad geographic range, has dispersal mechanisms that have ensured high degrees of genetic mixing, and its current range is unchanged from its historical range.”

Court Affirms FEMA’s Efforts to Implement Actions to Avoid Jeopardizing Listed Species

Posted in Court Decisions, Litigation, National Marine Fisheries Service

On October 23rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon, and Southern Resident killer whales in National Wildlife Federation v. Federal Emergency Management Agency, 345 F. Supp. 2d 1151 (W.D. Wash. 2004).  In the 2004 decision, the court held that FEMA was required to engage in Endangered Species Act (ESA) consultation with the National Marine Fisheries Service (NMFS).  In 2008, NMFS released a biological opinion finding that the NFIP was likely to jeopardize these endangered and threatened species, and would destroy or adversely modify critical habitat for both species of salmon and the Southern Resident killer whales.  The 2008 biological opinion also provided an RPA, consisting of seven elements.

The basis of this lawsuit was FEMA’s alleged failure to comply with the RPA.  In its 2011 complaint, the National Wildlife Federation claimed that FEMA failed to “ensure against jeopardy” for protected salmon and orcas through its implementation of RPA elements.  After hearing arguments on cross motions for summary judgment, the District Court granted FEMA’s cross-motion for summary judgment and denied the National Wildlife Federation’s motion for summary judgment.

Plaintiffs challenged FEMA’s implementation of the RPA on five separate grounds, alleging that FEMA’s implementation was inadequate to prevent or minimize degradation of channel and floodplain habitat and that FEMA had altogether failed to implement certain RPA elements.  FEMA asserted that it either had complied fully with the RPA or lacked the statutory authority to do so.  Plaintiffs argued that FEMA failed to ensure that each project it permitted under the NFIP complied with the ESA and failed to assess the cumulative impacts of those projects.  Plaintiffs also alleged that FEMA failed to modify its mapping methods, failed to address levee vegetation and construction elements of the RPA, and failed to adequately address floodplain mitigation activities and adaptive management of the program.  The court analyzed each claim separately under the Administrative Procedures Act’s “arbitrary and capricious” standard.

Upholding FEMA’s implementation, the court made a number of findings and ultimately declined to find FEMA’s actions arbitrary and capricious.  The Court found that FEMA was given wide authority and little guidance on how to address project permitting and had adopted proper guidelines for minimum criteria to allow a project-by-project permitting scheme.  This scheme requires that permit applicants demonstrate ESA compliance in order to participate in the NFIP.  The court found that revision requests for NFIP maps did not need to again address ESA compliance when the permit application had done so.  Modification of FEMA’s mapping procedures was found to be outside of FEMA’s authority and subject to the Biggert-Waters Act.  The Biggert-Waters Act created a technical mapping advisory committee specifically to address NFIP mapping reform, removing FEMA’s ability to initiate independent reforms.  As to the remaining claims, the court found that FEMA complied with obligations to advise, assist, and encourage local communities to satisfy ESA requirements, but that FEMA could not implement part of the RPA which dealt with an Army Corps of Engineers program.  On each of these bases, the court upheld FEMA’s implementation as consistent with the RPA.

U.S. Fish and Wildlife Service Proposes to List African Lions as Threatened

Posted in Conservation, Fish & Wildlife Service, Listing

The U.S. Fish and Wildlife Service (Service) recently announced that it is proposing to list the African lion (Pantera leo leo) as threatened under the Endangered Species Act (ESA). The proposed listing is the result of a 2011 petition to list the species as endangered. In the Service’s 12-month finding on that petition, the Service determined that listing the African lion as threatened throughout its range under the ESA is warranted.

The African lion has a large range and its population has ten strongholds totaling approximately 24,000 lions, which is 70 percent of the current population. The species is impacted by a number of factors contributing to population decline. According to the Service, the three main factors are habitat loss, loss of prey-base, and human-lion conflict. In the proposed rule, the Service explains that the expanding human population will continue to contribute to the decline of the African lion population because expanding settlements contribute to habitat loss, human consumption is decreasing the species’ prey-base, and pre-emptive and retaliatory killing of lions are increasing due to increased human-lion interaction.

In addition to the Service’s proposed listing of the African lion as threatened, the Service is also proposing a rule under section 4(d) of the ESA that will establish a permitting mechanism for the importation of sport-hunted lion trophies. Importation would be allowed provided the lions originate from countries with a scientifically sound management plan for African lions. The Service is not allowing hunting of the species through its proposed rule because the African lion’s native countries are not subject to the jurisdiction of the ESA. These countries allow sport hunters to participate in African lion hunts regardless of U.S. import regulation. Rather, the Service intends that, by requiring import permits, it can ensure that imported African lion trophies enhance the conservation of the species in the range countries by supporting well-managed, scientifically based conservation programs that include trophy hunting of lions. The Service has found that sport-hunting of African lions is not a threat to the species at this time.


U.S. Fish and Wildlife Service Lists One Midwestern Butterfly as Threatened, Another as Endangered

Posted in Uncategorized

On October 24, the U.S. Fish and Wildlife Service (Service) published a final rule listing the Dakota skipper (Hesperia dacotae) as a threatened species and the Poweshiek skipperling (Oarisma poweshiek) as an endangered species under the Endangered Species Act.  The Dakota skipper is found in Minnesota, North Dakota, South Dakota, Manitoba and Sasketchewan, and that the Poweshiek skipperling is found in Michigan, Minnesota, Wisconsin, and Manitoba.  The Service determined that the Dakota skipper is likely to become endangered throughout all of its range within the foreseeable future and that the Poweshiek skipperling is presently in danger of extinction throughout its entire range.  According to the final rule, habitat loss and degradation of native prairies from agricultural conversation and other development, the indiscriminate use of pesticides, and the inadequacy of existing regulatory measures are among the primary threats affecting these species.

The final rule becomes effective November 24, 2014.  The full text of the rule is available here.