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Endangered Species Law and Policy

Northern Spotted Owl Listed As a Threatened Species Under the California Endangered Species Act

Posted in Listing

On August 25, 2016, the California Fish and Game Commission (Commission) voted unanimously to list the northern spotted owl (Strix occidentalis caurina) as a threatened species under the California Endangered Species Act.  The owl is already listed as a threatened species under the Federal Endangered Species Act.  The Commission’s action increased protections for the species by allowing for state and citizen enforcement actions through the California Department of Fish and Wildlife and the state courts.

In California, the northern spotted owl’s range extends south along the coast from the Oregon border to Marin County, and across the Klamath Mountains to the Cascade Range near the Pit River.  According to the species status review prepared by the California Department of Fish and Wildlife, the primary threats to the continued existence of the northern spotted owl are the rapid expansion of the barred owl into the range of the spotted owl and a rapid and accelerating decline in northern spotted owl population size and habitat from wildfire and timber harvest.  Additional threats include potential increases in the frequency and severity of wildfires, widespread occurrence of marijuana cultivation on public and private lands, changes in weather patterns, effects of climate change on wildfire patterns and forest vegetation distribution, and the spread of the non-native fungus-like pathogens.

The Environmental Protection Information Center filed its petition to list the owl as threatened or endangered in September 2012.  The documentation provided to the Commission in advance of the hearing and a video of the proceeding may be accessed here.

District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

Posted in Court Decisions, National Marine Fisheries Service

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding that because the federal approvals triggering the biological opinions were issued by the Federal Energy Regulatory Commission (FERC), the lawsuit had to be filed in the U.S. Court of Appeals in the first instance, not the district court.  Maine Council of the Atlantic Salmon Fed’n v. NMFS, Case No. 2:15-cv-00261 (D. Maine Aug. 18, 2016).

Not surprisingly, the docket for most U.S. Court of Appeals is primarily comprised of appeals from district court decisions.  However, as a result of federal legislation, there are some actions that skip the district court and head directly to the U.S. Court of Appeals.  The Federal Power Act, which, among other things, authorizes FERC to issue licenses for hydroelectric projects, includes a provision vesting review of FERC decisions in the U.S. Court of Appeals.

Pursuant to the consultation requirement in section 7 of the ESA, FERC consulted with NMFS prior to amending the licenses for four hydroelectric projects in Maine.  The projects were all located on the Kennebec River, which is home to the federally endangered Gulf of Maine Distinct Population Segment of Atlantic salmon.  As a result of the consultation, NMFS issued two biological opinions.  Shortly thereafter, four environmental groups filed a lawsuit in district court challenging the biological opinions and NMFS’ findings under the ESA and the Administrative Procedure Act.

The defendants moved to dismiss the lawsuit arguing, among other things, that the district court lacked jurisdiction over the dispute because under the Federal Power Act the lawsuit had to be filed in the U.S. Court of Appeals.  In opposition to the motion, plaintiffs asserted that they were challenging NMFS’ failure to comply with the ESA and Administrative Procedure Act, and not FERC’s ultimate decision.  The district court rejected this argument, finding parallels in a number of other decisions that concluded the Federal Power Act established exclusive jurisdiction in the U.S. Court of Appeals even if the challenge was based on a failure to comply with another federal statute.  Accordingly, the district court concluded that it lacked subject matter jurisdiction and dismissed the action.

Ninth Circuit Court of Appeals Affirms Incidental Take Statements Not Required for Plant Species

Posted in Court Decisions, Fish & Wildlife Service, Legal, Litigation

On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service (“USFWS”) on the issue of whether an incidental take statement is required for plant species.  In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (“CBD”) challenged BLM’s adoption of a Recreational Area Management Plan (“Plan”) for off-road vehicles in the Imperial Sand Dunes Special Recreation Management Area (the “Dunes”) in Imperial County, California.  CBD argued, among other things, that USFWS violated the Endangered Species Act (“ESA”) by failing to include protected plant species in the incidental take statement issued for the Plan.  The Dunes is home to the Pierson’s milkvetch (Astragalus magdalenae var. peirsonii), a purple-flowered plant, and the desert tortoise (Gopherus agassizii), both of which are listed as threatened under the ESA.  After formal consultation under section 7 of the ESA, USFWS issued a biological opinion finding that the Plan was not likely to jeopardize the continued existence of milkvetch or desert tortoise.  USFWS’ biological opinion included an incidental take statement for desert tortoise, but not for Pierson’s milkvetch.

The district court held that USFWS is not required to include plant species in incidental take statements, because the ESA does not prohibit incidental “take” of plant species.  CBD appealed this ruling, and the Ninth Circuit affirmed the district court’s analysis, finding that the ESA is clear that the definition of “take” does not apply to plant species and therefore an incidental take statement is not required.

CBD also challenged the district court’s grant of summary judgment to BLM on the sufficiency of BLM’s air quality analysis under the National Environmental Policy Act, Clean Air Act, and Administrative Procedure Act.  The Ninth Circuit also affirmed the district court’s ruling that BLM’s analysis complied with all applicable laws, and that a difference of opinion over the methodology is insufficient to defeat an agency’s analysis.

U.S. Fish and Wildlife Service Delists Three Fox Species and Reclassifies One Other

Posted in Delisting, Fish & Wildlife Service

The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) removing the San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), and Santa Cruz Island fox (U. l. santacruzae) from the Federal List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA).  The Service also reclassified the Santa Catalina Island fox (U. l. catalinae) from an endangered species to a threatened species.

The island fox is a relative of the gray fox.  They inhabit the six largest of the eight California Channel Islands and are recognized as distinct subspecies on each of the six islands.  The Service originally listed the four subspecies of island fox as endangered in 2004 due primarily to habitat modification by nonnative grazing animals and nonnative plant invasion.  However, eradication programs on all islands have greatly reduced the number of nonnative herbivores on the islands and, therefore, the magnitude of impacts to the habitat of the island foxes.  While nonnative plant species continue to impact the subspecies’ habitat, the Service has concluded that the threats to the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox have been eliminated or reduced to the point that each of the subspecies no longer meets the definition of an endangered or threatened species under the ESA.  The threats to the Santa Catalina Island fox have been reduced to the point that the subspecies can be reclassified as a threatened species.

In addition to the final rule, the Service announced the availability of a final post-delisting monitoring plan for the three species removed from the threatened or endangered species list.

Texas Hornshell Mussel Proposed for Listing Under Endangered Species Act

Posted in Fish & Wildlife Service, Listing

Texas hornshell

On August 10, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule to list the Texas hornshell (Popenaias popeii), a freshwater mussel, as an endangered species under the Endangered Species Act (ESA).  The species has been on the candidate species list for over a decade, and the proposed rule meets a listing determination deadline established by a 2011 multidistrict settlement agreement.  In the proposed rule, USFWS determined that the species is in danger of extinction due to habitat loss from loss of water flow, decreased water quality, increased accumulation of fine sediments, and predation, and therefore that listing is warranted.  Texas hornshell spawning occurs from March through August, and USFWS cited flowing water needs, water quality sensitivity, drought, climate change, sedimentation, groundwater and surface water withdrawals, and reservoir impoundment impacts on the Texas hornshell in its discussion of the species’ needs and threats.  The Texas hornshell is one of a number of Texas freshwater mussel species that face similar threats and remain on the candidate list or are pending status review.

Historically, the Texas hornshell ranged throughout the Rio Grande drainage in New Mexico and Texas in addition to multiple river drainages in Mexico. The species’ current range includes five known populations in the Black River (Eddy County, New Mexico), Pecos River (Val Verde County, Texas), Devils River (Val Verde County, Texas), Lower Canyons of the Rio Grande (Brewster and Terrell Counties, Texas), and Lower Rio Grande near Laredo (Webb County, Texas).  While USFWS declined to include a critical habitat designation in the proposed rule, USFWS is seeking information that would inform a future designation as well as other specific information that is currently lacking for the species.  Further, the listing proposal recognizes management actions currently underway—including reintroduction into the Delaware River in New Mexico by the New Mexico Department of Game and Fish and management of 200,000 acres of conservation lands in Devils River watershed in Texas by the Texas Parks and Wildlife Department and The Nature Conservancy—and seeks participants for additional recovery efforts in the event of final listing.

In accordance with USFWS policy, the proposed listing identifies certain activities that are unlikely to result in a prohibited “take” of Texas hornshell, including: (1) normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and (2) normal residential landscape activities. USFWS further provided a non-comprehensive list of some activities that may result in a “take” violation, including: (1) unauthorized handling or collecting of the species; (2) modification of the channel or water flow of any stream in which the Texas hornshell is known to occur; (3) livestock grazing that results in direct or indirect destruction of stream habitat; and (4) discharge of chemicals or fill material into any waters in which the Texas hornshell is known to occur.

Photo credit: Joel Lusk, USFWS

August 4th Endangered Species Act Rulemakings

Posted in Uncategorized

On August 4, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule confirming its 2011 revision to the designation of critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The Service listed the marbled murrelet as threatened under the Endangered Species Act in 1992.  In 1996, the Service designated 3,887,800 acres across Washington, Oregon, and California as critical habitat.  In 2003, the Service entered into a settlement agreement with the American Forest Resource Council (AFRC) and Western Council of Industrial Workers, and agreed to review the marbled murrelet’s critical habitat designation and make appropriate revisions after reconsideration of the economic and other relevant impacts of the designation.  In 2011, the Service revised its original designation by issuing a final rule removing 189,671 acres in California and Oregon that had been included in the 1996 designation, resulting in a total of approximately 3,698,100 acres of designated critical habitat for the murrelet.  In 2012, AFRC filed a lawsuit against the Service after the Service denied a petition to delist the species.  The lawsuit also asked that the court vacate the final rule designating critical habitat.  The court upheld the Service’s decision to deny the delisting petition, but the Service voluntarily agreed to reconsider the critical habitat designation in light of then-recent case law.  The Service’s August 4, 2016 determination confirms the 2011 designation of critical habitat without any changes.

Also on August 4, 2016, the Service issued a final rule amending the format of the Lists of Endangered and Threatened Wildlife and Plants (Lists).  The Service‘s stated intent for amending the Lists is to reflect current practices and standards that will make the Lists easier to understand.   The changes to the Lists rename and reorganize the Lists’ columns and correct typos and other inconsistencies.

ESA Round-Up – Summer 2016

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

In the past few weeks, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) published several Endangered Species Act (ESA) listing decisions, including the following:

  • On August 1, 2016, NMFS published a 12-month finding on a petition to list the porbeagle shark (Lamna nasus) under the ESA. According to NMFS, the species does not warrant listing at this time. NMFS reviewed two distinct population segments of porbeagle sharks, the North Atlantic and Southern Hemisphere, and acknowledged that the populations have declined due to overfishing. However, NMFS concluded that listing was not warranted because, based on the best scientific and commercial information available, it appears the species’ decline has halted and the populations are currently increasing.
  • On August 1, 2016, NMFS issued a final rule listing three foreign marine angelshark species as endangered under the ESA. The three species—the sawback angelshark (Squatina aculeata), smoothback angelshark (Squatina oculata), and common angelshark (Squatina squatina)—occur primarily in the Mediterranean Sea and eastern Atlantic. NMFS did not designate critical habitat because the geographic areas occupied by the species are entirely outside U.S. jurisdiction.
  • On July 20, 2016, FWS published a final rule removing the lesser prairie-chicken (Tympanuchus pallidicinctus) from the list of threatened and endangered species. The final rule also removed the rule issued under section 4(d) of the ESA for the species. The final rule is in response to a decision by the U.S. District Court for the Western District of Texas vacating the prior listing decision.
  • On July 6, 2016, FWS published a 12-month finding on a petition to list the Eagle Lake rainbow trout (Oncorhynchus mykiss aquilarum) and the Ichetucknee siltsnail (Floridobia mica) under the ESA. Based on the best scientific and commercial information available, FWS concluded that listing the species is not warranted at this time. According to FWS, a fishway providing fish passage and other conservation efforts have improved conditions for the trout. Likewise, FWS found that fencing the siltsnail’s habitat has resulted in a population that is “the largest it has even been.”

USFWS Publishes Final Methodology for Prioritizing Listing Petition Status Reviews

Posted in Delisting, Fish & Wildlife Service, Listing

On July 27, 2016, the U.S. Fish and Wildlife Service (“USFWS”) published a Federal Register notice of its final Methodology for Prioritizing Status Reviews and Accompanying 12-Month Findings on Petitions for Listing Species under the Endangered Species Act (“Methodology”).  The final Methodology clarifies several of the terms and processes identified in the draft Methodology.

The Methodology establishes five prioritization categories, or “bins,” to inform a multi-year National Listing Workplan that will cover proposed and final listing determinations, as well as proposed and final critical habitat designations.  Under the Methodology, USFWS will give the highest priority to species experiencing severe threat levels across a majority of their range, which result in severe population-level impacts.  However, where efforts to conserve species are organized, underway, and likely to address the threats to the species, USFWS will consider these actions as the fourth highest priority.  Actions on species for which there is limited information will be given the lowest priority.  The Methodology outlines exceptional circumstances that may warrant a change in the agency’s general order of reviewing listing petitions.

Under the Endangered Species Act (“ESA”), any member of the public may petition USFWS to list, delist, or reclassify a species as an endangered or threatened species.  USFWS is required to, within 90 days of receiving a petition, make a preliminary determination regarding whether the petition presents substantial information that action may be warranted.  If it does, USFWS must thereafter determine whether the action is warranted, not warranted, or warranted but precluded, within 12 months after receiving the petition.  Due to limited resources and a substantial number of listing petitions filed since 2010, USFWS has been unable to meet the statutory deadlines and has, repeatedly, been dragged into court as a result.  The Methodology is an attempt to document USFWS’s reasoned and systematic approach to carrying out its mission and statutory duties.  USFWS states that the purpose of the Methodology is to increase the transparency of the agency’s decisionmaking for the benefit of all stakeholders.

According to the Federal Register notice, the Methodology is effective immediately.

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.