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Endangered Species Law and Policy

Major Changes Underway at the California Fish and Game Commission

Posted in Uncategorized

The California Fish and Game Commission (Commission) is in the midst of major changes.  The Commission, which was established in 1870, has been led by a body of five commissioners since 1937.  The Commission has a small staff to support its activities, which include listing and delisting threatened and endangered species under the California Endangered Species Act, establishing hunting and fishing regulations, establishing protected lands and waters, and considering appeal hearings for revocation or suspension of licenses and permits.

At its February 2016 meetings, the Commission appointed a new President, Commissioner Erik Sklar, and a new Vice President, Commissioner Jacque Hostler-Carmesin.  The action followed a number of recent departures from the Commission.  In December 2015, the President of the Commission – Jack Bayliss – resigned his post.  That same month, the Executive Director, who leads the Commission’s staff, stepped down.  Then in January 2016, the Vice President of the Commission – Jim Kellogg – resigned.  This leaves the Commission with three members: Commissioner Hostler-Carmesin, appointed in June 2013, and Commissioners Sklar and Williams, both appointed in June 2015.

Upon his departure, Commissioner Kellogg lamented some of the changes he perceived to be occurring at the Commission in an article that appeared in the San Francisco Chronicle.  There are many perspectives on the extent of change and whether it is positive or negative.  Irrespective, change is underway, and it is happening on the heels of changes made to the California Department of Fish and Wildlife (Department) by the legislature.  A bill passed in 2012 (AB 2402), which we described here, changed the name of the Department from the Department of Fish and Game to the Department of Fish and Wildlife, and made numerous other changes to the Fish and Game Code, including the addition of new provisions establishing a Science Institute.

Up For Debate: What’s the Real Cost of Endangered Species Predation?

Posted in Conservation, Fish & Wildlife Service, National Marine Fisheries Service, Sacramento-San Joaquin Delta

On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Migratory Bird Treaty Act (MBTA).  The Oversight Hearing is entitled “The Costly Impacts of Predation and Conflicting Federal Statutes on Native and Endangered Species.”  Anticipated topics for discussion include addressing the fact that conflicts between federal statutes often prevent agencies and federal officials from effectively reducing predation of native and endangered fish by other protected species.  The hearing memo (pdf) notes that federal, tribal, state and local governments, and other entities have spent billions of dollars promoting the recovery of fish species listed under the ESA, some of which are being preyed upon by other protected species.

One of the predation scenarios that the panel is expected to address is the annual massing of sea lions (Otariinae) in the lower Columbia River, where the sea lions feed on smelt and salmon.  Sea lions are protected by the MMPA, which requires federal officials to identify an individual animal prior to killing it.  Columbia River Chinook salmon (Oncorhynchus tshawytscha) are listed as threatened under the ESA, meaning that the uncontrolled consumption of salmon by sea lions poses a conservation problem.  Likewise, double-crested cormorants (Phalacrocorax auritus), which are protected by the MBTA, regularly feed on threatened and endangered salmon.  The U.S. Fish and Wildlife Service (Service) has attempted to address the problem of predation by cormorants by authorizing the killing of thousands of birds; however, the same action cannot be taken with respect to sea lions.

The hearing memo also notes that the National Marine Fisheries Service estimates that non-native species are the cause of endangerment for approximately forty-eight percent of the species listed under the ESA, costing the domestic economy more than $120 billion in 2005 alone.  According to the hearing memo, the panel may also address long running concerns about whether striped bass, a recreational fishing stock regulated by the state of California, consume too many juvenile Chinook salmon, an endangered species, in California’s Sacramento-San Joaquin Bay-Delta.  Witnesses for the hearing will include the Honorable Leotis McCormack, Secretary for the Columbia River Inter-Tribal Fish Commission; Will Stelle, National Marine Fisheries Service Regional Administrator for the West Coast Region; Dr. Gary D. Grossman, Professor of Animal Ecology at the University of Georgia; Doug Demko, President of FishBio, a California fisheries consulting firm; and Dan Ashe, the Director of the Service.

The hearing will take place on February 10, 2016 at 10:00 am in 1334 Longworth House of Representatives Office Building.

Wildlife Agencies Announce Final Critical Habitat Rules and Policy

Posted in Critical Habitat, Fish & Wildlife Service

On February 5, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) announced the availability of two final rules and one policy addressing critical habitat under the Endangered Species Act (ESA).  One of the final rules  revises the definition of “destruction or adverse modification,” an issue that has been controversial among both critics and proponents of the proposed revisions.  The other final rule  is intended to clarify the criteria for designating critical habitat.  The final policy  updates existing policy on critical habitat exclusions under ESA section 4(b)(2).   Nossaman attorneys have been closely following these critical habitat rules and policy since the Services announced the proposed rules and policy on May 12, 2014.  The Summer 2015 edition of the American Bar Association’s Natural Resources and Environment publication features two Nossaman  articles analyzing the proposed regulations and policy and their potentially significant impacts on the regulated community.  The Federal Register will provide the official publication of the final rules and policy in the coming days.  If you have any questions regarding the final rules and policy, or their implications, please don’t hesitate to contact us.


Republican Congressmen Introduce Legislation to Opt Out of Ninth Circuit

Posted in Congress, Legislation

Arizona Sen. Jeff Flake (R) and Rep. Matt Salmon (R) recently introduced a bill (pdf) that would remove several western states from the United States Court of Appeals for the Ninth Circuit and move them to a newly created Twelfth Circuit.  If the bill is passed as drafted, California, Hawaii, Oregon, Washington, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit.  The new Twelfth Circuit would be comprised of Alaska, Arizona, Idaho, Montana, and Nevada.

Two other senators also introduced similar legislation (pdf).  Under the bill proposed by Montana Sen. Steve Daines (R) and Alaska Sen. Dan Sullivan (R), Oregon and Washington would also be moved to the new Twelfth Circuit, leaving just California, Hawaii, Guam, and the Northern Mariana Islands within the Ninth Circuit.

Some have questioned whether the move is politically motivated, given that the Ninth Circuit tends to be viewed as liberal, particularly with respect to environmental cases.  For example, in, National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), the Ninth Circuit held that the Environmental Protection Agency (EPA) was required to consult under section 7 of the Endangered Species Act (ESA) regarding the impacts of transferring Clean Water Act permitting authority, despite the fact that such transfers were non-discretionary if certain statutory criteria were met.  The Supreme Court reversed the Ninth Circuit, holding that the section 7 consultation requirement applies only to discretionary actions.  The Court reasoned that, because the transfers of permitting authority were non-discretionary, EPA could not be found to be a legally relevant cause of any harm to endangered species; thus, the ESA’s consultation requirement was not triggered.

These types of cases, which limit the scope of environmental statutes, are seen by some as motivation for the legislation.  Critics of the legislation assert that the bill amounts to gerrymandering in order to achieve preferred results in environmental cases.  Proponents of the split note the size and workload of the Ninth Circuit, and its historically high reversal rates by the Supreme Court.

NMFS Designates Additional Critical Habitat for North Atlantic Right Whales

Posted in Critical Habitat, National Marine Fisheries Service

On January 27, 2016, the National Marine Fisheries Service (NMFS) issued a final rule designating approximately 29,763 nautical square miles of marine habitat for the North Atlantic right whale (Eubalaena glacialis). The critical habitat is comprised of two areas, with the first region in the Gulf of Maine and Georges Bank and the second region off the southeastern United States, extending from Cape Fear, North Carolina to Cape Canaveral, Florida. The final rule replaces prior critical habitat designations issued on June 3, 1994 and July 6, 2006. According to NMFS, the areas designated as critical habitat provides critical feeding, nursery, and calving habitat for the population.

Right whales were listed under the Endangered Species Act (ESA) in 1970. In 2006, NMFS published a comprehensive right whale status update, in which NMFS determined that genetic data supported distinguishing three right whale lineages as separate species. Based on these findings, NMFS published final listing determinations for the North Atlantic, North Pacific, and southern hemisphere right whales as separate endangered species under the ESA.

The revised critical habitat designation is in response to a petition submitted in 2009 requesting that NMFS revisit the prior designations.

Senate Sportsmen’s Bill Would Delist Gray Wolves in Wyoming and Great Lakes Region

Posted in Congress, Delisting, Fish & Wildlife Service, Legislation

On January 20, 2015, the Senate Committee on Environment and Public Works approved S. 659, the Bipartisan Sportsmen’s Act of 2015, which complements the bill reported by the Senate Energy and Natural Resources Committee late last year.  However, the Environment and Public Works Committee’s approval adds a number of controversial amendments to the Act’s overarching purpose of increasing recreational hunting, fishing, shooting, conservation, and other access on public lands.  An amendment offered by Senator John Barrasso (R-Wyo.), and approved by voice vote, would delist the gray wolf in Wyoming and the Great Lakes region in recognition of those four states’ plans that are in place to protect the wolves without federal regulation under the Endangered Species Act.

The gray wolf in Wyoming and the Great Lakes region has been the subject of both regulatory and political efforts to delist the species in recent years.  Following the federal courts’ 2014 overturning of the U.S. Fish and Wildlife Service’s delisting of the wolves, a rider in the 2015 House Interior appropriations bill would have reversed the court and removed ESA protections for wolves in Michingan, Wisconsin, Minnesota, and Wyoming.  As discussed in a prior blog post, numerous gray wolf delisting bills were introduced in the House in 2015.  S. 659 will now proceed to the full Senate.

Fish & Wildlife Service Announces Listing Prioritization Shake-Up

Posted in Fish & Wildlife Service, Listing

In a notice published on January 15, 2016, the U.S. Fish and Wildlife Service (Service) announced a draft methodology for prioritizing species status reviews and 12-month findings on petitions for listing species under the Endangered Species Act (ESA).  81 Fed. Reg. 2,229 (Jan. 15, 2016).  The Service currently has over 500 unresolved species status reviews and associated 12-month findings on petitions for listing, and intends to use the changes to its methods to set priorities on how and when those unresolved petitions will be addressed.  The Service’s draft methodology will not apply to actions to delist or down-list a species from endangered to threatened.

The Service intends to use its draft methodology to create a National Listing Workplan, outlining all of the species listing petitions and the priorities assigned to those petitions, which will be updated on an annual basis.  Under the National Listing Workplan, species for which listing petitions have been filed will be placed in separate “priority bins” based on which species are most in need of listing and would most benefit from listing, so that those species can be evaluated for listing first.  In order to do this, the Service proposes the following “priority bins,” listed in order of priority:

  1. Species “experiencing severe threat levels across a majority of its range, resulting in severe population-level impacts” are given top priority.
  2. Species for which there is already strong data available on the species’ status have second priority. The Service notes that the strong data may support either a decision to list or not to list the species.
  3. Third priority will be given to species for whom there is scientific uncertainty regarding the species’ status, and for which the scientific uncertainty is expected to be resolved “within a reasonable timeframe” due to currently underway emerging science. Species placed in this bin would be moved to another “priority bin” upon research results becoming available.
  4. Fourth priority will be given to species for which there are conservation efforts in development or underway which are expected to address major threats.
  5. The lowest priority will be given to species for which there is limited information or data currently available, placing these species in line behind all other species for which more and better data is readily available.

Additional considerations to be used in developing the National Listing Workplan and determining any prioritization tie breakers are: (1) the complexity of the status review; (2) the extent to which the ESA would provide benefits to the species, its habitat, and to other species; (3) whether species status reviews can be “batched” together; and (4) whether there are any special circumstances that would warrant bumping a species up or down in priority level (e.g. if a particular field office is particularly short on resources to conduct a status review).  The Service anticipates that the National Listing Workplan will cover status reviews, 12-month findings, proposed and final listing determinations, and proposed and final critical habitat determinations for a multi-year period.  The Service believes that the National Listing Workplan serves to complement the 1983 Endangered and Threatened Species Listing and Recovery Priority Guidelines.  48 Fed. Reg. 43,098 (Sept. 21, 1983).  The Service invites comments on and additional information to inform its draft methodology until February 16, 2016.

U.S. Fish and Wildlife Service to Delist Texas Shrub

Posted in Delisting, Uncategorized

The U.S. Fish and Wildlife Service (USFWS) has announced that it will remove the Johnston’s frankenia (Frankenia johnstonii) from the Federal List of Endangered and Threatened Plants under the Endangered Species Act.  Johnson frankenia is a perennial shrub endemic to Starr, Webb and Zapata Counties in Texas and the northeastern part of the Mexican states of Nuevo Leon, Coahuila and Tamaulipas.  The shrub may be found in very salty soils in open, rocky, gypseous hillsides or saline flats.

USFWS listed the species in 1984, when there were five known populations of this perennial shrub within the United States.  All of the documented United States populations occurred on private lands, encompassing a 35-miles radius.  Today, the total number of United States populations number in the high 60s, covering approximately 2,031 square miles.

USFWS attributes recovery primarily to the significant increase in the number of documented occurrences of the species and a shift in south Texas land management practices away from cattleranching and toward wildlife habitat enhancement and hunting as a result of fluctuating cattle markets and frequent droughts.

U.S. Fish and Wildlife Service Concludes Northern Wolf Species Doesn’t Merit Listing

Posted in Fish & Wildlife Service, Listing

On January 6, 2016, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding on the petition to list the Alexander Archipelago wolf (Canis lupus ligoni) as an endangered or threatened species under the Endangered Species Act, concluding that listing the wolf species throughout all or a significant portion of its range “is not warranted at this time.”

The Alexander Archipelago wolf inhabits the mainland of southeastern Alaska, coastal British Columbia, and several island complexes.  On March 31, 2014, the Service issued a 90-day finding for the wolf stating that the listing petition presented substantial information indicating that listing may be warranted.  On June 20, 2014, various organizations sued the Service for failure to issue a 12-month finding within 12 months of the 2011 listing petition’s submission.  The parties eventually entered into a stipulated settlement agreement obligating the Service to issue a 12-month finding on or before December 31, 2015.

In the 12-month finding issued this week, the Service concluded that while there are a variety of potential threats facing the wolf species and its habitats, such as timber harvests, road development, climate change, and disease, these risk factors did not individually or collectively endanger the species throughout all or a significant portion of its range, and it is not likely to do so in the foreseeable future.  The Service also concluded that while the wolf population located on Prince of Wales Island is a discrete population, it did not qualify for listing as a distinct population segment because the discrete population was not significant to the species.

U.S. Fish and Wildlife Service Publishes Its Annual Candidate Notice of Review

Posted in Listing

On December 24, 2015, the U.S. Fish and Wildlife Service (Service) released its annual Candidate Notice of Review (CNOR) summarizing the status of species that qualify as candidates for listing under the Endangered Species Act (ESA).  The 2015 CNOR identifies all species designated as candidates and explains the changes to the candidate list from the 2014 CNOR.  The Service assigns each candidate species a “listing priority number” (LPN) indicating the magnitude of the threat to a species’ continued existence (with one being the highest priority, and twelve being the lowest priority).  The assessment of magnitude is based on the imminence of the threat and then categorized by a species’ taxonomic status.

In this year’s CNOR, the Service changed the LPN for two candidate species:  (1) the Hirst Brothers’ panic grass (Dichanthelium hirstii) and (2) the Whitebark pine (Pinus albicaulis).  Specifically, the Service changed the immediacy of threats to the Hirst Brothers’ panic grass from non-imminent to imminent and raised its LPN.  In contrast, the Service determined that threats to the Whitebark pine are decreasing in magnitude and therefore lowered its LPN.  The Service also determined that two species of Anchialine pool shrimp (Metabetaeus lohena and Palaemonella burnsi) occurring in the Hawaiian Islands are no longer likely to become endangered and therefore removed them from the candidate list.  The 2015 CNOR includes greater details regarding the status of these species and identifies 60 candidate species total.

The CNOR also provides summaries of the Service’s listing over the past year.  These summaries describe actions made pursuant to ESA Section 4, including the publication of final rules for listings for 31 species (including the Northern Long-eared bat (Myotis septentrionalis), Rufa Red Knot (Calidris canutus rufa), and Dakota Skipper (Hesperia dacotae)), proposed rules for listings of 67 species (including 49 species from Hawaii, the Eastern Massasauga Rattlesnake (Sistrurus catenatus), and Suwanee Moccasinshell (Medionidus walkeri)), not warranted findings or withdrawals of proposed rules for 24 species (including the Greater sage grouse(Centrocercus urophasianus) and Sonoran Desert Tortoise (Gopherus morafkai)), and positive 90-day findings for 67 species (including the Rusty-patched bumblebee (Bombus affinis), Monarch butterfly (Danaus plexippus), and California Gnatcatcher (Polioptila californica)).  A list of all of the species for which the Service acted pursuant to ESA Section 4 in 2015 can be found in the CNOR.  The CNOR also reports the status of actions subject to court order, such as those arising out of the 2011 listing settlements.