Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY).  The ESA Working Group will include a total of 13 republican members from a broad geographic range.  It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat.  Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”

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The State of Idaho enacted a law (pdf) this spring asserting that the State has “primacy over the management of fish and wildlife.” The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that “introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho.” The law plainly is intended to provide State officials with an additional tool as it negotiates with federal officials regarding threatened and endangered species. As one reporter who covered the enactment of the law explained,

“In theory, the bill gives the state final say on whether or how endangered or threatened plants and animals are introduced in the state. Reality could be different, though…”

(Capitol Press, May 13, 2013 by Sean Ellis.) The Supremacy Clause, Article VI, clause 2, of the U.S. Constitution, establishes that federal law is supreme provided it is consistent with the Constitution. Together with the federal Endangered Species Act, the Supremacy Clause likely limits the effect of this Idaho law.

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The Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As part of this process, the EPA must ensure that the use of the pesticide will not cause any unreasonable adverse effects on the environment, including species protected under the Endangered Species Act (ESA) and designated critical habitat for such species. Often, in order to comply with the ESA, the EPA must consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine whether a pesticide is likely to have an adverse effect on a listed species or its critical habitat. This consultation process has been complicated by the fact that the EPA, FWS, and NMFS have developed their own approaches to evaluating environmental risks.

As a result, the EPA, FWS, NMFS, and the United States Department of Agriculture asked the National Research Council (NRC) to recommend a unified approach to evaluating the environmental risks to listed species posed by pesticides. The NRC is an arm of the National Academies, and is an independent organization whose mission is to inform governmental decisionmaking and public policy in matters involving science, engineering, technology, and health. The NRC recently released a pre-publication copy of its report, entitled Assessing Risks to Endangered and Threatened Species from Pesticides (pdf).

The report concludes that the ecological risk assessment (ERA) process is the preferred approach for evaluating the risks posed by pesticides to listed species. As applied in the ESA context, NRC envisions this process involving three steps: determining (1) whether a pesticide may affect a listed species, (2) whether the affect is likely to be adverse to the listed species or its critical habitat, and (3) whether it is likely to jeopardize the continued existence of a listed species. As part of each step, NRC recommends that the agencies engage in a process of formulating the problem, analyzing the risks of pesticide exposure and the effects thereof, and characterizing these risks.

The report also addresses a number of other issues, including recommendations for identifying appropriate data to be used in assessments, developing more accurate models, and incorporating uncertainty into the assessments.
 

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On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits grasslands and prairie habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. As previously reported, the Service proposed listing the species as threatened under the ESA in December. The Service reopened the comment period for this proposed rule for an additional 45 days.

The special rule would only be implemented if the lesser prairie-chicken receives ESA protections. According to the Service, the special rule is proposed “in recognition of the significant conservation planning efforts occurring throughout the range of the lesser prairie-chicken for the purpose of reducing or eliminating threats affecting the species.”

The Service also announced the availability of a draft conservation plan that was developed by the Lesser Prairie-Chicken Working Group, which is comprised of states, landowners, and energy developers who have partnered to prevent the bird from becoming listed. The proposed special rule discusses the draft plan, explaining: “For the Service to approve coverage of a comprehensive conservation program under this 4(d) special rule, the program must provide a net conservation benefit to the lesser prairie-chicken population.”

Comments on the proposed special rule, the proposed listing, and the draft conservation plan (as such comments relate to the Service’s listing determination) are due June 20, 2013.
 

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In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat.  In dismissing the case, the court held that it lacked subject matter jurisdiction over the matter because plaintiffs’ notice of intent to file the action failed to comply with the ESA’s notice requirements.  Noting that the purpose of the ESA’s 60-day notice requirement is to alert the government of alleged violations so that they may be resolved without litigation, the court held that plaintiffs’ notice failed to fulfill that purpose.  Specifically, the court held that plaintiffs did not sufficiently inform USFS of the specific alleged violations that they later asserted in their complaint.  Plaintiffs’ failure to strictly comply with the notice requirement was an absolute bar to their subsequent action.  The court’s holding emphasizes the importance of strict compliance with the 60-day notice requirement prior to challenging alleged violations of the ESA.

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On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation, predation, disease, climate change, and other factors impacting the species’ vitality. The Service also determined that Yosemite toad populations are likely to decrease due to habitat degradation and anticipated effects of climate change.

In addition to the proposed listing, the Service also published a proposed rule (pdf) to designate critical habitat for the three species. Specifically, the Service proposed designating over 1.1 million acres of critical habitat for the Sierra Nevada yellow-legged frog, over 200,000 acres for the northern DPS of the mountain yellow-legged frog, and over 750,000 acres for the Yosemite toad. The critical habitat designations include acreage in seventeen counties across California, ranging from Tulare County in the south to Butte County in the north.

Comments regarding either proposed rule must be submitted by June 10, 2013.

 

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The southwestern United States faces a host of challenges as a result of climate change including strained water resources, greater prevalence of tree-killing pests, and potentially significant alterations of agricultural infrastructure. A hotter future is projected for the Southwest—a region stretching from the California coast to the plains of eastern Colorado and New Mexico—and future heat and changes in precipitation will present challenges for managing natural resources, water, infrastructure, and threats to human health. Climate change is already complicating efforts to conserve threatened and endangered species.

Assessment of Climate Change in the Southwest United States, published by Island Press and available for order here, is a landmark study that addresses these issues. It focuses on current climate conditions in the region, the environment of the past, what is projected to change over the 21st century and how this will impact ecosystems, water resources, agricultural production, energy supply and delivery, transportation and human health. I contributed to the preparation of the assessment and co-authored chapter 18, which focuses on climate choices for a sustainable Southwest.

A consortium of researchers from the Southwest Climate Alliance coordinated the assessment; these scientists are affiliated with the National Oceanic and Atmospheric Administration’s Regional Integrated Sciences and Assessment Program and the U.S. Department of the Interior Southwest Climate Science Center. The book blends the contributions of 120 experts in climate science, economics, ecology, engineering, geography, hydrology, law, planning, resource management and other disciplines. This book is one of ten regional technical inputs to the 2013 National Climate Assessment released in draft form earlier this year.

I am pleased to offer our readers a 25% discount when ordering the book through Island Press. Just use discount code 5NCA to get the discount off of this book or any other National Climate Assessment regional technical inputs.

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In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts constituting agency action for purposes of triggering section 7 consultation for each of the 382 pesticides. The court rejected plaintiff’s argument that the EPA’s ongoing discretionary control and authority over the pesticides constituted agency action. To establish that there was a duty to consult, plaintiffs would need to allege specific facts identifying affirmative actions taken by the EPA with regard to each of the challenged pesticides.

The court also held that plaintiffs failed to allege sufficient facts to establish that they had standing to bring the case. As plaintiffs were required to allege specific facts with regard to each individual pesticide in order to invoke the section 7 consultation requirement, the court held that plaintiffs were likewise required to allege facts to establish standing for each individual pesticide. The court reasoned that standing to challenge one pesticide did not establish standing with regard to another pesticide.

In addition, the court held that plaintiffs did not plead sufficient facts to establish that the district court had subject matter jurisdiction over the claims. To the extent that plaintiffs’ “core objections” were to EPA’s pesticide registrations, the suit was governed by the administrative framework of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), not the citizen suit provision of the ESA. The court opined that whether it had subject matter jurisdiction under FIFRA, or whether the claims fell outside the ambit of FIFRA, must be established by plaintiffs with respect to each particular pesticide challenged.
 

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On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land spanning from San Francisco to the Canadian border.  The plan is intended to protect the long-term ecological health of the forests (including ecologically critical species) while also allowing for sustainable timber production.  In order to assess the impact of logging activities, survey and management standards were adopted as part of the Northwest Forest Plan.

In 2007, federal agencies issued final environmental documents supporting the elimination of the survey and management standards.  Environmental plaintiffs subsequently sued the federal agencies alleging violations of the National Environmental Policy Act, Endangered Species Act, National Forest Management Act, and Federal Land Policy Management Act.  After the district court held that the federal agencies violated the National Environmental Policy Act, the parties began negotiating the terms of a settlement agreement. 

Eventually, all of the parties, except for a single intervenor-defendant, agreed on terms and moved for entry of a consent decree.  Instead of eliminating the survey and management standards, the settlement agreement proposed to modify the standards.  The intervenor-defendant objected to entry of the consent decree on the basis that all modifications to the survey and management standards were statutorily required to go through a public-participation procedure, and entry of the settlement agreement would bypass that process.  The district court, rejected this argument and entered the consent decree.

On appeal, however, the Ninth Circuit found the intervenor-defendant's argument persuasive, and reversed the decision of the district court, holding that the district court abused its discretion when it entered the consent decree. 

Consent decrees are a common means of settling environmental litigation.  They are also, however, a potential means for abuse.  In fact, as noted in recent headlines, some members of Congress have proposed to modify the consent decree process in an effort to avoid the potential for abuse.  (See our blog post "ESA Legislation Proposed to Prohibit Certain Settlements and Awards.")  With all of this bad press, one wonders whether the courts are also starting to distrust consent decrees.  (See our blog post "Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet.")  Only time will tell. 

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