On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus). The murrelet is listed as a threatened species under the Endangered Species Act (ESA). The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011. 61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.
The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District of Columbia’s decision in American Forest Resource Council (AFRC) v. Ashe, 946 F. Supp. 2d 1 (D. D.C. 2013), aff’d 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015). In that case, AFRC sought to compel the Service to delist the murrelet and vacate its critical habitat designation. The Court granted in part AFRC’s motion for summary judgment. Following the decision, the Service voluntarily requested that the matter be remanded, without vacatur, so that the Service could undertake a review of the murrelet’s designated critical habitat, taking into account all of the scientific information developed since the murrelet’s last status review in 2011.
In 1996, the Service designated approximately 3,887,800 acres of critical habitat in California, Oregon and Washington. 61 Fed. Reg. 26,256. When the Service reexamined this determination in 2011, the Service amended the prior critical habitat determination to include only 3,697,100 acres of critical habitat, composed of 37 subunits in Washington, 33 in Oregon, and 31 in California. 76 Fed. Reg. 61,599. The current proposal is to reaffirm the 2011 critical habitat determination.
The proposed rule states that the Service is accepting comments on its proposal until October 26, 2015.
Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence. (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015). In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer’s raisin crop qualified as a “clear physical taking” requiring compensation under the Fifth Amendment to the U.S. Constitution. Writing the decision for the majority, Chief Justice Roberts distinguished the raisin farmer’s situation from the oyster farmer’s situation addressed in Leonard & Leonard v. Earle, 279 U.S. 392 (1929), explaining that unlike the raisins at issue in Horne, the oysters at issue in Leonard belonged to the state, and therefore requiring the oyster farmer to turn over a percentage of the shucked shells did not result in a taking of private property requiring compensation under the Fifth Amendment. Mr. Jacobs’ article focuses on this aspect of Horne, and asks whether Chief Justice Roberts breathed new life into a potential takings defense for ESA determinations and regulations. Specifically, did Chief Justice Roberts’ decision resuscitate the concept of public ownership of wild animals? If it did, at least one individual quoted in the article opines that the concept could be used to justify regulating activities on private property (e.g., prohibiting construction that directly impacts a listed species), or limiting use of a related resource (e.g., regulating the flow of water for the benefit of ESA protected fish species), all without running afoul of the Fifth Amendment. Notably, however, the majority of those quoted in the article caution that Chief Justice Roberts’ statement should not be read to apply beyond its limited facts. While I personally find the latter position to be the more compelling of the two, I also anticipate that the Government will be raising the defense in the not too distant future.
Photo: U.S. Fish and Wildlife Service
On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey. Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5. In pertinent part, these sections make it unlawful to “take, possess, or needlessly destroy” the nest or eggs of any bird (section 3503) or any bird-of-prey (section 3503.5). In short, the laws prohibit the take of non-endangered or non-threatened nesting birds and birds-of-prey.
The provisions have caused confusion for many years regarding what activities trigger the sections’ prohibitions; the Department believes that the new regulations will help clarify the sources of confusion. Among other things, the proposed regulations will define key terms, specify exceptions to the take prohibitions, and describe the Department’s consultation role in implementing the California Environmental Quality Act (CEQA), as that statute relates to conserving populations of birds The Department maintains that through outreach to various stakeholders, the Department “has developed a clear understanding of the challenges these prohibitions present to agriculture, forestry, the building industry, transportation agencies, utilities and others, as well as the concerns held by environmental and conservation organizations….”
According to the Department, the regulations are “the most reasonable interpretation of these statutes that implements the Legislature’s intent and balances stakeholder concerns with the Department’s conservation mission.” Notably, the Department is not proposing to create a separate permit system for nesting birds and birds-of-prey, but plans to use the proposed regulations to integrate CEQA with the current code sections.
The stated deadline for public comment on the proposed rulemaking is September 28, 2015.
On August 6, 2015, the California Fish and Game Commission (Commission) voted to list the southern Sierra Nevada evolutionarily significant unit of the fisher (Pekania pennati) as a threatened species under the California Endangered Species Act, but determined not to list the northern California evolutionarily significant unit. In doing so, the Commission followed the recommendation of the California Department of Fish and Wildlife (Department).
According to the Department’s status review, “[n]ative populations of fishers currently occur in Canada, the western United States (southwestern Oregon, California, Idaho, and Montana) and in portions of the northeastern United States (North Dakota, Minnesota, Wisconsin, Michigan, New York, Massachusetts, New Hampshire, Vermont, and Maine).” The status review goes on to state that “[i]n California, fishers inhabit portions of the Coast Range, Klamath Mountains, southern Cascade Mountains, northern Sierra Nevada, and the southern Sierra Nevada.” The southern Sierra Nevada evolutionarily significant unit of the fisher extends from Kern County in the south to Mariposa County in the north.
Senator Dianne Feinstein (D-CA) introduced a bill last week to help address ongoing and future drought in California. The bill, known as the California Emergency Drought Relief Act (Act), is expected to be folded into broader legislation addressing the historic drought in the Western United States. The bill’s goals are to move existing water supplies and develop new water sources in order to help those communities suffering the worst effects of the drought, while complying with the existing regulatory regime under the Endangered Species Act and the Clean Water Act. Senator Feinstein’s bill will compete with H.R. 2898, sponsored by Representative David Valadeo (R-CA), which passed in the House on July 16, 2015.
The Act outlines a process for emergency releases of water to Central Valley Project (CVP) agricultural, municipal and industrial contractors, CVP refuge service and repayment contractors, State Water Project (SWP) contractors, and other localities and municipalities in the State. The Act would also authorize streamlined environmental review procedures for water deliveries addressing emergency drought conditions, and delegate the design of such streamlined procedures to the Council on Environmental Quality and the applicable federal agency.
With respect to species protection, the Act would authorize appropriations of $4,000,000 annually through 2020 for the implementation of the Recovery Plan for the Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, and Central Valley steelhead. The Act also includes provisions for evaluating nonstructural barriers at Sacramento-San Joaquin Bay-Delta (Delta) cross-channel gates and other key Delta junctions to prevent straying of threatened or endangered salmonids, as well as measures to reduce predation and enhance habitat for threatened and endangered Delta species. In addition, the Act directs the Secretary of the Interior to initiate studies by January 1, 2016 on the location and distribution of the federally threatened delta smelt throughout its range and to determine methods to minimize the effects of the CVP and SWP operations on the delta smelt, among other measures.
The Act also casts a wide net to reduce the risk of a water deficit in the face of current and potential future drought conditions in California, providing for a new U.S. Department of Agriculture program to help stabilize water supplies for small rural and disadvantaged communities, and funding for select desalination projects and water storage, water recycling, water conservation and groundwater recharge projects.
On July 24, 2015, the U.S. Fish and Wildlife Service (Service) published a notice seeking authorization from the Office of Management and Budget to evaluate habitat conservation banks established under the Endangered Species Act (ESA) through a survey of bank sponsors and managers. 80 Fed. Reg. 44,147. The Service and the Department of the Interior’s Office of Policy Analysis state that they are undertaking this effort to “identify potential institutional or other impediments to the habitat conservation banking program, and develop possible options for encouraging expanded use of the program.”
As of January 2015, 132 habitat conservation banks were approved by the Service. The upcoming survey is designed to encompass all types of entities that sponsor habitat conservation banks—at both the corporate, or organizational, and the individual bank level—and aims to gather the following information through voluntary responses: (1) background information on the banks; (2) information about experience with the conservation banking program; (3) perceptions of technical and institutional obstacles encountered in the conservation banking program; and (4) perceptions of incentives that would help foster successful banks.
At this stage, the Service is requesting comments on the survey itself, specifically: (1) whether or not it is necessary and of practical utility; (2) the accuracy of the Service’s estimate of the burden for the survey; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the survey on respondents. The notice states that public comments on the survey are being accepted through August 24, 2015.
Whether dealing with water or with endangered species directly, there have been a number of recent developments that are worth keeping on your radar. Below is a quick summary of some of the more significant items:
July 16, 2015 – The House of Representative, in a largely partisan vote, passed H.R. 2898, the Western Water and American Food Security Act of 2015, by a vote of 245-176. The Act, which is intended to ease some of the effects of the unprecedented drought gripping California, requires, among other things, for the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Bureau of Reclamation to work with various California agencies and interested parties to increase water exports from the Central Valley Project and State Water Project. Immediately after the House passed the Act, a number of environmental groups voiced their opposition, citing potential impacts to federally protected fish species. Whether the House’s actions will result in any relief for California is still very much up in the air, as reports indicate that even if Republicans are able to garner the necessary Democratic votes to have the Act pass the Senate, the President is likely to veto the Act. (See July 16, 2015 Los Angeles Times article by Colin Diersing and Monte Morin.)
July 16, 2015 – The U.S. Fish and Wildlife Service and National Marine Fisheries Service announced a 60-day extension of the public comment period for proposed revisions to the Endangered Species Act petition regulations. According to the announcement, public comments will now be accepted if received on or before September 18, 2015. For a further discussion of the proposed revisions, see our May 19, 2015 post.
July 20, 2015 – People for the Ethical Treatment of Animals (PETA) filed a federal lawsuit against the Miami Seaquarium alleging that by keeping Lolita, a killer whale (Orcinus orca), in captivity, the Seaquarium is violating the Endangered Species Act (ESA). (See PETA’s July 20, 2015 Update.) Lolita is the only captive member of the Southern Resident killer whale Distinct Population Segment (DPS). While the 2005 DPS listing under the ESA excluded captive members of the species from ESA protection, an amendment in early 2015 eliminated that exclusion. (See our prior posts for additional background: January 31, 2014, January 22, 2015, February 16, 2015.)
In Building Industry Association of the Bay Area v. U.S. Department of Commerce, a decision with significant implications for property owners, the building industry, and the development community at large, the U.S. Court of Appeals for the Ninth Circuit rejected various challenges to the National Marine Fisheries Service’s (NMFS) critical habitat designation for the southern distinct population segment of North American green sturgeon (Acipenser medirostris), holding that (1) while NMFS must “consider” the economic impacts of designating areas as critical habitat, NMFS is not required to do a cost-benefit analysis, and (2) if NMFS decides not to exclude land from a critical habitat designation, that decision cannot be challenged in court. 2015 U.S. App. LEXIS 11645 (9th Cir. July 7, 2015).
Shortly after NMFS issued a final rule designating critical habitat for the green sturgeon, plaintiffs filed a lawsuit alleging that NMFS failed to comply with Section 4(b)(2) of the Endangered Species Act. Section 4(b)(2) provides that NMFS “shall” designate critical habitat after considering, among other things, the economic impact of designating any particular area as critical habitat. NMFS “may” exclude any area from designation if it determines the benefits of exclusion outweigh the benefits of designating the area as critical habitat.
Plaintiffs argued that Section 4(b)(2) created a nondiscretionary duty to “consider” the economic impacts of designating an area as critical habitat, and that it specifically required a “balancing-of-the benefits” methodology when considering such impacts.
The Ninth Circuit rejected this argument, concluding that after NFMS considered the economic impact of the designation, the entire exclusionary process is discretionary and there is no particular methodology that NMFS is required to follow. The Ninth Circuit found that the use of “outweigh” in the second sentence of Section 4(b)(2) limited the agency’s discretion to exclude areas from designation, but did not require the agency to weigh the economic benefits of exclusion against the conservation benefits of inclusion.
The Ninth Circuit also rejected plaintiffs’ claim that NMFS failed to take into consideration the economic impacts of designating “high conservation value” (HCV) areas, finding that the record demonstrated economic impacts in HCV areas were considered. And, it was after considering those impacts that NMFS determined that the HCV areas were critical to recovery of the green sturgeon and could not be excluded from designation.
Finally, the Ninth Circuit found that NFMS’s decision not to exclude areas from critical habitat is not reviewable. Citing its recent decision in Bear Valley Mutual Water Co. v. Jewell, 2015 WL 3894308 (9th Cir. Jun. 25, 2015), the court explained that the decision is unreviewable because section 701(a)(2) of the Administrative Procedure Act excludes agency action from judicial review if the agency action is committed to agency discretion by law.
On July 6, 2015, the U.S. Fish & Wildlife Service (Service) published a Draft Polar Bear (Ursus maritimus) Conservation Management Plan (Polar Bear Plan). The Polar Bear Plan identifies the continuing loss of sea-ice habitat as the single greatest threat to the species’ continued survival, and the global reduction of greenhouse gases (GHG) as the most important action to halt and reverse this trend. The Polar Bear Plan also addresses several “high priority” actions designed to maintain the polar bear population, including reducing risks from spills, protecting terrestrial denning habitat, and managing human-bear conflicts, so that when the species’ sea-ice habitat returns, it is sufficiently abundant and genetically diverse to recover.
Photo: U.S. Fish and Wildlife Service
In 2008, the Service listed the polar bear as threatened under the Endangered Species Act (ESA). Although the 2008 listing rule identifies sea-ice loss as the primary threat to the species, it does not prohibit or otherwise limit activities outside the current range of the polar bear, such as GHG emissions, even if a causal connection can be made between the conduct of the activity and the effects on the species.
The Service prepared the Polar Bear Plan to meet its statutory obligation under the ESA to prepare a recovery plan for each listed species. Because the polar bear is a listed species under the ESA, it is also considered “depleted” under the Marine Mammal Protection Act (MMPA). Thus, the Polar Bear Plan is also intended to serve as a conservation plan under the MMPA.
Although the Polar Bear Plan emphasizes that the single most important action for conservation and recovery of polar bears is to stop Arctic warming and the loss of sea-ice by limiting atmospheric levels of GHG, the Polar Bear Plan does not include GHG emission reduction thresholds or other quantitative measures to reduce atmospheric levels of GHGs. Rather, the Polar Bear Plan proposes development and implementation of a communications strategy to educate national and international audiences about the cause of Arctic warming and loss of sea-ice and the dire consequences to both the polar bear and Arctic peoples with connections to the species.
Among other things, the Polar Bear Plan’s conservation management strategy includes measures to minimize risk of spills to the polar bear, triggered in part by the opening of new shipping lanes and the prospect of offshore oil exploration and development due to summer sea-ice declines. Planned conservation and recovery actions include continued feedback on oil exploration plans and compliance documents, as well as “vigilant” implementation of existing regulatory mechanisms, including the National Environmental Policy Act, the ESA, and the MMPA.
The Service is accepting public comments on the Polar Bear Plan until August 20, 2015.
On July 1, 2015, the U.S. Fish and Wildlife Service (Service) published notice of its 90-day findings on petitions to list 31 species under the Endangered Species Act (ESA). Of these 31 species, all of which occur in the United States, the Service made positive 90-day findings on 21 petitions. A positive finding on a listing petition prompts a 12-month review of each species by the Service to determine whether listing is warranted. Of the remaining ten petitions, the Service concluded that nine petitions failed to provide substantial information demonstrating that listing action may be warranted. Most species addressed in the findings originated from a 53-species mega-petition filed by the Center for Biological Diversity (CBD) in July 2012. If the Service finalizes its May 21, 2015 proposed rule to revise the regulations for species listing petitions, multi-species petitions such as the one filed by CBD will no longer be accepted by the Service.
Perhaps most notably, the Service’s publication included a denial of the petition to reclassify or “downlist” the gray wolf (Canis lupis) from its current status as endangered to threatened. Twenty-two petitioners (including the Humane Society of the United States, CBD, and the Sault Sainte Marie Tribe of Chippewa Indians) signed the 2015 petition requesting reclassification of the gray wolf (excluding the Mexican wolf subspecies (Canis lupus baileyi) throughout the conterminous United States). The Service first concluded that the petition failed to provide substantial information indicating that the population proposed for reclassification may qualify as a distinct population segment. The Service acknowledged that this finding alone was enough to deny the petition for reclassification, but stated that the status of the gray wolf has been a source of significant controversy over the past few years, and due to the controversy, also concluded that the petition did not provide substantial information indicating that the gray wolf at large would qualify as threatened rather than endangered.