The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA). However, things appeared to be changing in 2013, when, after denying a number of prior listing petitions at various stages of the process, the U.S. Fish and Wildlife Service (Service) announced its proposal to list the wolverine as a threatened species under the ESA, citing anticipated habitat loss due to climate change. (See our February 3, 2013 post for a summary of this history.) While this put the wolverine squarely on the path to ESA listing, approximately 18 months later, the Regional Director for the Service directed federal biologists to withdraw the proposed rule. (See our July 7, 2014 post and August 12, 2014 post for a further discussion of the Regional Director’s justification.) An environmental group challenged this abrupt change in course, and on April 4, 2016, the U.S. District Court for the District of Montana vacated the Service’s withdrawal of the rule, concluding that the decision was not based on the best available science. (See our April 7, 2016 post for a discussion of the court’s decision.) On October 18, 2016, consistent with the direction from the court, the Service issued a notice that it was reopening the comment period on the February 4, 2013 proposed rule to list the distinct population segment of wolverine occurring in the contiguous United States as threatened. Thus, after more than three years, the wolverine again appears to be on the path to ESA protection.
On October 11, 2016, the U.S. Supreme Court denied the U.S. Forest Service’s (“Forest Service”) petition for writ of certiorari to review the U.S. Court of Appeal for the Ninth Circuit’s decision in Cottonwood Environmental Law Center v. Forest Service, 789 F.3d 1075 (9th Cir. 2015). The key issues in the case related to standing, the justiciability of programmatic planning documents, and whether section 7 of the Endangered Species Act (“ESA”) may require a federal agency to reinitiate consultation with the U.S. Fish and Wildlife Service (“USFWS”) even after the agency has taken a final agency planning action.
The U.S. Supreme Court’s decision to decline review leaves in place the Ninth Circuit’s holdings that: (1) Article III standing to challenge a procedural violation with regard to an agency planning decision does not require demonstration of imminent injury from a specific development project; (2) an agency’s procedural failure to undertake section 7 consultation for a planning decision is ripe for judicial review; and (3) the obligation to consult with the USFWS under section 7 continues in effect even after the federal agency has taken final agency action on a plan or program and there is ongoing discretionary federal involvement or control over the listed species.
The dispute in Cottonwood Environmental Law Center v. Forest Service concerned the Forest Service’s decision not to reinitiate section 7 consultation for an adopted land management and conservation and recovery plan for the threatened Canada lynx (Lynx canadensis) after the USFWS designated National Forest land in the Northern Rocky Mountains as Canada lynx critical habitat.
On the same day, the U.S. Supreme Court declined to review a case involving critical habitat for the green sturgeon, Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Commerce, 792 F.3d 1027 (9th Cir. 2015), as well as a federal court ruling upholding the Forest Service’s 2012 Colorado roadless rule, Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016).
On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).
The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA. According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively isolated population with limited genetic exchange and restricted dispersal potential, which makes it vulnerable to the impacts of climate change and sea level rise. 81 Fed. Reg. 68,985 (Oct. 5, 2016) (pdf). The Miami tiger beetle occurs only in Miami-Dade County, and was thought to be extinct until 2007, when a population was discovered at the Richmond Heights area of South Miami, known as the Richmond Pine Rocklands. It is considered to be one of two tiger beetles in the United States that is most in danger of extinction. The Service declined to designate critical habitat at this time, but anticipates designating critical habitat before the end of the 2017 fiscal year.
The Service also listed the Kentucky arrow darter (Etheostoma spilotum), a small fish from the upper Kentucky River Basin, as threatened and adopted an ESA section 4(d) rule for the species. 81 Fed. Reg. 68,963 (Oct. 5, 2016) (pdf). The Service’s decision to list the darter is based in part on destruction, loss, and modification of its habitat, the inadequacy of existing regulatory mechanisms, and other man-made influences. ESA section 4(d) allows the Service to exempt certain activities affecting a listed species that would otherwise be prohibited under the ESA. Here, the Service chose to exempt several habitat restoration and bank stabilization projects that are currently planned or under construction because, although the projects may cause some incidental take, the habitat restoration associated with these projects is important for the recovery of the species. The Service notes that, if carried out in accordance with existing regulations and permit requirements, the following activities are not expected to result in take of the darter: agricultural and silvicultural practices, and surface coal mining and reclamation activities.
Concurrently with the rule listing the Kentucky arrow darter, the Service published a rule designating critical habitat for the species. 81 Fed. Reg. 69,312 (Oct. 5, 2016) (pdf). Included in the darter’s designated critical habitat are 398 stream kilometers in Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe Counties, Kentucky. The Service noted in its critical habitat designation that the darter’s range has been reduced from the historically occupied 74 streams to only 47 currently occupied streams. The 398 designated stream kilometers were split into 38 units, all of which are considered occupied, and which comprise the entire known range of the darter.
On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process. According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness of the petition process to support species conservation. The final rule, which revises 50 CFR 424.14, also clarifies the procedures by which the Agencies will evaluate petitions under section 4(b)(3) of the ESA, which establishes deadlines and standards for making findings on listings and delisting petitions for species.
The revised regulations require a petitioner to provide a complete, balanced presentation of facts pertaining to the petitioned species, including any information the petitioner is aware of that contradicts the petition’s claims. The intent is to encourage petitioners to avoid presenting only information that supports their claims. This same standard regarding evidence applies to critical habitat petitions. The Agencies’ revisions emphasize that the burden of proving the merits of a petition rests with petitioners and, though it is not the Agencies responsibility to resort to independent information to fill in gaps in petitions, the Agencies can look to outside information if required. Finally, the revisions altered some of the procedural requirements for filing petitions and eliminated the requirement that the Agencies respond to petitions within 30 days.
The Agencies published their proposed rule on May 21, 2015. They received 347 comments in total and, after considering the issues raised, revised the proposed rule and reopened a 30-day comment period on April 21, 2016. This final rule is the culmination of the process. The Agencies’ aim is for these revisions to improve the quality of petitions through clarified content requirements and guidelines, which they assert will better focus the Agencies’ resources on petitions that merit further analysis.
On September 15, 2016, the U.S. Fish and Wildlife Service (USFWS) proposed to list as threatened the San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a plant species native to Southern California, under the Endangered Species Act. The proposal is one of dozens under a settlement reached in litigation challenging USFWS’s failure to propose listing or determine that listing is not warranted for 251 candidate species. The proposed rule to list the plant species as threatened ends over 16 years on USFWS’s candidate list; it was listed as endangered under the California Endangered Species Act in 2001.
According to the Federal Register notice, USFWS is accepting public comments on the proposed listing through November 14, 2016.
The San Fernando Valley spineflower is an annual species in the buckwheat (Polygonaceae) family. The spineflower was believed to be extinct since 1929 when it was rediscovered in southeastern Ventura County on the then-proposed Ahmanson Ranch development in 1999. A second population was discovered a year later in northwestern Los Angeles County in the Newhall Ranch development. The Ahmanson Ranch development did not go forward and the property was acquired by the Santa Monica Mountains Conservancy for open space and recreation. The Newhall Ranch development has prepared a spineflower conservation plan proposing to preserve and manage over 75 percent of the spineflower population on the project site. No other populations of spineflower are known.
The proposed rule cites habitat degradation, non-native, invasive plant and animal species, and potentially climate change as ongoing and future threats to the species. USFWS declined to designate critical habitat for the spineflower because information needed to evaluate the impacts of designation is not currently available. A determination on critical habitat is required within one year of the final listing decision.
On September 19, 2016, the National Marine Fisheries Service (NMFS) published proposed rules to list two species of dolphin and two species of guitarfish under the Endangered Species Act (ESA). NMFS proposes to list the Maui’s dolphin (Cephalorhynchus hectori maui) as endangered under the ESA and the South Island Hector’s dolphin (Cephalorhynchus hectori hectori), the common guitarfish (Rhinobatos rhinobatos) and the blackchin guitarfish (Rhinobatos cemiculus) as threatened under the ESA. Both subspecies of dolphin occur only in New Zealand. The two guitarfish species occur in the subtropical waters of the eastern Atlantic and Mediterranean. According to the Federal Register, the public comment periods for the proposed rules close on November 18, 2016.
On September 20, 2016, the U.S. Fish and Wildlife Service (FWS) published a proposed rule to list the ‘i’iwi (Drepani coccinea, also known as the “Hawaiian honeycreeper”) as threatened under the ESA. The ‘i’iwi is found primarily in closed canopy montane wet or montane mesic forests composed of tall stature ohia or ohia and koa tree mixed forest. The species is known to occur on the islands of Kauai, Maui, and Hawaii with populations in various states of decline. A few individual birds have been identified on the islands of Oahu and Molokai, and ‘i’iwi have been extirpated from the island of Lanai. According to the Federal Register, the public comment period for the proposed rule closes on November 21, 2016.
The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) have issued listing decisions on a number of species under the Endangered Species Act (ESA) in recent days, and USFWS has announced notable changes in its recovery strategy for the red wolf.
- On September 7, 2016, USFWS reopened the comment period for its proposed rule to remove the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis) from the list of threatened species. The initial proposed rule emphasized that the States of Montana, Wyoming, and Idaho needed to promulgate regulations managing human-caused mortality of grizzly bears before USFWS would proceed to a final rule, and such state mechanisms have recently been finalized.
- On September 7, 2016, NMFS issued a final rule identifying 14 distinct population segments (DPSs) of the humpback whale (Megaptera novaeangliae). Prior to this rulemaking, the species had been globally listed as endangered. In response to petitions filed by Hawaii Fishermen’s Alliance for Conservation and Tradition, Inc. and the State of Alaska, USFWS initiated a status review of the species. With this final rule, USFWS divides the humpback whale into 14 DPSs, removes the global endangered listing, and in its place lists four DPSs as endangered and one DPS as threatened. The remaining nine DPSs are determined to not warrant listing at this time.
- On September 9, 2016, USFWS proposed to list the Guadalupe fescue (Festuca ligulata)—a plant species from the Chihuahuan Desert of west Texas and Mexico—as an endangered species.
- On September 13, 2016, USFWS issued a final rule listing the white fringeless orchid (Platanthera integrilabia) as threatened. The species is found in Alabama, Georgia, Kentucky, Mississippi, South Carolina, and Tennessee.
- On September 12, 2016, USFWS announced significant changes to its red wolf (Canis rufus) recovery program, which has involved captive breeding and reintroduction of the species in eastern North Carolina as a non-essential experimental population. Following a two-year evaluation of the red wolf recovery program and consideration of new scientific information, USFWS has decided to: (1) secure the captive population of red wolves by doubling that population; (2) determine where potential new sites exist for introduction of additional experimental populations by October 2017; (3) revise the existing experimental population rule to apply to fewer packs within a more restricted range; and (4) complete a status review for the red wolf by October 2017.
In the last several days there has been a flurry of end-of-summer activity, with federal courts issuing a number of Endangered Species Act (ESA) decisions:
- On September 2, 2016, the U.S. District Court for the Northern District of California held that the U.S. Fish and Wildlife Service (FWS) and the California Department of Transportation (Caltrans) violated the ESA by failing to properly consider the impacts of widening Highway 1 on the threatened California red-legged frog (Rana draytonii) and the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia). Pacificans for a Scenic Coast v. California Dept. of Transp., No. 15-cv-02090. Among other things, the court held that Caltrans breached its procedural obligations under section 7 of the ESA by developing a biological assessment with a flawed project description, and FWS violated the ESA by issuing a biological opinion that improperly relied on vague and speculative mitigation measures.
- On September 2, 2016, the U.S. District Court for the District of Montana rejected a challenge to FWS’ determination that listing the Upper Missouri River distinct population segment of Arctic grayling (Thymallus arcticus montanus) under the ESA is not warranted at this time. Center for Biological Diversity v. Jewell, No. CV 15-4-BU-SEH. The court concluded that in declining to list the species, FWS relied on the best available science, considered all appropriate listing factors as mandated by the ESA, and made a reasonable decision that was entitled to deference.
- On August 31, 2016, the U.S. District Court for the District of Idaho held that the U.S. Forest Service did not violate the ESA when it approved the Lost Creek-Boulder Creek Restoration Project, a watershed improvement project in the Payette National Forest. Alliance for the Wild Rockies v. FWS, No. 1:15-cv-00193. Among other things, the court upheld the no-jeopardy biological opinion issued by FWS regarding the impacts of the proposed project on the threatened bull trout (Salvelinus confluentus).
- On August 31, 2016, the U.S. Court of Appeals for the Eleventh Circuit upheld FWS’ biological opinion relating to the impacts of proposed off-road vehicle trails in the Big Cypress National Preserve in Florida. Nat’l Parks Conservation Ass’n v. U.S. Dept. of the Interior, No. 14-15326. Among other things, the court held that FWS properly considered the impacts of the proposed project on the threatened eastern indigo snake (Drymarchon couperi) and endangered Florida panther (Puma concolor).
In addition, on September 2, 2016, FWS issued a draft ESA Compensatory Mitigation Policy. The policy is intended to implement other recent policies issued by the Executive Office and the Department of the Interior that shift from a project-by-project approach to a landscape-scale approach to planning and implementing compensatory mitigation. The policy is also intended to improve consistency in the use of compensatory mitigation as recommended or required under the ESA. According to the notice in the federal register, FWS will accept comments on the draft policy until October 17, 2016.
On August 25, 2016, the California Fish and Game Commission (Commission) voted unanimously to list the northern spotted owl (Strix occidentalis caurina) as a threatened species under the California Endangered Species Act. The owl is already listed as a threatened species under the Federal Endangered Species Act. The Commission’s action increased protections for the species by allowing for state and citizen enforcement actions through the California Department of Fish and Wildlife and the state courts.
In California, the northern spotted owl’s range extends south along the coast from the Oregon border to Marin County, and across the Klamath Mountains to the Cascade Range near the Pit River. According to the species status review prepared by the California Department of Fish and Wildlife, the primary threats to the continued existence of the northern spotted owl are the rapid expansion of the barred owl into the range of the spotted owl and a rapid and accelerating decline in northern spotted owl population size and habitat from wildfire and timber harvest. Additional threats include potential increases in the frequency and severity of wildfires, widespread occurrence of marijuana cultivation on public and private lands, changes in weather patterns, effects of climate change on wildfire patterns and forest vegetation distribution, and the spread of the non-native fungus-like pathogens.
The Environmental Protection Information Center filed its petition to list the owl as threatened or endangered in September 2012. The documentation provided to the Commission in advance of the hearing and a video of the proceeding may be accessed here.
Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding that because the federal approvals triggering the biological opinions were issued by the Federal Energy Regulatory Commission (FERC), the lawsuit had to be filed in the U.S. Court of Appeals in the first instance, not the district court. Maine Council of the Atlantic Salmon Fed’n v. NMFS, Case No. 2:15-cv-00261 (D. Maine Aug. 18, 2016).
Not surprisingly, the docket for most U.S. Court of Appeals is primarily comprised of appeals from district court decisions. However, as a result of federal legislation, there are some actions that skip the district court and head directly to the U.S. Court of Appeals. The Federal Power Act, which, among other things, authorizes FERC to issue licenses for hydroelectric projects, includes a provision vesting review of FERC decisions in the U.S. Court of Appeals.
Pursuant to the consultation requirement in section 7 of the ESA, FERC consulted with NMFS prior to amending the licenses for four hydroelectric projects in Maine. The projects were all located on the Kennebec River, which is home to the federally endangered Gulf of Maine Distinct Population Segment of Atlantic salmon. As a result of the consultation, NMFS issued two biological opinions. Shortly thereafter, four environmental groups filed a lawsuit in district court challenging the biological opinions and NMFS’ findings under the ESA and the Administrative Procedure Act.
The defendants moved to dismiss the lawsuit arguing, among other things, that the district court lacked jurisdiction over the dispute because under the Federal Power Act the lawsuit had to be filed in the U.S. Court of Appeals. In opposition to the motion, plaintiffs asserted that they were challenging NMFS’ failure to comply with the ESA and Administrative Procedure Act, and not FERC’s ultimate decision. The district court rejected this argument, finding parallels in a number of other decisions that concluded the Federal Power Act established exclusive jurisdiction in the U.S. Court of Appeals even if the challenge was based on a failure to comply with another federal statute. Accordingly, the district court concluded that it lacked subject matter jurisdiction and dismissed the action.