Rusty Patched Bumble Bee Joins List of Endangered Species Despite Delay

On January 11, 2017, the U.S. Fish and Wildlife Service (Service) published a final rule listing the rusty patched bumble bee (Bombus affinis) as endangered under the Endangered Species Act (ESA).  The rusty patched bumble bee’s historic range encompassed areas of 28 states and the District of Columbia (Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin).  Since 2000, the species has been reported in only 12 states (Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Tennessee, Ohio, Pennsylvania, Virginia, and Wisconsin) and is now believed to occur in only eight percent of its historic range.  Service-identified stressors to the rusty patched bumble bee include pathogens, pesticides and herbicides (including neonicotinoids), habitat loss and degradation, small population dynamics, and climate change.

The effective date of the final rule was pushed back from February 10, 2017 to March 21, 2017 as a result of the January 20, 2017 White House Memorandum that delayed the effective dates of final rules that had not yet taken effect by 60 days from the date of the memorandum “in order to ensure that the President’s appointees or designees have the opportunity to review any new or pending regulations.”

As a result of the administration’s subsequent silence on this rule, the rule went into effect on March 21, 2017, adding the rusty patched bumble bee to the list of endangered species.  This species is the first ESA-listed pollinator in the continental U.S., and its listing under the ESA is anticipated to impact a number of industries.

Texas Federal Court Grants Preliminary Injunction Based On Sea Turtle Concerns

On March 13, 2017, the U.S. District Court for the Southern District of Texas granted a preliminary injunction relying primarily on Endangered Species Act (ESA) claims, halting operation of a mooring project on the Lydia Ann Channel near Corpus Christi, Texas. Friends of Lydia Ann Channel U.S. Army Corps of Engineers v. Lydia Ann Channel Moorings, LLC, No. 2:15-CV-0514, (S.D. Tex. Mar. 13, 2017).  The Friends of Lydia Ann Channel (Plaintiff) filed the lawsuit against the U.S. Army Corps of Engineers (USACE) seeking injunctive and declaratory relief for violations of the ESA and the National Environmental Policy Act (NEPA).   The court allowed Lydia Ann Channel Moorings, LLC (LACM), the mooring project owners, to intervene.

Pursuant to its authority under the Clean Water Act and associated regulations, USACE issued a Letter of Permission (LOP) authorizing the construction of the mooring project.  LOPs are an abbreviated processing procedure for activities that are “minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.”  33 C.F.R. § 325.2(e)(1)(i).  The LOP acknowledged the presence of several endangered or threatened species within the Lydia Ann Channel (including, whooping cranes, piping plovers, West Indian manatees, several species of sea turtles, among others), but concluded that the project would have minimal impact on these species and their critical habitat.  The administrative record did not contain any documentation that USACE received or reviewed any studies on the potential impacts of the mooring project to the endangered or threatened species.

USACE suspended and eventually revoked LACM’s LOP after discovering that LACM failed to comply with the terms of the LOP and that LACM’s stated purpose and need differed from what had been provided to USACE.  USACE then conducted an analysis to evaluate potential removal and restoration plans for the mooring project.   Operation of the mooring project continued while USACE analyzed its potential removal.

In determining whether a preliminary injunction was warranted, the court reviewed whether the Plaintiff had met the Fifth Circuit’s four-part test for preliminary injunction: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law, (3) the threatened injury outweighs the threatened harm to the defendant; and (4) an injunction will not disserve the public interest.  Focusing on only the ESA claims, the court found that the Plaintiff had met its burden and that there was a high probability of direct take of endangered Green Sea Turtles (Chelonia mydas) and Kemp’s Ridley Sea Turtles (Lepidochelys kempii) as a result of the continued operation of the mooring project.  The court’s conclusion with respect to the turtles relied on expert testimony stating that sea turtles are attracted to the area due to algae growing on the mooring structures, and that when temperatures in the Lydia Ann Channel dropped below 40 degrees, the turtles would be “cold stunned” and likely unable to react in time to avoid barge traffic using the mooring project.  Accordingly, the court enjoined any further operation of the mooring project and stayed the litigation until USACE completes its review of removal and restoration plans.

D.C. Circuit Reinstates Gray Wolf Delisting in Wyoming

On March 3, 2017, the U.S. Court of Appeals for the District of Columbia Circuit upheld a final rule delisting the gray wolf in Wyoming under the Endangered Species Act (ESA). Defenders of Wildlife v. Zinke, No. 14-5300 (D.C. Cir. Mar. 3, 2017).  This decision is the most recent in a series of court rulings and U.S. Fish and Wildlife Service (Service) actions that followed the Service’s initial 2011 proposal to delist the gray wolf in Wyoming based on the recovery of the Northern Rocky Mountain gray wolf population and the State of Wyoming’s conservation management plan for the wolf.

The D.C. Circuit reversed the district court’s vacatur of the rule delisting the gray wolf in Wyoming, instead concluding that the Service adequately and reasonably evaluated the state regulatory mechanisms in place to conserve the species. Central to this case was the question of whether existing regulatory mechanisms, in order to be “adequate,” must be binding.  The D.C. Circuit concluded, consistent with a number of judicial decisions in recent years, that “existing regulatory mechanisms” do not need to be binding to support a conclusion that a species does not warrant listing under the ESA.  Thus, the issue before the Court was whether the rulemaking record demonstrated that the Service exercised its judgment in a reasonable way in concluding that Wyoming’s management plan will adequately protect Wyoming’s gray wolf population after delisting.

The Court deferred to the Service’s expertise in determining that the state management plan is a reliable indicator of how Wyoming plans to implement its statutes and regulations, including that the State would not manage the species down to its minimum population level (at least 10 breeding pairs and at least 100 individuals) and would continue to maintain a buffer above that minimum. The Court held that the Service reasonably concluded that Wyoming’s efforts, as set forth in its management plan, were sufficiently certain to be implemented based on the strength of the State’s incentives to manage wolf populations so as to avoid relisting.

Senate Confirms Secretary of the Interior Ryan Zinke

On March 1, 2017, the Senate confirmed Rep. Ryan Zinke (R-Mont.) as Secretary of the Interior in a 68-31 bipartisan vote.  He was sworn into the Cabinet later that day by Vice President Mike Pence.  Zinke was able to attract 16 Democratic votes, with Sen. Ron Wyden (D-Or.) stating that he believes Zinke “will focus on doing his job, which includes protecting our special places and managing the forests already within the Interior Department’s control, instead of engaging in senseless reorganization of bureaucracies.”  Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) stated that she was “hopeful” that Zinke’s confirmation “will mark the start of a new era for the Department of the Interior that is defined by greater cooperation with Congress, the states, and the local residents affected by its decisions.”

Zinke, a former Navy SEAL, has already laid out his three main priorities as Secretary:  (1) address the National Park Service’s $12.5 billion deferred maintenance backlog; (2) increase employee morale and ensure that employees have the proper tools, resources, and flexibility to do their jobs; and (3) ensure that tribal sovereignty “mean[s] something.”  Zinke has also indicated that he is opposed to selling off federal lands, stating:  “I have absolutely and unequivocally opposed any attempts to transfer, sell, or privatize our public lands, and serving as their top steward is not a job I take lightly …. I approach this job in the same way that Boy Scouts taught me so long ago: leave the campsite in better condition than I found it.”

It also appears that Zinke is committed to upholding Federal ethics rules, writing in an email to Interior employees that “our understanding and observance of Federal ethics rules are essential to maintaining [the public’s] trust and carrying out our mission.”

At the invitation of the National Park Service’s Park Police, Zinke arrived to his first day of work riding an Irish sport horse named Tonto.  Zinke changed into a suit and tie before attending his first meeting. 

California Supreme Court Orders Court of Appeal to Consider Merits of CESA Decision on Coho Salmon

On February 27, 2017, the California Supreme Court reversed a Court of Appeal decision dismissing a petition for writ of mandate regarding the California Fish and Game Commission’s (Commission) rejection of a petition to delist the population of coho salmon (Oncorhynchus kisutch) south of San Francisco under the California Endangered Species Act (CESA).  Central Coast Forest Assoc. v. Fish and Game Comm’n, Case No. S208181, 2017 Cal. LEXIS 1540 (Cal. Feb. 27, 2017).  The California Supreme Court held that the Court of Appeal erred by failing to consider the merits of the Commission’s action, and by ruling on an improper procedural ground.

Under CESA, the Commission may examine the listing status of a species either on the petition of an interested individual, by the Commission’s own motion, and on a regular basis to assess whether listing is still warranted.  The Commission first listed coho populations below San Francisco as threatened in 1995, and then listed coho north of Punta Gorda as threatened, and coho between the San Francisco Bay and Punta Gorda as endangered in 2002.  Plaintiffs filed a petition in 2004 asking the Commission to redefine the southern boundary of the Central California coho population, effectively de-listing coho south of San Francisco, on the basis that the Commission’s decision to list the population south of San Francisco as endangered failed to meet the legal standard for listing.  The Commission adopted final regulations listing the southern population of coho as endangered in 2004.  In 2005, the Commission voted to reject plaintiffs’ petition.  On reconsideration, the Commission again decided to reject the petition in 2007.  Plaintiffs sought Superior Court review of the Commission’s 2007 decision, and the Superior Court directed the Commission to set aside its decision, and to undertake further review of plaintiffs’ delisting petition.  The Commission timely appealed.

On appeal, the Court of Appeal for the Third Appellate District reversed the Superior Court’s decision without reaching the merits of the case, concluding that the petition was a procedurally improper means of challenging the Commission’s 1995 and 2004 listing decisions.  On appeal, the California Supreme Court held that the Court of Appeal erred.  Specifically, the Supreme Court noted that CESA allows a delisting petition to challenge, based on new evidence, an earlier listing decision.  Because the Court of Appeal erred on procedural grounds, the Supreme Court remanded the case to the Court of Appeal to consider three specific questions: (1) whether the term “native species” refers to a listed species that is native to the geographic area in which it is listed or to a species that is native to California; (2) whether the term “range” refers to a species’ historic or present-day range; and (3) under what circumstances does CESA permit the Commission to delist only a portion of a listed species.

Ninth Circuit Rules Injury from Future Water Rights Restrictions Too Speculative for Article III Standing

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, “Water Contractors”) lacked Article III standing to pursue an Endangered Species Act (“ESA”) claim against the U.S. Department of the Interior and U.S. Bureau of Reclamation (collectively, the “Federal Defendants”) in connection with the Federal Defendants’ water flow augmentation for the Lewiston Dam.  San Luis & Delta-Mendota Water Authority v. Haugrud, Case Nos. 14-17493, 14-17506, 14-17515, and 14-17539.

The Water Contractors alleged that the Federal Defendants failed to conduct formal consultation under ESA section 7 for their 2013 release of Trinity River water from the Lewiston Dam in an amount that exceeded the designated applicable water release schedule for the dam, thereby causing economic injury to the Water Contractors and their members.  In particular, the Water Contractors alleged that the Federal Defendants’ action would cause the imposition of more stringent regulations on the operations of the Central Valley Project, restricting water deliveries to their members and adversely impacting the agricultural industry, in the event that the reduction of cold water storage resulted in insufficient flows and adversely impacted winter run and spring run salmon egg incubation.

The Court declined to find that the Water Contractors had standing to pursue their ESA claim, holding that the alleged injuries were speculative and not traceable to the Federal Defendants.

The Court did not reach the question of whether economic injury is an interest that is protected under ESA section 7.

Fifth Circuit Issues Contentious Dissent Over Designation of Louisiana Land

On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical habitat for the endangered dusky gopher frog (Rana sevosa), even though the frog did not inhabit the land and significant alterations would be required before the land could even be considered habitable.  Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016).  (For a further discussion of the panel decision, see our prior E-Alert.)

On February 13, 2017, by a vote of eight to six, the Fifth Circuit denied a petition for rehearing en banc.  In response to the denial, Judge Edith Jones, a Ronald Reagan appointee, drafted a 32-page dissent that was joined by the other five Circuit Judges that voted in favor of rehearing.  In addition to walking through the legal and policy arguments in favor of rehearing, the dissent made a number of not-so-subtle jabs at the other members of the court.  For example, the dissent begins with the following:

“The protagonist in this Endangered Species Act (ESA) case–the dusky gopher frog–is rumored to ‘play dead,’ ‘cover its eyes,’ ‘peak [sic] at you[,] and then pretend to be dead again.’ . . .  The panel majority regrettably followed the same strategy in judicial review–play dead, cover their eyes, peek, and play dead again.  Even more regrettably, the court refused to rehear this decision en banc.”

With a petition for writ of certiorari likely on the horizon, one can only guess as to whether such a dissent increases or decreases the likelihood of Supreme Court review.


Endangered Species Act Case Roundup

Two noteworthy cases have recently been issued by the Ninth Circuit Court of Appeals and the U.S. District Court for the Northern District of California.  The two cases address: (1) the interplay between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) and (2) the use of the deliberative process privilege to withhold potential administrative record documents in ESA litigation.

In Center for Biological Diversity v. U. S. Environmental Protection Agency, 2017 U.S. App. LEXIS 1826 (9th Cir. Feb. 2, 2017), the Ninth Circuit reversed in part a district court’s dismissal of plaintiffs’ claims arising from their citizen suit alleging that the U.S. Environmental Protection Agency (EPA) violated the ESA when it registered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (collectively, the Service).  Specifically, plaintiffs argued that reregistering pesticide products pursuant to FIFRA triggered EPA’s duty to consult with the Service under ESA section 7.

The Ninth Circuit affirmed the district court’s decision in large part, including with respect to the following:

  • The claims identifying EPA’s issuance of Reregistration Eligibility Decisions (RED) as an agency action were either time-barred by the general six-year statute of limitations or jurisdictionally barred because an ESA section 7 claim raised after EPA took public notice and comment must comply with the jurisdictional provisions of FIFRA. FIFRA requires that a petition for review be made in the court of appeals within 60 days of the entry of the contested final order.
  • EPA’s continued discretionary control of the pesticide’s registration did not constitute final agency action because plaintiffs failed to identify an affirmative agency action that would trigger the need for consultation.
  • EPA’s completion of pesticide reregistration for a specific active ingredient was simply a fact, not an affirmative agency action, and therefore could not trigger ESA section 7 consultation.

The Ninth Circuit reversed the district court with respect to claims regarding EPA’s approval of individual pesticide products.  The Ninth Circuit agreed with the district court that the approval of individual pesticide products was an affirmative agency action, but reversed the district court’s holding that the claims were barred by the collateral attack doctrine.  The Ninth Circuit held that the issuance of REDs was distinct from the approval of individual products under FIFRA, and the approval of individual products was based on new information not considered in issuing REDs.

In Desert Survivors v. U.S. Department of the Interior, 2017 U.S. Dist. LEXIS 16536 (N.D. Cal. Feb. 6, 2017), the Northern District of California addressed whether the deliberative process privilege properly applies to documents withheld in actions subject to review under the Administrative Procedure Act (APA).  Plaintiffs argued that the Service’s withholding of 55 documents containing regional office comments on the Service’s “Final Policy on Interpretation of the Phrase ‘Significant Portion of its Range’ in the Endangered Species Act” was improper because, in reviewing an agency action under the APA, courts must “review the whole record,” which includes “everything that was before the agency pertaining to the merits of its decision.”  The district court disagreed, holding that, as a general matter, the deliberative process privilege applies to actions under the APA, including ESA actions.  Thus, the balancing test set forth in F.T.C. v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984) governs the question of whether the documents are protected under the deliberative process privilege.  That balancing test examines whether the party’s need for the withheld materials to allow for accurate fact-finding outweighs the government’s interest in non-disclosure.  The court did not reach the ultimate issue of whether the privilege applied to the documents the Service withheld.  Rather, the court directed the Service to provide an updated privilege log describing the documents in greater detail and to file all the documents under seal so that plaintiffs could select a sample of documents for in camera review.

President Trump Announces Supreme Court Nominee

On January 31, 2017, President Trump announced Judge Neil M. Gorsuch as his nominee to fill the ninth seat of the United States Supreme Court, left vacant since Justice Antonin Scalia’s passing in February 2016.  Judge Gorsuch currently sits as a judge on the United States Court of Appeals for the Tenth Circuit.  President George W. Bush nominated Gorsuch to his current Tenth Circuit seat in 2006.  Early in his legal career, Judge Gorsuch clerked for Supreme Court Justices Byron R. White and Anthony M. Kennedy.  Many predict that Gorsuch will follow in the footsteps of the late Justice Scalia; like Justice Scalia before him, Judge Gorsuch favors strict construction of the Constitution and statutes.  Notably, in 2016, Gorsuch wrote a concurring opinion in Gutierrez-Brizuela v. Lynch, criticizing the long-standing Chevron doctrine, which provides for deference to agency regulations where statutes are ambiguous.  While Gutierrez-Brizuela focused on immigration law, the Chevron doctrine has played a significant role in challenges against environmental regulations, such as those associated with the Endangered Species Act.   Should Gorsuch be confirmed and ultimately play a role in upending the Chevron doctrine, it could have a potentially tremendous impact on the regulated community.