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Endangered Species Law and Policy

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.

U.S. Fish and Wildlife Service Re-Opens Comment Period for Cuckoo Under Pressure from Congress

Posted in Critical Habitat, Fish & Wildlife Service

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will 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 occidentalis) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah and Wyoming.  The announcement came after 17 members of Congress requested that the Service provide additional time for the public to review the proposed critical habitat designation, and two members of Congress publicly criticized the Service’s analysis of the economic impacts related to the proposed designation.  (For a further discussion of these events, see the following story by Amy Joi O’Donoghu in the Deseret News.)  According to yesterday’s announcement, the Service anticipates providing further information related to the extended comment period “in the coming days.”

Two Petitions Filed Seeking Supreme Court Review of Ninth Circuit Decision in Delta Smelt Case

Posted in Litigation

Recently, two separate petitions were filed with the U.S. Supreme Court seeking review of the Ninth Circuit’s decision in San Luis and Delta Mendota Water Authority v. Jewell, a case involving a challenge to the biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service regarding continuing operations of the Central Valley Project and State Water Project in California. The two projects provide water to over 20 million Californians.

One petition (pdf) was filed on behalf of Stewart & Jasper Orchards, Arroyo Farms, and King Pistachio Grove. The second petition (pdf) was filed on behalf of the State Water Contractors, Metropolitan Water District of Southern California, Coalition for a Sustainable Delta, Kern County Water Agency, San Luis & Delta Mendota Water Authority, and Westlands Water District.

The Ninth Circuit issued a split decision (pdf) in the case, with the panel majority reversing the lower court’s ruling invalidating the biological opinion on numerous grounds.

U.S. Fish and Wildlife Service Proposes to List 23 Mariana Island Species as Threatened or Endangered

Posted in Conservation, Fish & Wildlife Service, Listing

The U.S. Fish and Wildlife Service (Service) has published (pdf) a proposed rule to list 21 species as endangered and 2 species as threatened under the Endangered Species Act (ESA). Of the 21 species the Service proposes to list as endangered, twelve are plant species and nine are animal species. The two proposed threatened species are animal species.

All 23 species are found in the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands. According to the proposed rule, the species are experiencing population level impacts as a result of habitat loss and degradation, predation or herbivory by nonnative species, inadequate existing regulatory mechanisms to prevent the introduction of nonnative plants and animals, ordinance and live-fire from military training, recreational vehicles, and vulnerability to extinction due to small numbers of individuals and populations.

Seven of the species proposed for listing as endangered species were previously listed as candidate species. In addition to these seven species, the Service has determined that 16 species warrant listing under the ESA and, because they occur within the same two ecosystems as the seven candidate species and share common threats with them, the Service included them in the proposed rule to provide them with protection under the ESA in an expeditious manner.

The Service intends to publish a proposal to address critical habitat for the 23 Mariana Islands species under the ESA in the near future.

Service Proposes to List Fisher DPS As Threatened

Posted in Listing

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release (pdf) announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under the Federal Endangered Species Act (ESA), in part due to significant threats from illegal marijuana farming. 

The fisher belongs to a family of mammals that includes weasels and otters, and grows to about the size of a large house cat.  The Federal Register notice (pdf) regarding the proposed listing, which was published yesterday, states that the West Coast DPS of fisher satisfy the definition of a "threatened" species under the ESA because it is "likely to become endangered throughout all of its range" within 40 years.  The notice also states that the main threats to the West Coast DPS are "habitat loss from wildfire and vegetation management, as well as toxicants, and the cumulative impact and synergistic effects of these and other stressors in small populations."  With respect to threats from toxicants, the news release identifies the use of rodenticides by illegal marijuana cultivation sites as a signficiant threat to the species.  

The West Coast DPS of fisher is located in California, Oregon, and Washington.  The Service has currently scheduled one public hearing in Redding, California, and seven public informational meetings to discuss the proposed listing.  Further, according to the notice, the Service will be accepting public comments on the proposed listing through January 5, 2015.

U.S. Fish and Wildlife Service Lists Western Yellow-Billed Cuckoo as Threatened

Posted in Listing

Last Friday, the U.S. Fish and Wildlife Service (Service) published its final rule listing the western yellow-billed cuckoo (Coccyzus americanus) as threatened under the Endangered Species Act (ESA). The species is an insect-eating bird found in riparian woodland habitat. The final rule lists loss of riparian habitat as the primary threat to the species and notes that conversion to agriculture, dam construction, river flow management, and overgrazing have all contributed to loss of the species’ habitat over the last several decades. The species has been listed in twelve western states throughout which it breeds – Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, Wyoming, Montana, Oregon, and Washington.

The Service has proposed to designate 546,335 acres of critical habitat for the species throughout nine western states – Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming. Comments on the proposed critical habitat rule are due on October 14.

Federal Court Agrees: Voluntary Conservation Agreements Sufficient to Keep Lizard Off the Endangered Species List

Posted in Listing

On September 30, 2014, the U.S. District Court for the District of Columbia upheld (PDF) the U.S. Fish and Wildlife Service’s (Service) decision to withdraw (PDF) its proposal to list the dunes sagebrush lizard as an endangered species.  The Service found that threats to the lizard and its habitat have been reduced such that the species no longer meets the statutory definition of an endangered (or threatened) species.  

The dunes sagebrush lizard’s (Sceloporus arenicolus) range spans approximately 745,000 acres across southeastern New Mexico and western Texas in shinnery oak dune habitat.  The lizard’s habitat also lies within the Permian Basin, one of the most significant sources of oil and gas in the United States.  The Service’s 2010 proposal (PDF) to list the lizard as endangered identified increasing pressure on the species’ specialized habitat from conventional and renewable energy development.

The Service’s determination that the lizard and its habitat are protected to a level that the lizard is no longer in danger of extinction now or in the foreseeable future was based on existing and future anticipated conservation measures.  The Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (PDF) allows the Service to consider conservation efforts that have not yet been implemented, so long as the Service evaluates, “the certainty that the conservation effort[s] will be implemented . . . [and] the certainty that the conservation effort[s] will be effective.”  

In this case, the Service found that existing large blocks of protected habitat and the Bureau of Land Management’s (BLM) continued enforcement of species-specific measures protecting the lizard and its habitat under its Resource Management Plan Amendment (RMPA) combined with implementation of two voluntary conservation agreements to protect and restore the lizard’s habitat (one, implemented since 2008; the other, executed less than six months before withdrawal of the proposed listing) would be effective and would continue to eliminate threats to the lizard.  The court held that the Service’s conclusion complied with the PECE and dismissed plaintiff organization’s other claims that the Service’s listing withdrawal violated the Endangered Species Act (ESA) and Administrative Procedure Act.  
In other listing news, on October 1, 2014, the Service published a “not warranted” (PDF) finding on a petition to list the Rio Grande cutthroat trout (Oncorhynchus clarki viginalis).  The Service will remove the cutthroat trout from the candidate list, ending – for now – an over 6-year saga that included not less than four Service listing findings and two lawsuits.  According to the Service, this October 1, 2014 12-month finding fulfills the requirements of the settlement agreement for the currently active lawsuit.  
Finally, on September 29, 2014, Wildearth Guardians submitted a petition to list as threatened or endangered under the ESA the Rio Grande sucker (Catostomus plebeius) throughout its range in the Rio Grande and its tributaries in southern Colorado, New Mexico, and several states in Mexico.  Under Section 4(b)(3)(A) of the ESA, 16 U.S.C. § 1533 (b)(3)(A), the Service should, to the maximum extent practicable, publish a finding within 90 days of receiving the petition whether the petitioned action “may be warranted.” 

U.S. Fish and Wildlife Service Declines to List Two Buckwheat Plants

Posted in Listing

The U.S. Fish and Wildlife Service (Service) has declined to list two Nevada plants under the Endangered Species Act (ESA). On Wednesday, the Service published its 12-month findings on a petition to list the Churchill Narrows buckwheat (Eriogonum diatomaceum) and the Las Vegas buckwheat (Eriogonum corymbosum var. nilesii).

Section 4(a)(1) of the ESA lists five factors that the Service must examine when deciding whether to list a species as threatened or endangered: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence. Examining these factors for the Churchill Narrows buckwheat, the Service looked at the effects of mineral exploration and development, livestock grazing, herbivory, off-highway vehicle activity and road development, invasive plant species, disease, and climate change on the species. The Service found that the “best scientific and commercial information does not indicate that these stressors are causing a decline in the species or its habitat, either now or into the future.” Regarding the Las Vegas buckwheat, the Service found that commercial and other development, off-highway vehicle use and road development, mineral exploration and development, invasive plant species, modified wildfire regime, and climate change “may have impacts on individuals in some locations, but they are not impacting the plants currently or into the future such that listing would be warranted.”

The Churchill Narrows buckwheat and Las Vegas buckwheat have been candidates for ESA listing since 2004 and 2007, respectively. The decision not to lists the species was made as part of a 2011 settlement agreement between the Service and the Center for Biological Diversity, in which the Service agreed to speed up its listing decision process for over 700 species found throughout the United States.