U.S. Fish and Wildlife Service to Delist Yellowstone Grizzly Bear

On June 22, 2017, U.S. Secretary of the Interior Ryan Zinke announced that the U.S. Fish and Wildlife Service (Service) will delist the Yellowstone population of the grizzly bear (Ursus arctos horribilis).  According to the Service, the Greater Yellowstone Ecosystem Distinct Population Segment (Yellowstone DPS) of the grizzly bear has recovered to the point that federal protections are no longer necessary and overall management of the species can be returned to the states and tribes.

The Yellowstone DPS consists of grizzlies in portions of northwestern Wyoming, southwestern Montana and eastern Idaho.  The Service estimates that the population has rebounded from as few as 136 bears in 1975 to approximately 700 today. The Yellowstone DPS now occupies more than 22,500 square miles, more than double its range from the mid-1970s.  The Service determined that delisting was warranted based on several factors, including the number and distribution of bears throughout the ecosystem, the quantity and quality of the habitat available, and the states’ commitments to manage the population in a manner that maintains its healthy and secure status.

Grizzly bear populations outside of the Yellowstone DPS, in the lower 48 states, will continue to received protection under the Endangered Species Act.  The Service’s final rule will be published in the Federal Register in coming days and will take effect 30 days after publication.

U.S. Fish & Wildlife Service Reopens Comment Period for Five Proposed Rules

Earlier this week, the U.S. Fish & Wildlife Service (Service) issued a notice in the Federal Register that it was reopening the comment period on five proposed rules for four plant species.  Specifically, the proposed rules include the following: (1) listing Guadalupe fescue (Festuca ligulata) as an endangered species; (2) designating Guadalupe fescue critical habitat; (3) reclassifying Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii) from endangered to threatened; (4) reclassifying Kuenzler hedgehog cactus (Echinocereus fendleri var. kuenzleri) from endangered to threatened; and (5) removing gypsum wild-buckwheat (Eriogonum gypsophilum) from the list of endangered and threatened plants.  According to the notice issued by the Service, the comment period is being reopened for 30 days “to give all interested parties further opportunity to comment on the proposed rules.”  The reopened comment period will end on July 13, 2017.

Secretary Zinke Orders Review of Sage-grouse Management Plans

On June 8th, 2017, Department of Interior (DOI) Secretary Ryan Zinke signed Secretarial Order 3353, entitled “Greater Sage-Grouse Conservation and Cooperation with Western States.”  This Order initiates the assessment of both federal and state-led conservation efforts related to the greater sage-grouse and establishes a review panel to undertake the evaluation. The review panel will then recommend (potentially significant) changes to how the bird is managed. The stated purposes of the Order are to 1) enhance cooperation between DOI and the eleven western states comprising the historic range of the greater sage-grouse, 2) to support a federal/state partnership with clearly defined roles and objectives for the management and conservation of the species, and 3) establish a team of federal land managers (e.g. U.S. Fish & Wildlife Service (FWS), Bureau of Land Management (BLM) and U.S. Geological Survey (USGS)) who will review the federal agencies’ prior sage-grouse management plans completed on or before September 2015. Those 2015 finalized plans, which in total cover the habitat management of nearly half the species’ range, included amendments and revisions to 98 BLM and U.S. Forest Service (USFS) land-use plans and were designed to conserve and protect sage-grouse habitat, in order to demonstrate that enough conservation was occurring on the landscape for FWS to avoid listing the bird as threatened or endangered under the Endangered Species Act (ESA).  The Order directs the review team to complete its evaluation within 60 days and then provide the Secretary with a summary and recommendations for any action the department should take.  According to the DOI press release accompanying the Order, the effort is intended to “explore[] possible plan modifications,” “consider local economic growth and job creation,” and evaluate whether the federal and state plans and programs are “complementary.”  It would appear therefore that this is a follow-on to Secretarial Order 3349, entitled “American Energy Independence,” which in turn implemented Executive Order 13783, “Promoting Energy Independence and Economic Growth,” executed by the Secretary and President respectively in March of this year.

Critics of the Order contend that all threats to the species and potential management options were considered over a yearslong process culminating in the 2015 plans, and noted that science dictated which were the top species management concerns and what the most potentially successful conservation measures were that could be employed to counter those risks, so a review and reconsideration of these same issues is unwarranted and will not result in a better outcome.  They further note that amending the management plans to allow for additional oil and gas development ignores the fact that most core habitat is not coincident with the highest potential oil and gas plays, is inconsistent with the prior state and federal consensus on the species conservation needs and habitat areas to avoid, and that the conservation plans were created to “include flexibility and an ongoing collaboration with the states.”  Supporters laud the effort saying that it is long overdue for the states’ views to be fully considered, and given equal weight to those of the federal government on how to best manage the species, and for restrictions on energy production and other public land uses to be thoroughly evaluated to determine if they are overly burdensome.  However, while commending Secretary Zinke for undertaking the review, House Natural Resource Committee Chairman, Rob Bishop (R-Utah) stated that the review, and any related adjustments that comes out of the process, alone is not enough to solve the problems identified by the administration, as current and future litigation could force plan amendments to revert back to the 2015 versions or be scrapped all together, and therefore legislation is a necessary component of how to address the species’ management.

While the results of the panel’s assessment will not be known for some time, we do know that nothing with respect to this species is definitive and we can expect years of rulemaking and litigation to come.

National Marine Fisheries Service Proposes Revised Guidance for Recovery Plans

On May 31, 2017, the National Marine Fisheries Service (NMFS) issued (pdf) proposed revised guidance for the development of recovery plans as required by the Endangered Species Act (ESA).  The proposal is aimed at prioritizing limited agency resources to advance the recovery of threatened and endangered species.  According to NMFS, this prioritization would be accomplished by focusing on the immediacy of the species’ overall extinction risk, extent of information regarding major threats, and certainty that management or protective actions could be implemented successfully.

The proposal revises the Recovery Plan Preparation and Implementation Priorities and Recovery Plans contained in the 1990 Listing and Recovery Priority Guidelines. NMFS finalized this original guidance on June 15, 1990.

NMFS proposes to revise Part B of the Guidance, “Recovery Plan and Implementation Priorities,” to increase the number of species priority numbers to 24 (currently there are only 12) by redefining the “magnitude of threat” and “recovery potential” criteria. The “magnitude of threat” criteria would be changed to a demographic risk rank based on the species listing status (threatened or endangered) and species’ condition for productivity, spatial distribution, diversity, abundance, or trends.  This proposed change is aimed at providing greater emphasis on the species’ risk and more detail on the factors in assessing the risk rank.

NMFS proposes to redefine a species’ recovery potential by splitting the criterion into three components: (1) extent of knowledge of major threats to the species and the species’ response to those threats: (2) whether the United States has jurisdiction to act; and (3) certainty that actions will be effective. Each of these components would have a “high” or “low to moderate” category.  This change is designed to improve the guidelines by including the United States’ ability to influence recovery actions and providing greater detail in the definition of recovery potential.

Finally, NMFS proposes to add two new recovery task priority numbers. Task Number 4 is defined as actions not linked to downlisting and/or delisting criteria and not needed for ESA recovery, but needed to facilitate post-delisting monitoring. Task Number 0 is defined as actions that are not needed for ESA recovery, but that would advance broader goals beyond delisting.

The comment period on the proposed revisions is open through June 30, 2017.

Nevada Solar Project Survives Ninth Circuit Review Despite Impacts to Tortoise Connectivity

On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii).  The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project violated the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act and were arbitrary and capricious.

The Silver State South Solar Project (Project) is a 2,400-acre utility-scale solar power facility on federal land managed by BLM in the Ivanpah Valley.  The Project is located within the federally threatened desert tortoise Eastern Mohave Recovery Unit, one of four such units designated in the Desert Tortoise Recovery Plan. The Ivanpah Valley is identified as one of three areas of high-quality habitat within the Eastern Mohave Recovery Unit.  Critical habitat is designated for tortoise in the Ivanpah Valley; however, the Project site is not within the boundaries of designated critical habitat.

The plaintiff challenged FWS’s issuance of and BLM’s reliance upon a biological opinion that concluded the Project (i) was “not likely to adversely affect” the tortoise’s critical habitat and (ii) would not jeopardize the continued existence of the tortoise.  Specifically, the plaintiff challenged the Project’s acknowledged potential reduction in connectivity between tortoise critical habitat areas within the Ivanpah Valley, maintaining that such a reduction is incompatible with the findings in the biological opinion.

The Court first rejected plaintiff’s argument that merely by including the entire Ivanpah Valley, including designated critical habitat, within the Project’s “action area,” the biological opinion is required to analyze the Project’s effects on critical habitat:  “[T]he inclusion of critical habitat in a biological opinion’s action area does not automatically trigger the duty to conduct an adverse modification analysis; the relevant inquiry remains whether the proposed action is ‘likely to adversely affect’ critical habitat.”  The Court upheld FWS’s concurrence with BLM’s “not likely to adversely affect” tortoise critical habitat finding as consistent with the regulations governing consultation under section 7 of the ESA.

Next, the Court considered plaintiff’s allegations that reduced connectivity constitutes “adverse modification” of critical habitat.

As an initial matter, the Court found that the plain language of the ESA requires an adverse modification of critical habitat consists of two elements, (i) a “modification” of the habitat that is (ii) “adverse.”  The Court then examined the 1986 regulation defining “adverse modification,” invalidated by the Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), and the 2016 replacement regulation, both of which require a “direct or indirect alteration” that “appreciably diminishes the value of the critical habitat.”

The Court ruled that under the statute and the regulations, there is “[a] threshold requirement that there must be an alteration to the critical habitat” in order to make a finding of adverse modification.  Consequently, the Court held that the Project’s reduced connectivity does not constitute adverse modification because the Project did not alter and would not result in an alteration to tortoise critical habitat; it is an impact on the species, and properly evaluated under the jeopardy prong of ESA section 7(a)(2).

The Court also found that FWS’s comments and recommendations on the draft National Environmental Policy Act document regarding the Project’s adverse impacts on recovery and connectivity within the Ivanpah Valley were not inconsistent with its no jeopardy/no adverse modification determinations in the biological opinion.

Ninth Circuit Upholds Forest Service’s Construction of New Roads in Grizzly Bear Habitat

On May 17, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling by the U.S. District Court for the District of Montana and upheld the U.S. Forest Service’s (Forest Service) decision to construct 4.7 miles of new roads in the Kootenai National Forest. The Kootenai National Forest is managed pursuant to the Forest Service’s Kootenai National Forest Plan (Forest Plan) that includes access-related amendments prohibiting any “net permanent increase[] in linear miles of total roads.”  These Forest Plan access amendments incorporate a 2011 Biological Opinion and Incidental Take Statement (ITS) for the threatened grizzly bear (Ursus arctos horribilis) that were developed in consultation with the U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act (ESA).  As incorporated into the Forest Service’s revised Forest Plan, the ITS permits incidental take of grizzly bears so long as the total linear miles of roads do not permanently increase in certain designated areas likely used by the species.

In 2013, the Forest Service approved the 4.7 miles of new roadway in connection with its approval of the Pilgrim Creek Timber Sale Project (Project), which requires the construction of new roadways for use by Forest Service staff and government contractors during implementation of the Project. The Project plan includes the installation of a barrier that will close off the new roads to all motorized travel following conclusion of the Project, although the Forest Service’s Record of Decision (ROD) approving the Project stated that “[t]hese closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations.”

In 2013, Plaintiff Alliance for the Wild Rockies brought suit, claiming that the Project would create a net permanent increase in road miles in violation of the Forest Plan access amendments and would therefore violate: (1) the National Forest Management Act (NFMA); (2) the ESA, by failing to comply with the ITS limitations; and (3) NEPA, by incorrectly stating in the Environmental Impact Statement (EIS) for the Project that the Project will comply with the Forest Plan access amendments. The District Court enjoined the Project, pending preparation of a supplemental EIS, due largely to the ROD’s statement indicating that the new roads’ closure may not be permanent.  The Forest Service then issued a Clarification/Amendment of the ROD in 2014 to make it clear that all new roads constructed for the Project will be closed with a permanent closure device.  Based upon this ROD Clarification/Amendment, the District Court lifted the injunction, and the Plaintiff appealed.

The Ninth Circuit easily affirmed the lower court’s grant of summary judgment in favor of the federal defendants, ruling that the Forest Service complied with the NFMA, ESA, and NEPA. The court held that the Forest Service was not arbitrary and capricious in the implementation of its Forest Plan or its interpretation that the planned 4.7 miles of new roads do not count toward the prohibited net permanent increase in new roads because they instead constitute an acceptable, temporary increase in road miles that is permitted by the Forest Plan amendments.

U.S. District Court Finds EPA Erred in Approving Pesticides Known To Impact Endangered Species

On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (“EPA”) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow continued use of the pesticides violated by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”) because the chemical compounds are known to cause harm to both pollinators and other animals, including threatened and endangered species.

Under FIFRA, the EPA has the authority to immediately suspend the use of a pesticide that poses an “imminent hazard,” which may include a threat posed to the survival of a species that has been declared threatened or endangered under the ESA.  Plaintiffs argued that EPA acted arbitrarily and unreasonably when it failed to address the threat posed to threatened and endangered species by pesticides containing clothianidin.  Because plaintiffs failed to provide any studies or data to back up the assertion that pesticides would have an adverse effect on threatened or endangered species, the court found that EPA was entitled to summary judgment on the FIFRA claim in this regard.

Plaintiffs also alleged that EPA violated the ESA when it failed to consult with the U.S. Fish and Wildlife Service (the “Service”) about the pesticides’ potential impact on threatened or endangered species or their critical habitat before approving the pesticides’ registration and use.  In response, EPA alleged that plaintiffs lacked standing to pursue their ESA claims, and the intervenors in the case alleged that the court lacked jurisdiction to hear the ESA claims at least as to five of the pesticide approvals at issue.  Because EPA held a public hearing and comment period before approving five of the pesticides, the court found that the jurisdictional limitations of FIFRA barred consideration of challenges to EPA’s approvals of those five pesticides, but that the court properly had jurisdiction to consider the challenges to the remaining 68 EPA pesticide approvals.  The court, however, rejected EPA’s argument that plaintiffs lacked standing to pursue their ESA claims, in light of the multiple declarations submitted by plaintiffs in support of standing.

EPA additionally argued that eleven of the approvals were not “agency actions” that would trigger the ESA’s consultation requirements because they were conversions from conditional to unconditional registrations – not new registrations or approvals.  However, because EPA retained discretion to change or influence the pesticide’s use when converting a registration from conditional to unconditional, the court found that those eleven approvals were agency actions subject to the ESA’s consultation requirements.  The court further found that nine of the “approvals” were not, in fact, agency actions, but were notices of pending applications that are not subject to ESA consultation requirements.  In total, the court found that EPA failed to consult on the approvals or registrations of 59 pesticides as required by the ESA, but that EPA had not violated the ESA when it approved 14 other pesticides because those approvals were not agency actions or because FIFRA barred the challenges.  The court otherwise denied plaintiffs’ motion for summary judgment, and ordered the parties to submit a briefing schedule regarding the appropriate remedies for EPA’s failure to consult with the Service.

Ninth Circuit Upholds the U.S. Fish and Wildlife Service’s Determination on the Whitebark Pine

On April 28, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Montana’s finding that the U.S. Fish and Wildlife Service’s (Service) determination that listing the whitebark pine (Pinus albicaulis) as a threatened or endangered species is “warranted but precluded.”  Wildwest Inst. v. Kurth, No. 14-35431 (9th Cir. Apr. 28, 2017). Two environmental groups, Wildwest Institute and the Alliance for the Wild Rockies (Plaintiffs), filed a lawsuit challenging the Service’s determination, asserting that the Service violated the Endangered Species Act (ESA) by (1) not strictly following the Service’s listing priority guidelines; (2) considering factors outside of the guidelines; and (3) finding that listing the whitebark pine was precluded by species with a lower degree of threat without providing individualized explanations for each of the precluding species.  Plaintiffs also argued that the Service inappropriately relied on budget limitations and court-ordered listing deadlines.

Plaintiffs’ arguments focused on the legislative history of the ESA and the listing priority number that the Service had assigned to the whitebark pine as compared to other species that precluded its listing.  The Ninth Circuit rejected Plaintiffs’ interpretation of the legislative history, finding instead that the relevant portion of the ESA is clear on its face.  The court then found that the ESA and the Service’s listing priority guidelines provided room for flexibility, and that nothing in the ESA, legislative history or guidelines requires the Service to make its listing decisions based solely on the listing priority number assigned to a species.  The Ninth Circuit also concluded that the Service’s concise discussion of the other precluding species was appropriate.  Finally, the Ninth Circuit noted that it was appropriate for the Service to consider budgets and court-ordered deadlines for other species when making a “warranted but precluded” finding.

ESA Round-Up – April 2017

Despite a slow start to 2017, largely due to the White House Memorandum delaying the effective date of new regulations, the U.S. Fish and Wildlife Service (Service) is picking up steam.  In April 2017, the Service initiated the following activities under the Endangered Species Act (ESA):

  • On April 20, 2017, the Service initiated five-year status reviews for 138 species in Hawaii, Oregon, Washington, and California. The Service is conducting the status reviews pursuant to section 4(c)(2) of the ESA, which requires the Service to review each listed species’ status at least once every five years. The Service is requesting new information regarding the species by June 19, 2017.
  • On April 19, 2017, the Service issued 90-day findings on petitions to list the Florida black bear (Ursus americanus floridanus) as threatened under the ESA and the Mojave population of the desert tortoise (Gopherus agassizii) as an endangered species under the ESA. Based on its review, the Service concluded that the petitions did not present substantial scientific or commercial information indicating that the petitioned actions may be warranted.
  • On April 17, 2017, the Service initiated five-year status reviews for eight endangered animal species. As described above, the Service is required to conduct the status reviews pursuant to section 4(c)(2) of the ESA. The Service is requesting that information regarding the species be submitted by June 16, 2017.
  • On April 7, 2017, the Service withdrew a proposed rule to list the headwater chub (Gila nigra) and a distinct population segment (DPS) of the roundtail chub (Gila robusta) from the lower Colorado River basin as threatened species under the ESA. The Service explained that the withdrawal was based on a thorough review of the best scientific and commercial data available, which indicated that the headwater chub and the roundtail chub DPS are not discrete taxonomic entities and do not meet the definition of a species under the ESA. According to the Service, the fish are now recognized as a part of a single taxonomic species—the roundtail chub (Gila robusta). The Service therefore concluded that the species were not listable species under the ESA.
  • On April 5, 2017, the Service issued a final rule removing the scarlet-chested parrot (Neophema splendida) and the turquoise parrot (Neophema pulchella) from the Federal List of Endangered and Threatened Wildlife. After reviewing the status of the species, the Service concluded that the threats to the parrots had been eliminated or reduced, and that the species are not currently in danger of extinction, and are not likely to again become in danger of extinction within the foreseeable future in all or a significant portion of their ranges.
  • On April 5, 2017, the Service issued a proposed rule to list the yellow lance (Elliptio lanceolata) as a threatened species under the ESA. The yellow lance is a freshwater mussel native to Maryland, Virginia, and North Carolina. According to the Service, the largest threats to the future viability of the yellow lance relate to habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity.