On Friday, February 20, a federal district court denied (pdf) a motion to dismiss, thereby breathing life into an Endangered Species Act (ESA) challenge brought against the Export-Import Bank of the United States (Bank) for funding activities in and around Australia’s Great Barrier Reef World Heritage Area. See Center for Biological Diversity, et al. v. Export-Import Bank of the United States, No. C 12-6325 SBA (N.D. Cal. Feb. 20, 2015). As previously reported on this blog, the case alleges that the Bank violated section 7 of the ESA by failing to consult with federal wildlife agencies concerning the potential effects of constructing and operating two liquefied natural gas projects on four listed species and their habitats. In support of their motion to dismiss, Defendants argued that the Bank had taken no “agency action” that triggers section 7 consultation because the project occurs entirely within a foreign country and its territorial waters. In other words, Defendants argued that the project falls outside the geographic scope of section 7, which only applies to actions within the territory of the United States and “upon the high seas.” The Court rejected this argument, holding that facts alleged in the Plaintiffs’ complaint sufficiently supported an inference that the project being funded by the Bank includes shipping activities that occur “upon the high seas.”
On February 17, 2015, the U.S. Fish and Wildlife Service announced its final decision to remove the Oregon chub (Oregonichthys crameri) from the Federal List of Endangered and Threatened Wildlife under the Federal Endangered Species Act (ESA). The decision to delist the chub also removes designated critical habitat for the chub throughout its range.
The Oregon chub is endemic to the Willamette River drainage of western Oregon. The Service listed the Oregon chub as endangered on October 18, 1993. The Service designated critical habitat for the chub in a final rule published on March 10, 2010. On April 23, 2010, the Service published a final rule reclassifying the chub as threatened. The Service’s decision to delist the chub is based on its finding that the species has recovered and no longer meets the definition of an endangered or threatened species under the ESA, and that threats to the species have been eliminated or reduced such that chub populations are stable.
On January 28, 2015, Congressman Bill Flores (R-TX) introduced House Bill H.R. 585 (pdf), which seeks to amend the Endangered Species Act of 1973 (ESA) to establish a new procedure for approval of certain stipulated consent decrees between the federal government and third parties. Specifically, in cases brought under the ESA’s citizen suit provision (16 U.S.C. § 1540(g)), H.R. 585 would require that parties interested in intervening in a lawsuit would have 30 days to intervene, during which time the parties in the case would not be able to file a motion for a consent decree or to dismiss the suit based on a settlement agreement. The bill would also require that a court presume that an intervening party’s interest in an ESA lawsuit would not be adequately represented, unless evidence to the contrary is presented. If a party is allowed to intervene, the bill would require that the case be sent to the court’s mediation program or a magistrate judge for settlement discussions.
Perhaps the most striking change that H.R. 585 proposes is to prevent a court from awarding any party litigation costs (including attorney’s fees) when the case is resolved through a consent decree, and would prohibit payment of litigation costs to a plaintiff whenever the matter is dismissed as a result of a settlement. The bill would also require as a prerequisite to the entry of any consent decree, the approval of each State and county in which a species that is the subject of the lawsuit occurs. Additionally, without this approval, the court would be prohibited from dismissing a case pursuant to a settlement agreement or consent decree. In order to facilitate the timely involvement of the relevant States and counties, once a settlement is proposed, the bill would require that the Secretary of Interior notify each State and county in which the Secretary believes the species that is the subject of the lawsuit occurs. If the relevant States and counties do not respond to the notice within 45 days, the court may deem this lack of response a tacit approval of the agreement, and as such enter the consent decree and dismiss the lawsuit. In the event that some or all of the relevant States and counties respond to the notice from the Secretary with a statement of non-opposition or approval, the appropriate official from each State or county that responded must sign off on the settlement in order for it to be binding and enforceable.
On February 10, 2015, the National Marine Fisheries Service and the National Oceanic Atmospheric Administration (“Services”) issued a final rule (pdf) to include captive killer whales in the Southern Resident killer whale distinct population segment (DPS) of killer whales (Orcinus orca). The DPS has been listed as endangered under the federal Endangered Species Act (ESA) since 2005, but the listing excluded whales held in captivity. In January 2013, People for the Ethical Treatment of Animals petitioned the Services to remove the exclusion and extend the protections of the ESA to captive whales. After reviewing the petition, the Services concluded that captive animals cannot be assigned separate legal status from their wild counterparts.
The revised rule will affect one whale in the United States, Lolita, who has lived at the Miami Seaquarium since 1970. The total global population of the Southern Resident killer whale DPS is estimated to be fewer than 80 whales.
On February 2, 2015 the National Marine Fisheries Service (“Service”) announced its plan to extend the period for public comments on its December 3, 2014 proposed designation of critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida), reported on this blog. (80 FR 5498 [pdf].) The Service’s proposed rule would designate millions of acres in the Bering, Beaufort, and Chukchi seas as critical habitat for the threatened Arctic Ringed Seal. The public comment period will now remain open until March 31, 2015. Additionally, the Service announced that a fifth public hearing on the proposed critical habitat designation will be held in Bethel, AK on February 26, 2015 from 4 p.m. to 7 p.m. The hearing will take place at the Yupiit Piciryarait Cultural Center, 420 Chief Eddie Hoffman Highway, Bethel, AK 99559.
The Transportation Research Bureau (“TRB”), a division of the National Research Council within the National Academies, has released a report entitled Innovative Airport Responses to Threatened and Endangered Species (pdf). The report is intended to assist airport sponsors and operators in addressing federally listed species issues on or near their facilities. The introduction to the report includes the following summary of its contents:
“ACRP Report 122 first introduces relevant regulations and then provides a discussion of potential areas of conflict between airports and those regulations as well as information on how to address those challenges. Additionally, the primer includes a series of case studies to provide users with a variety of approaches, actions, and measures that have been successfully implemented in diverse geographic, facility, and regulatory settings.”
The TRB has also produced, along with the report, a compilation (pdf) of helpful resources.
Last week, the U.S. Fish and Wildlife Service (Service) published three new rules, continuing its flurry of activity from December as we previously noted here and here. Below are the latest final and proposed rules issued by the Service.
January 16, 2015 – The Service issued a final rule listing the Mexican wolf (Canis lupus baileyi) (pdf) as endangered under the Endangered Species Act (ESA). The Mexican wolf is a subspecies of the gray wolf that was listed as endangered in the southwestern United States and Mexico in April of 1976. When the gray wolf was listed as endangered in 1978, it subsumed the Mexican wolf subspecies listing. The Service proposed to delist the gray wolf in June 2013, which necessitated this final rule. The Service identified illegal shooting of Mexican wolves as significantly affecting the species. Additionally, the Service concluded that the species is significantly affected by inbreeding, loss of heterozygosity, loss of adaptive potential, and small population size.
In addition to the final rule listing the Mexican wolf, the Service also published a final rule to revise the regulations (pdf) for the nonessential experimental population of the Mexican wolf under Section 10(j) of the ESA. The Service: (1) modified the geographic boundaries in which the experimental population of Mexican wolves are managed; (2) modified the management regulations that govern the initial release, translocation, removal, and take of Mexican wolves; and (3) issued a permit under Section 10 of the ESA for management of Mexican wolves both inside and outside of the Mexican Wolf Experimental Population Area.
January 16, 2015 – The Service published a proposed rule (pdf) to create a species-specific rule under authority of section 4(d) of the ESA that provides measures necessary and advisable to provide for the conservation of the northern long-eared bat (Myotis septentrionalis), should the Service determine that the species is a threatened species under the ESA. Under section 4(d) of the ESA, the Secretary of the Interior has discretion to issues such regulations as she deems necessary and advisable to provide for the conservation of the species. Although the Service has not yet made a final listing determination for the northern long-eared bat, it proposed the species-specific rule in the event that the final listing determination is to list the species as threatened. If the Service lists the species as threatened, it intends to publish a final section 4(d) rule concurrent with, and as a component of, the final listing rule.
The proposed rule prohibits purposeful take of the species throughout its range except in instances of removal of northern long-eared bats from human dwellings and authorized capture and handling of northern long-eared bats by individuals permitted to conduct these activities for other listed bats. The rule would except incidental take of the species from otherwise lawful activities in areas not affected by white nose syndrome (WNS), a disease affecting many U.S. bat populations. In areas affected by WNS, all incidental take prohibitions would apply, except incidental take attributable to forest management practices, maintenance and limited expansion of transportation utility and rights-of-way, removal of trees and brush to maintain prairie habitat, and limited tree removal projects, provided these activities protect known maternity roosts and hibernacula. Removal of hazardous trees for the protection of human life or property are also excepted from the take prohibitions. The Service also announced that it is reopening the public comment period on its October 2, 2013 proposed rule to list the northern long-eared bat as an endangered species.
Coming in just under the wire for the New Year, the U.S. Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) published new rules today, making December a very busy month for Endangered Species Act (ESA) listing decisions. Below are the latest items from FWS and NMFS to be published in 2014.
December 31, 2014 – FWS issued a 90-day finding on a petition to list the Monarch Butterfly (Danaus plexippus plexippus) as a threatened species under the ESA. FWS found that the information and sources cited in the petition present substantial commercial or scientific information that indicates listing the Monarch Butterfly may be warranted under listing factors A, B, C, and E of ESA section 4(a)(1). FWS is seeking additional information on listing factors for the Monarch Butterfly from now through March 2, 2015, but declined to issue an emergency rule temporarily listing the butterfly as threatened. After reviewing all of the new data, FWS will issue a 12-month finding on the petition.
December 31, 2014 – NMFS issued a correction to its final rule listing five species of Sawfish as endangered. The final rule, published on December 12, 2014 and reported on this blog, inadvertently included an instruction to delete the U.S. Distinct Population Segment of Smalltooth Sawfish (Pristis pectinata) from the list of endangered species under the ESA. This correction removes language from the regulatory text that caused the Smalltooth Sawfish to be de-listed. The correction will be effective January 12, 2015.
Continuing the quarter century controversy over the listing of the Coastal California gnatcatcher (Polioptila californica californica) as a threatened subspecies, the U.S. Fish & Wildlife Service (FWS) has concluded that a petition to delist the gnatcatcher may be warranted. (Federal Register PDF). The petition asserts that the listing of the Coastal California gnatcatcher as a distinct subspecies is not based on the “best scientific data available” as is required by the Endangered Species Act. Nossaman prepared the petition on behalf of the National Association of Home Builders and the California Building Industry Association.
The petition is based on a recent peer-reviewed and published paper authored by Professor Robert Zink of the University of Minnesota and Dr. George Barrowclough of the American Museum of Natural History and their colleagues. The 2013 study analyzed the nuclear DNA obtained from gnatcatcher specimens throughout the range of the species (Southern California south to the tip of Baja California, Mexico). The study concludes that there is no genetic basis for maintaining a subspecies classification for the Southern California gnatcatchers. Rather, members of this putative subspecies should be considered part of the same taxonomic grouping as the species Polioptila californica, which ranges from Ventura County in Southern California to the southern tip of Baja California, Mexico.
FWS listed the gnatcatcher as a threatened subspecies in 1993. The listing largely relied on analysis of physical measurements such as feather coloration of gnatcatcher museum specimens collected by the petitioner for the listing, Dr. Jonathan Atwood. During the debate over the listing, Dr. Atwood acknowledged that the subspecies designation for the Southern California gnatcatcher was central to the listing decision because “[n]o credible scientist would claim or has claimed that California gnatcatchers as a species are endangered or threatened throughout their entire range.” Several scientists at the time testified that the determination of whether the gnatcatchers in southern California were part of a distinct subspecies required analysis of gnatcatcher genetics.
In 1994 a federal court determined that the FWS had violated the Administrative Procedure Act and the ESA in refusing to provide the public with an opportunity to review and comment on morphological data relied on by the Service in the listing decision. Endangered Species Comm. v. Babbitt, 852. Supp. 32 (D.D.C. 1994). After the court’s decision the Service made the data available and relisted the gnatcatcher.
In 2000 Dr. Zink and other scientists (including Dr. Atwood) published an analysis of gnatcatcher mitochondrial DNA (passed on to offspring by female gnatcatchers) that concluded that the coastal California gnatcatcher was not a distinct subspecies. The Service reviewed the paper and concluded that analysis of nuclear DNA was required to resolve the issue. The 2013 Zink et. al. paper analyzes nuclear DNA as requested by FWS.
The listing of the gnatcatcher triggered an unprecedented twenty-year conservation planning process in Southern California that continues today. This planning process has included the approval of numerous habitat conservation plans (HCPs) and natural community conservation plans (NCCPs) in Orange, Riverside, and San Diego counties. Collectively, these plans regulate land-use on millions of acres. The plans have resulted in the establishment and management of regional conservation reserves of several hundred thousand acres of the coastal sage scrub habitat of the gnatcatcher and other species covered by the plans.
The deadline for comments on the FWS finding and the delisting petition is March 2, 2015.
The United States District Court for the District of Columbia recently held (pdf) that the U.S. Fish and Wildlife Service (Service) violated the Endangered Species Act (ESA) when it issued a final rule delisting gray wolves in nine states (Final Rule) because the Service’s interpretation of the ESA, particularly its identification of a Distinct Population Segment (DPS) to support delisting, was unreasonable. Humane Society of the United States v. Jewell, Case No. 13-186 (D.D.C. Dec. 19, 2014).
The Final Rule, which took effect in January 2012, is the Service’s fourth attempt to delist the DPS at issue in the case. The court began its decision with a discussion of the ESA’s general statutory framework and the history of efforts to protect the gray wolf, followed by an overview of previous attempts by the Service to delist the wolf population. A brief summary of the history of the Service’s treatment of the gray wolf can be found here. After multiple district courts had struck down the Service’s previous efforts to delist populations of the gray wolf, the Service tried again in 2011. The Final Rule established a DPS of gray wolves known as the “western great lakes DPS,” which encompasses Minnesota, Wisconsin, Michigan, and parts of six other states. The Service delisted the DPS on the grounds that wolves from the DPS were not facing extinction and were not likely to face extinction in the foreseeable future.
As an initial matter, the court rejected the defendants’ procedural attack and held that the plaintiffs had standing to sue. Defendants argued that plaintiffs lacked standing because they could not demonstrate that delisting gray wolves would reduce gray wolf populations and thus wolf sightings, and thus the plaintiffs failed to demonstrate the required harm. The court disagreed, however, noting that data from Wisconsin and Michigan demonstrated that wolf populations have diminished in areas where hunting them had been made legal.
Turning to the substantive issues, the court held that the Service’s interpretation of the ESA was unreasonable, and in violation of the Administrative Procedures Act, for two reasons: (1) the structure, history, and purpose of the ESA do not permit the designation of a DPS for the purpose of delisting species that are member of the DPS, and (2) the ESA does not allow the designation of a DPS made up of species already protected under the ESA at a more general taxonomic level.
First, the court held that the Service’s creation of a DPS “operates as a one-way ratchet” to provide protections to a covered species. In other words, the Service cannot create a DPS and simultaneously delist that same DPS. The court reasoned that the Service’s own DPS policy, which states that the ESA “is intended to authorize listing of some entities that are not accorded the taxonomic rank of species,” necessarily implies that a prerequisite for designation of a DPS is that the potential DPS qualify for listing as endangered or threatened. Therefore, under the Service’s own requirements, if a potential DPS does not qualify as endangered or threatened, the DPS may not be designated. As such, the court found the Service cannot designate and simultaneously delist a DPS, as it had done in the Final Rule.
Second, the court found that, because the entire western Great Lakes DPS is part of the gray wolf species (Canis lupus), a species listed throughout the United States, the protections afforded to the DPS are controlled by the listing of the gray wolf and may not be reduced below that level. The court stated that allowing the Service to use the DPS tool to delist smaller, healthy populations of a broader listed species would subvert the purposes of the ESA. The court explained that the DPS tool was incorporated into the ESA to allow the Service the flexibility to designate smaller population groups of a species in need of ESA protections when protections are not necessary throughout a species’ entire range, not to allow the Service to remove protections from a DPS of a more broadly protected species.
Finally, the court held that, even if the Final Rule had been properly promulgated, it would still be invalid because the Service failed to adequately explain (1) why territory suitable for gray wolf population is not a significant part of the species’ range, (2) the impact of combined mortality factors such as disease and takings, (3) the adequacy of state regulatory schemes, and (4) how the presence of an unregulated killing zone in Minnesota does not constitute a threat to the species. The court found that the Service’s lack of explanations rendered the Final Rule arbitrary and capricious.
Accordingly, the court vacated the Final Rule, thereby restoring ESA protections to the western Great Lakes DPS.