District Court Rules Grizzly Bears Trump Montana's Plan to Log Forest Lands to Fund Schools

On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended the associated Endangered Species Act Section 10(a)(1)(B) Permit(Permit) for incidental take of the threatened grizzly bear.  Friends of the Wild Swan v. Jewell, No. CV 13-61 (Aug. 21, 2014). The Montana Department of Natural Resources and Conservation (Department) prepared the HCP to support the U.S. Fish and Wildlife Service’s (Service) issuance of the Permit for take of two mammals and three fish species resulting from increased logging and road building. The Permit area is comprised solely of state trust lands in western Montana that the Department is mandated to manage for purposes of generating revenue for Montana schools.

Plaintiff environmental organizations asserted that the Service improperly issued the Permit for bull trout and grizzly bear because the HCP’s protections for these species do not meet the statutory requirements.  The court upheld the HCP and Permit for bull trout.  For grizzly bear, the court invalidated the Permit, finding the Service did not rationally support its finding that the impacts of the permitted activities on the bear would be minimized and mitigated to the maximum extent practicable.  

The Permit area covers over 500,000 acres within two of the four areas in which grizzly bear populations exist in the lower 48 states, the Northern Continental Divide and Cabinet-Yaak ecosystems. To accommodate the Department’s planned increase in logging activities, the HCP replaced protections prohibiting logging activities outside of the winter denning period over approximately 40,000 acres of designated grizzly bear “core areas” with an alternative program of quiet areas and spring management restrictions.  The Service recognized that the HCP’s proposed change would result in take of bears due to displacement of female bears from “key habitat” and would increase human-bear interactions, but reasoned that the take would be minimal based on the relatively small area (less than 2 percent) of grizzly bear core recovery zones that would be affected.  Overall, the Service concluded that the take of grizzly bears under the HCP would be fully mitigated and would result in a net benefit for the species.  

The issue before the court was whether the HCP’s protections of quiet areas and spring management restrictions satisfy the ESA’s mandate that, to issue a Permit, the Service must find that the HCP minimizes and mitigates the impacts of incidental take “to the maximum extent practicable.”  16 U.S.C. 1539(a)(2)(B)(ii).  Because neither the ESA nor the implementing regulations define “maximum extent practicable,” the court set forth the following principles to guide its analysis:  

(i) The statutory language of “maximum extent practicable” signifies that the HCP applicant may do something less than fully minimize and mitigate the impacts of the take where to do more would not be practicable.  

(ii)  The “maximum extent practicable” standard does not suggest that measures beyond that necessary to mitigate for the project’s effects of take of species are ever required.  

(iii)  Where the level of mitigation provided for in the HCP clearly compensates for the take that will occur, the Service is under no obligation to inquire whether additional mitigation is financially feasible.

A corollary to (iii), above, is that where there is a close call as to whether an HCP adequately mitigates for the project’s take, the Service is required to consider whether additional protective measures would be practicable.  The court found that the HCP record did not contain evidence sufficient to show that the HCP’s program of quiet areas and spring management restrictions offered equivalent protections for grizzly bears as compared to the original core area designations, much less an improvement in conditions – in other words, a close call.  
 
The court held that absent a rational connection between the facts (HCP’s grizzly bear conservation strategy may not improve the bears’ conditions and will increase take of bears) and the Service’s conclusion (HCP completely offsets the impacts of increased logging and road building to grizzly bear), the Service’s finding that the HCP mitigates take of grizzly bears to the maximum extent practicable was arbitrary and capricious. 
 
Upon remand, the Service may choose to take the court’s advice – that the HCP’s grizzly bear conservation strategy’s ability to offset the project’s impacts is a close call – and investigate whether additional mitigation measures to reduce project impacts to the bear would be practicable. 

 

ABA Endangered Species Committee Releases Newsletter

The Endangered Species Committee within the American Bar Association's Section on Environment, Energy, and Resources recently released its periodic Endangered Species Committee Newsletter (pdf).  The newsletter includes articles regarding efforts to address climate change impacts on listed species through assessment of impacts of carbon dioxide versus mercury emissions, the implications of comprehensive listing deadline settlements, the expanding reach of the ESA, and the intersection between mountaintop mining and the ESA.

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and Wildlife Service, No. 13-234c and 13-413 (Aug. 22, 2014).  

Before finalizing the critical habitat designation, the Service had analyzed the potential economic impacts of the designation on the private property, analyzing three scenarios:  (1) development without the need for a federal permit or approval; (2) partial development because the necessary federal permit or approval would require conservation of 60% of the property; and (3) no development because the necessary federal permit or approval could not be granted in light of impacts to the designated critical habitat.  The Service estimated that the economic impact under the second and third scenarios would be a loss of $20.4 million and $33.9 million, respectively.  In the final rule designating the critical habitat, the Service stated that because it "did not identify any disproportionate costs that are likely to result from the designation[,] the Secretary [did] not exercis[e] his discretion to exclude any areas from this designation of critical habitat for the dusky gopher frog based on economic impacts."  

After dismissing a challenge to plaintiffs' standing, the court explained that under the Endangered Species Act (ESA), both occupied and unoccupied property may be designated as critical habitat.  Thus, the mere fact that the frog was not currently occupying the private property was not determinative.  The court also explained, however, that in order for the Service to designate an area that is not occupied by the species, in addition to considering the economic impact of the designation, the Service must find, based on the best scientific data available, that the designation is "essential for the conservation of the species" and "a designation limited to [the] present range [of the species] would be inadequate to ensure the conservation of the species."

As every independent peer reviewer of the proposed rule concluded that limiting the critical habitat designation to occupied and unoccupied areas in Mississippi would be inadequate to "conserve" the frog, and as the land located in Louisiana contained ephemeral ponds that could play a key role in the future breeding success of the frog, the court found that the Service's "determination seems reasonable and, therefore, entitled to Chevron deference."  Turning to the issue of economic impacts, which the court described as "the most compelling issue advanced by plaintiffs in challenging the validity of the Rule," the court concluded that in light of the "somewhat paralyzing standard of review," it had to defer "to the agency's expertise in its methods for cost projections and its refusal to except [the property] from the designation."      

While the court's ruling was based primarily on the deference accorded the Service under the ESA and the Administrative Procedure Act, it was certainly not without its fireworks.  For example, in one portion of the opinion the court described defendants' attack on standing grounds as "utterly frivolous."  The court also stated, summarizing its view of the issues and the law:  "The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions."  

While plaintiffs did not prevail in the district court, this dispute is far from over.  First, as the court pointed out, plaintiffs did not allege in their complaint that the designation constitutes an unconstitutional taking under the Fifth Amendment.  Such a claim could still be presented to the Court of Federal Claims.  Second, a notice of appeal was filed just four days after the decision was issued.

 

   

U.S. Fish and Wildlife Service Declines to List Missouri River Trout Population

On August 20, 2014, the U.S. Fish and Wildlife Service (Service) declined to list (pdf) the Upper Missouri River Distinct Population Segment of the Arctic Grayling (Thymallus arcticus) as threatened or endangered under the Endangered Species Act.

According to the Service, ongoing conservation efforts initiated by private landowners and federal and state officials have worked to improve conditions for the species. These voluntary programs, including irrigation flow reductions and fish ladders, have improved habitat quality for the trout. The Service estimates that these efforts have resulted in doubling the species' population since 2006.

The Service’s Director Dan Ashe noted that the conservation progress for the Arctic grayling shows how effective voluntary conservation agreements can be, including with respect to helping both wildlife and ranching interests.

The Service’s decision concludes the 12-month review of the species, which began last November.
 

Tags:

Court Allows ESA Claims Involving Oversight of Pesticides to Move Forward

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293-JCS (pdf), plaintiffs alleged that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act by failing to initiate and reinitiate consultation with the National Marine Fisheries and U.S. Fish and Wildlife Service with respect to its ongoing oversight of 382 active pesticide ingredients.

As previously reported, the United States District Court for the Northern District of California granted EPA’s motions to dismiss for failure to state an affirmative “agency action” that would trigger section 7. The court allowed plaintiffs to amend their complaint to provide a comprehensive list of every affirmative act that allegedly required the duty to consult.

In their amended complaint, plaintiffs asserted among other things that EPA’s reregistration of pesticides constitutes an agency action. EPA moved to dismiss, and the court granted in part and denied in the part the motion. The court dismissed certain claims for lack of subject matter jurisdiction due to statute of limitation issues, and denied the motion to dismiss with respect to other claims, holding reregistration and ongoing discretionary control over certain pesticides was sufficient to constitute agency action under section 7.
 

California District Court Dismisses ESA Section 7 Case for Failure to Allege that Agency Action Took Place on the "High Seas"

On August 12, a judge for the Northern District of California granted (pdf) a motion to dismiss claims alleging that a federal agency violated section 7 of the Endangered Species Act (ESA) by failing to consult with federal wildlife agencies concerning the potential effects of its actions on listed species in the Great Barrier Reef.

The case concerned $4.8 billion in funding for the construction of two liquefied natural gas projects 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, 2014 U.S. Dist. LEXIS 111762 (N.D. Cal. Aug. 12, 2014). The funding came from the Export-Import Bank of the United States (Bank), a federal agency. The proposed projects would include the drilling of gas wells, installation of pipeline, and exportation of gas worldwide. Plaintiffs alleged that the Bank was required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) under section 7 of the ESA to determine whether the projects would have adverse effects on threatened or endangered species or their habitat. Facilities for both natural gas projects would be located within designated habitat for the endangered dugong (Dugong dugon) and within habitat supporting the threatened green sea turtle (Chelonia mydas), endangered loggerhead sea turtle (Caretta caretta), and threatened saltwater crocodile (Crocodylus porosus).

Section 7 requires that a federal agency consult with the Services over whether an action authorized or funded by that agency may affect a listed species. However, the consultation requirement only applies to agency actions that occur in the United States or “upon the high seas.” Although plaintiffs argued that the projects funded by the Bank would occur on the high seas, the District Court dismissed this argument because plaintiffs had not alleged any facts in their complaint showing that the projects would occur on the high seas. The court granted leave to plaintiffs to amend their complaint to allege additional facts.

Plaintiffs also directly challenged the regulation limiting section 7 to the United States and the “high seas,” asserting that the ESA does not limit the geographic scope of the consultation requirement. The court rejected this argument, noting that the statute of limitations to challenge agency regulations is six years and that plaintiffs had not petitioned the Services to amend the regulation.

U.S. Fish and Wildlife Service Withdraws Proposal to List North American Wolverine as Threatened

 The U.S. Fish and Wildlife Service (Service) announced today that it is withdrawing its proposal to list the North American wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act (ESA). The decision to withdraw the listing proposal followed the consensus recommendation of the Service’s three Regional Directors for the regions encompassing the wolverine’s known range in the contiguous United States – the Mountain Prairie, Pacific Northwest, and Pacific Southwest regions.

As we previously reported, the Regional Director of the Service’s Mountain Prairie region previously ordered the reversal of a recommendation to list the wolverine after concerns were raised about the reliability of data used for predicting impacts to the species as a result of climate change. That order reversed a previous recommendation to list the wolverine following issuance of a report by a panel of biologists in April 2014.

Ultimately, the Service found that climate change models are unable to reliably predict snowfall amounts and snow-cover persistence in wolverine denning locations, and evidence suggested that wolverine populations actually increased in the second half of the 20th century. The Service determined that the effects of climate change are not likely to place the species in danger of extinction now or in the foreseeable future, and thus the wolverine did not meet the ESA’s definition of a “threatened species.”

Recent Ninth Circuit ESA Decision May Be Headed to the U.S. Supreme Court.

On July 14, Glenn-Colusa Irrigation District (GCID) filed a petition for writ of certiorari (pdf) with the U.S. Supreme Court, seeking review of the Ninth Circuit’s decision in Glenn-Colusa Irrigation District v. Natural Resources Defense Council, 749 F.3d 776 (9th Cir. 2014). In an en banc decision, the Ninth Circuit found that a U.S. Bureau of Reclamation (Reclamation) action renewing settlement contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). The Ninth Circuit’s decision rested on its interpretation of the settlement contracts which, according to the Court, “did not strip” Reclamation of its discretion to act to benefit the delta smelt and its designated critical habitat. Concluding that Reclamation can choose not to renew the contracts and, alternatively, otherwise condition the contracts to benefit the delta smelt, the Court held that Reclamation had the requisite discretion for ESA consultation.

GCID’s petition argues that the Ninth Circuit’s decision merits U.S. Supreme Court review because it contradicts the U.S. Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Home Builders) and is at odds with the D.C. Circuit’s decision in Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Commission, 962 F.2d 27 (D.C. Cir. 1992) (Platte River).

In Home Builders, the Supreme Court held that section 7(a)(2) applies only to discretionary agency actions. GCID argues that the Ninth’s Circuit decision is contrary to Home Builders because Reclamation is directed under federal and state law to renew the settlement contracts and, therefore, lacks the requisite discretion under the ESA.

In Platte River, the D.C. Circuit held that a federal agency lacks ESA discretion where it is not unilaterally authorized to amend the terms of a license. GCID argues that Platte River is analogous to Reclamation’s action to bilaterally renegotiate settlement contracts with Central Valley Project contractors.

Responses to the petition are due on August 15, 2014.
 

Forest Service Agrees to Initiate Consultation regarding Fuels Reduction Project at Upper Echo Lake south of Lake Tahoe and Halt Activity Pending Consultation

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo Lake Hazardous Fuel Reduction Project in 2012 and began to implement the Project in fall 2013 over the objections of conservation biologist Dr. Dennis Murphy.  On behalf of Dr. Murphy, Nossaman filed an action challenging the Project in the United States District Court for the Eastern District of California.  In October and November 2013, the Forest Service implemented the first phase of the Project, cutting trees and brush and creating slash piles consisting of the cut materials.

The agency invoked a categorical exclusion to avoid conducting environmental review of the Project under the National Environmental Policy Act, and until recently refused to evaluate the effects of the Project on the Sierra Nevada yellow-legged frog as required by the Endangered Species Act.  Information regarding the deleterious impacts of the Project is available here

U.S. Fish and Wildlife Service Lists Two Texas Minnows, Acknowledges Impacts to Water Management Likely

On August 4, 2014, the U.S. Fish and Wildlife Service (Service) announced its decision to list two small Texas minnows -- the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula) -- as endangered under the Endangered Species Act (ESA).  The two Texas minnows, which have been candidates species since 2002, measure less than 2 inches and have a life span of less than three years.  According to the announcement issued by the Service, the "two primary  factors affecting the status of the shiners are river fragmentation and alterations of the natural stream flow regime (caused by dams, groundwater withdrawal, saltcedar encroachment and drought)."  In a FAQ issued with the announcement, the Service acknowledges that as a result of the listing there will likely be impacts to water management in the area.  

In addition to listing the two minnows, the Service also announced the designation of approximately 623 miles of critical habitat in the Upper Brazos River Basin and the upland areas.  The FAQ issued with the announcement also states that the Service expects that the impacts from the critical habitat designation will be less than $84,000 per year.  

The final rule will become effective 30 days after publication.

View Previous Posts