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Endangered Species Law and Policy

CESAR Files Delta Smelt ESA Suit Against DWR, Interior and USFWS

Posted in Uncategorized

On November 19, 2015, the Center for Environmental Science, Accuracy and Reliability (CESAR) filed a lawsuit against the California Department of Water Resources (DWR), the U.S. Department of the Interior (Interior) and the U.S. Fish & Wildlife Service (USFWS) (collectively, Federal Defendants) for violating the Endangered Species Act (ESA) in connection with the installation, operation and removal of an emergency drought salinity barrier at West False River in the Sacramento-San Joaquin River Delta. The complaint was filed in the U.S. District Court for the Eastern District of California (Case No. 2:15-cv-0242-WBS-KJN) and the matter has been assigned to Honorable Judge William B. Shubb and referred to Magistrate Judge Kendall J. Newman.

CESAR alleges that the salinity barrier project resulted in the unauthorized take of federally threatened delta smelt (Hypomesus transpacificus) due to changed flows and increased salinity levels, as well as blockage of access to spawning and rearing habitat, and that Interior was required, but failed to reinitiate formal consultation with USFWS to obtain take authorization for the salinity barrier project.  A key issue in the case is whether the salinity barrier project was authorized under the 2008 USFWS biological opinion and the 2009 National Marine Fisheries Service biological opinion relating to the coordinated long-term operations of the Central Valley Project and State Water Project.  CESAR seeks declaratory and injunctive relief.

CESAR’s pending suit against DWR and Federal Defendants is the organization’s third attempt to stop the salinity barrier project.  CESAR’s suit to stop the construction of the salinity barrier was blocked by the court in June of this year. Approximately two months ago, the court dismissed CESAR’s earlier complaint, holding that CESAR failed to comply with the ESA’s 60-day notice provision.

Court Rejects Some, But Not All Challenges to Critical Habitat Designation of Private Land

Posted in Court Decisions, Critical Habitat, Fish & Wildlife Service

In 2012, the U.S. Fish and Wildlife Service (Service) published a final rule designating 1,724 acres as critical habitat for the endangered Riverside fairy shrimp (Streptocephalus woottoni).  Included in that designation were 56 acres of private land, on which the plaintiff, Otay Mesa Property, L.P. (Otay Mesa), had planned to build a recycling facility and landfill.  Because of the land use restrictions potentially implicated by the critical habitat designation, Otay Mesa challenged the final rule in federal court, asserting that (1) the Service improperly determined that the property met the definition of critical habitat in the Endangered Species Act (ESA), (2) the Service did not properly account for the economic consequences of the designation under the ESA, and (3) the Service failed to comply with the National Environmental Policy Act before issuing the final rule, as the Service did not prepare an environmental assessment analyzing the environmental impacts of the critical habitat designation.  In a recent opinion, the United States District Court for the District of Columbia rejected the majority of Otay Mesa’s arguments, although it did find that further briefing was necessary on the issue of whether the entire 56 acres was properly designated as critical habitat.  Otay Mesa Property, L.P. v. U.S. Dep’t of the Interior, Case No. 13-cv-0240 (D.D.C. Nov. 13, 2015).

Under the ESA, the Service is strongly encouraged to issue a critical habitat designation whenever it decides to list a species as threatened or endangered.  However, when the Service listed the Riverside fairy shrimp as an endangered species in 1993, it did not designate any critical habitat.  Instead, the first critical habitat designation took place in 2001.  That designation, however, was challenged in federal court, and as a result the Service issued a revised critical habitat designation in 2005.  With respect to the 56 acres, while the Service concluded that the property met the statutory definition of critical habitat, it decided not to include the 56 acres based on an economic analysis of the designation, finding that the benefits of exclusion exceeded (estimated to be between $5 million and $31 million) the costs of inclusion.  Again, however, the Service’s critical habitat designation was challenged in federal court, thus leading to the 2012 final rule at issue in the Otay Mesa litigation.

The inclusion of the 56 acres in the 2012 critical habitat designation was based on three environmental surveys of a former cattle stock pond on the property.  These surveys positively established that Riverside fairy shrimp were located in the stock pond.  In order to include the entire 56 acres surrounding the stock pond in the designation, the Service also found that the surrounding acreage comprised the watershed for the stock pond.

With respect to the economic analysis, the Service, employing a different methodology than that used in 2005, found that the estimated costs associated with the critical habitat designation were only between $1.77 million and $2.85 million.  In light of this new analysis, the Service elected not exercise its discretion to exclude the property from designation.

The district court found that with respect to the stock pond and the surrounding watershed, the Service’s designation was supported by substantial evidence, and therefore was properly designated as critical habitat.  The court explained that “the record evidence amply supports the agency’s conclusion that Riverside fairy shrimp occupied the vernal pool that exists on [the property] at the time the species was listed, and the [Service] rationally determined that the watershed area surrounding that pool is part of the occupied critical habitat for that endangered species.”  The court also upheld the Service’s alternate finding, stating that the area “qualifies as ‘unoccupied’ critical habitat because preservation of the stock pond and watershed is essential to the conservation of the shrimp that indisputably exist there at present.”  The court, however, could not make a finding as to the entirety of the 56 acres, because the record portions that were provided to the court did not contain any topographical maps or other record evidence justifying the conclusion that the entire 56 acres were accurately identified as a watershed for the stock pond.  Accordingly, the court ordered the parties to identify any additional portions of the record that related to the watershed issue, and established a supplemental briefing schedule.

The district court rejected the argument that the Service employed an improper methodology when analyzing the economic impacts of the critical habitat designation, explaining that while the methodology was clearly different than what was employed in 2005, the Service’s deviation from the 2005 methodology was supported by a rational explanation – the new methodology was developed as a result of prior conflicting court decisions.

Finally, while the district court acknowledged that the U.S. Court of Appeals for the Tenth Circuit and Ninth Circuit had reached conflicting conclusions with respect to whether an environmental assessment must be conducted prior to a critical habitat designation, it stated “that the Ninth Circuit has the better of the argument,” and therefore the Service was not required to prepare an environmental assessment or environmental impact statement prior to issuing the final rule.



U.S. Fish and Wildlife Service Delists Delmarva Fox Squirrel

Posted in Delisting, Fish & Wildlife Service

On November 16, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) removing the Delmarva fox squirrel (Sciurus niger cinereus) from the list of endangered and threatened species.  Following its 2012 review of the species, the Service concluded that the best available scientific and commercial data indicate the Delmarva fox squirrel is no longer in danger of extinction or likely to become endangered within the foreseeable future.

The Service credits the Delmarva fox squirrel’s recovery primarily to the establishment of new populations of the species through translocations and the overall growth of the range-wide population.  Additionally, the Service concluded that populations have enough suitable habitat to continue expansion and movement between populations.  It also noted that the closing of a Delmarva fox squirrel hunting season reduced mortality and probably enabled populations in some areas to rebuild.

Delmarva fox squirrels occur over a large area and occupy a variety of mature forest types.  Populations of the species now span 10 counties, with a majority residing in Maryland.  More than 80 percent of the species’ home is on private land, so, according to the Service, residents of the Delmarva Peninsula played a major role in the species’ recovery.  In addition, many state laws and programs protect large areas of the species habitat.

States will resume leadership for conservation of the Delmarva fox squirrel.  The species is listed as endangered in Delaware, which has developed a plan to provide for a coordinated framework for conservation actions to increase squirrel populations.  Virginia is anticipated to leave the species’ state listing status as endangered.  Maryland expects to reclassify the Delmarva fox squirrel as a “Species in Need of Conservation.”

The delisting rule includes a Post-Delisting Monitoring Plan that outlines how the Service and its partners will monitor the species’ populations to ensure they do not decline and require re-listing.  The rule is effective December 16, 2015.

U.S. Fish and Wildlife Service Issues Updated Guidance to Streamline 90-Day and 12-Month Petition Findings

Posted in Delisting, Fish & Wildlife Service, Listing

On October 27, 2015, the U.S. Fish and Wildlife Service (“Service”) issued a memorandum to the Service Regional Directors announcing new guidance to streamline findings on petitions to list species under the Endangered Species Act (ESA).  The stated purpose of the guidance is to “streamline petition findings while ensuring [the Service] conducts an adequate review of petitions.”   The memorandum clarifies that this guidance is “interim guidance” until the Service’s amendments to its petition listing rules are final.  Once finalized, the guidance will supersede previous guidance issued in July 1995, November 1995, and November 2012.

The interim guidance consists of the guidance itself and several updated appendices made available concurrently with the Directors’ memorandum.  These include:

  • Procedures for Making 90-day Petition Findings Under ESA Section 4(b)(3)(A) and Publication of Findings in the Federal Register (updated October 20, 2015).
  • A Petition Acknowledgment Letter Template (updated November 5, 2015).
  • Guidance on making 90-day Petition Findings Under ESA Section 4(b)(3)(A) (updated October 20, 2015).
  • Petition Review Form (Updated November 5, 2015).
  • Summary of Court Rulings Related to 90-Day Findings (Updated October 20, 2015).
  • Guidance on Batching 90-Day Findings for Publication in the Federal Register (Updated October 20, 2015).
  • Batched Federal Register Notice Template (Updated November 5, 2015).
  • Briefing Paper Template (updated November 5, 2015).

This guidance follows a flurry of listing actions that have occurred over the past five years.  The 2011 listing settlement  arose out of the Service’s failure to process petitions in accordance with the timeframes set forth in ESA Section 4.  Since then, the Service has, in accordance with the court-ordered deadlines, published findings on the hundreds of species included in the settlement.  All the while, environmental organizations have continued to file “mega-petitions” for tens of species at a time, again triggering the Service’s obligations under ESA Section 4.  Notably, the proposed amendments to the petition listing rule referenced in the Directors’ memorandum would prohibit the filing of mega-petitions and limit petitions to one species at a time, presumably to avoid the Service falling behind on its Section 4 listing obligations.  This guidance serves to further advise Service personnel on how to effectively make findings on petitions in accordance with both the timelines and the substantive aspects of ESA Section 4.


Oregon Fish and Wildlife Commission Removes Gray Wolf from State Endangered Species List

Posted in Delisting

On November 9, 2015, the Oregon Fish and Wildlife Commission (Commission) voted to remove the gray wolf (Canis lupus) from protection under the Oregon Endangered Species Act.  The Commission meeting lasted almost 10 hours, with more than 100 people providing public testimony.  The decision was the result of a 4-2 vote by the Commission.

The decision follows the recommendation of the Oregon Department of Fish and Wildlife (ODFW) to delist the wolf, as we reported here.  The wolf delisting will not impact the management of the species under the Oregon Wolf Conservation and Management Plan (Wolf Plan), which emphasizes non-lethal deterrence measures to resolve wolf and livestock conflicts.  Under the Wolf Plan, ranchers can only shoot a wolf caught in the act of wounding, biting, killing or chasing livestock.

In addition, the Commission’s decision will not impact how the majority of Oregon’s approximately 83 wolves are managed.  The gray wolf is still listed under the federal Endangered Species Act in the western two-thirds of the state.

President Issues Memo regarding Mitigation of Natural Resources Impacts

Posted in Conservation, Regulatory Reform

On November 3, 2015, the President issued a memorandum entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” In it, he states “[t]his memorandum will encourage private investment in restoration and public-private partnerships, and help foster opportunities for businesses or non-profit organizations with relevant expertise to successfully achieve restoration and conservation objectives.” The memo includes five sections: policy, definitions, federal principles for mitigation, federal action to strengthen mitigation policies, and general provisions.

Section 1 states that it shall be the policy of the Departments of Agriculture, Defense, and the Interior, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration to avoid and then minimize harmful effects to natural resources. Section 3(b) directs that mitigation policies should establish a net benefit goal, or, at a minimum, a no net loss goal. In addition, Section 3(c) establishes a preference for advance compensation mechanisms. And Section 4 requires certain specified agencies or agency components to draft or revise mitigation policies.

Oregon Department of Fish and Wildlife Recommends Delisting the Gray Wolf

Posted in Delisting

On October 29, 2015, the Oregon Department of Fish and Wildlife (ODFW) announced that it believes that the gray wolf (Canis lupus) has met the criteria to be delisted from the state Endangered Species Act (Oregon ESA). Under the Oregon ESA, ODFW looks at the following five factors to determine if sufficient biological information exists to justify delisting: (1) the species is not now in danger of extinction in any significant portion of its range; (2) the species’ natural reproductive potential is not in danger of failure; (3) the species’ populations are not undergoing imminent or active deterioration within their range or habitat; (4) over-utilization of the species is not occurring; and (5) adequate protection programs exist to protect the species and its habitat in the future.

Based on these factors, ODFW determined that delisting is justified because wolves are represented over a large geographic area, the population is continuing to increase, wolf habitat is stable and wolf range is increasing, over-utilization is unlikely, and the Wolf Plan, which guides wolf management in Oregon, ensures protection of wolves in the future. ODFW estimates that the state now has 83 wolves living in 10 packs, with several breeding pairs.

Under the Oregon ESA, the Oregon Fish and Wildlife Commission (Commission) has the authority to list and delist species. ODFW will recommend delisting the gray wolf to the Commission at its meeting on November 9, 2015. The wolf delisting is the only item on the agenda. Written comments will be accepted until Friday, November 6 at 5 pm.

United States Geological Survey and Other Agencies Announce Sagebrush Restoration Handbook Series

Posted in Conservation, Uncategorized

On the heels of the recent U.S. Fish and Wildlife Service (Service) decision not to list the greater sage grouse (Centrocercus urophasianus) under the Endangered Species Act and the concurrent Bureau of Land Management (BLM) issuance of Records of Decision on over 98 land use plans focused on sagebrush habitat, the United States Geological Survey (USGS)  and many other agencies announced their issuance of part one of a three-part handbook series focused on sagebrush steppe ecosystems.  Several federal and state entities, including the U.S. Joint Fire Science Program and National Interagency Fire Center, BLM, Great Northern Landscape Conservation, USGS, and the Western Association of Fish and Wildlife Agencies, funded the handbook effort.  USGS, U.S. Forest Service, BLM, Oregon State University, Utah State University and Brigham Young University are co-authoring the handbook series. The handbook series  will focus on the greater sage grouse as the quintessential sagebrush species, but will also address biodiversity, reduction of invasive plant dominance, and improving livestock foraging stability.  The first part of the handbook focuses on:

  • similarities and differences among sagebrush plant communities;
  • plant community resilience to disturbance and resistance to invasive plants based on soil temperature and moisture regimes;
  • soils and the ecology critical for plant species used for restoration;
  • changes that can be made to current management practices or re-vegetation efforts in support of general restoration actions;
  • landscape restoration with an emphasis on restoration to benefit sage grouse; and
  • monitoring effectiveness of restoration actions in support of adaptive management.

The second and third parts of the handbook will focus on landscape level and site-specific restoration activities.  The USGS announcement did not include anticipated timing for parts two and three of the series.  More information about the handbook development and a link to part one of the series can be found here.

Bureau of Land Management and California Department of Fish and Wildlife Sign Conservation Agreement

Posted in Conservation

On October 16, 2015, the California Department of Fish and Wildlife (CDFW) and the Bureau of Land Management (BLM) announced the signing of a conservation agreement intended to provide greater protections and more flexibility in the management of impacts to sensitive species and their habitats.  The conservation agreement, called the “Durability Agreement,” will allow CDFW to use BLM lands for various conservation actions, and occasionally for project-level mitigation to meet California state standards.  The Durability Agreement, developed during coordination between CDFW and BLM on the Desert Renewable Energy Conservation Plan, covers 15 million acres of BLM lands in California, which provide important habitat for sensitive species.  Under the Durability Agreement, BLM lands may be used to compensate for impacts to wildlife that cannot be avoided or minimized at the project level, and to provide for greater wildlife connectivity between habitat areas and genetically diverse populations of sensitive species.

U.S. Fish and Wildlife Service Determines that Listing of Sierra Nevada Red Fox is Warranted at the Distinct Population Segment Level; Separately Service Removes 19 Species From Candidate List

Posted in Fish & Wildlife Service, Listing

In a notice published on October 8, 2015, the U.S. Fish and Wildlife Service (Service) announced its proposed 12-month finding on the Center for Biological Diversity’s (CBD) petition to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the federal Endangered Species Act. The Service determined that listing of the subspecies is not warranted because the fox is more abundant than previously believed and because known and potential stressors to the fox are not likely to cause the subspecies to become endangered in the foreseeable future.

CBD’s petition also requested that the Service evaluate whether two populations within the subspecies’ range are potential distinct population segments (DPSs). The Service concluded that the Southern Cascades and Sierra Nevada population segments of the Sierra Nevada red fox meet the Service’s DPS policy criteria and that listing the Sierra Nevada DPS is warranted but precluded by higher priority actions. The Service will add the Sierra Nevada DPS of the Sierra Nevada red fox to the Service’s candidate species list.

The Service’s findings are based on a 2015 report prepared by a team of Service biologists entitled “Species Report, Sierra Nevada Red Fox (Vulpes vulpes necator),” available at http://www.regulations.gov, Docket No. FWS-R8-ES-2011-0103.

Sierra Nevada red fox use multiple habitat types in the alpine and subalpine zones, including meadows and rocky areas, high-elevation and sub-alpine conifer habitat.  The Service confirmed that the fox’s range extends into the Oregon Cascades, as far north as to Mount Hood, and individuals have been observed in the vicinity of Mount Washington, Dutchman Flats, Willamette Pass and Crater Lake in Oregon, and Lassen and Sonora Pass in California.

The Service also removed 19 species from its candidate list in a notice published on the same day, concluding that listing the American eel (Anguilla rostrate), Cumberland arrow darter (Etheostoma sagitta), the Great Basin distinct population segment (DPS) of the Columbia spotted frog (Rana luteiventris), Goose Creek milkvetch (Astragalus anserinus), Nevares spring bug (Ambrysus Funebis), Page springsnail (Pyrgulopsis morrisoni), Ramshaw meadows sand-verbena (Abronia alpina), Sequatchie caddisfly (Glyphopsyche sequatchie), Shawnee darter (Etheostoma tecumsehi), Siskiyou mariposa lily (Calochortus persistens), Sleeping ute milkvetch (Astragalus tortipes), Southern Idaho ground squirrel (Urocitellus Endemicus), Tahoe yellow cress (Rorippa Subumbellata), and six Tennessee cave beetles (Baker Station Cave Beetle (Pseudanophthalmus Insularis), Coleman Cave Beetle (Pseudanophthalmus Colemanensis), Fowler’s Cave Beetle (Pseudanophthalmus Fowlerae), Indian Grave Point Cave Beetle (Pseudanophthalmus Tiresias), Inquirer Cave Beetle (Pseudanophthalmus Inquisitor), and Noblett’s Cave Beetle (Pseudanophthalmus Paulus)) is not warranted at this time.