Header graphic for print

Endangered Species Law and Policy

U.S. Fish and Wildlife Service Issues Proposed Listings and Designates Critical Habitat Pursuant to 2011 Listing Settlement Workplan

Posted in Critical Habitat, Fish & Wildlife Service, Listing

During the last week of its fiscal year, the U.S. Fish and Wildlife Service (“Service”) made several findings under section 4 of the Endangered Species Act (“ESA”) to meet its obligations under the 2011 listing settlement workplan.  Below is a brief summary of these findings.

On September 29, 2015, the Service published a proposed rule to list four plant species from South Florida (specifically Miami-Dade and Monroe counties).  These include the Big Pine partridge pea (Chamaecrista lineata var. keyensis), the wedge spurge (Chamaesyce deltoidea ssp. Serpyllum) the sand flax (Linum arenicola), and Blodgett’s silverbush (Argythamnia blodgettii).  The proposed rule designates the Big Pine partridge pea, the wedge spurge, and the sand flax as endangered species, and the Blodgett’s silverbush as a threatened species.   The proposed rule identifies several threats to these four species, including habitat loss and modification through urban and agricultural development, lack of adequate fire management, the proliferation of nonnative invasive plants, stochastic events (hurricanes and storm surge), maintenance practices on roadsides and disturbed sites, and sea level rise.  The Service has indicated that the public comment period for this proposed rule ends November 30, 2015.

On September 30, 2015, the Service published a proposed rule to list the eastern massasauga rattlesnake (Sistrurus catenatus) as a threatened species.  The rattlesnake’s range includes portions of New York, Pennsylvania, Michigan, Ohio, Indiana, Illinois, Wisconsin, Minnesota, Missouri, Iowa, and Ontario, Canada.  Its habitat during its active season is typically higher, drier, habitats, open canopy wetlands, and adjacent upland areas, but can be found widely, including in oil fields.  During inactive periods or hibernation, the rattlesnake will move to lower, wet areas.  The Service identified the primary risk to the rattlesnake as habitat loss and fragmentation, particularly through development and vegetative succession, road mortality, hydrologic alteration, persecution, collection , and mortality of individuals as a result of prescribed fire and mowing.  The Service has indicated that the public comment period for this proposed rule ends November 30, 2015.

On October 1, 2015, the Service published its final rule designating critical habitat for the Dakota Skipper (Hesperia dacotae) and the Poweshiek Skipperling (Oarisma poweshiek), two butterflies occurring in the Upper Plains and Midwest.   The proposed critical habitat includes approximately 19, 903 acres in North and South Dakota for the Dakota Skipper and approximately 25,888 acres in North Dakota, South Dakota, Iowa, Michigan, Minnesota, and Wisconsin for the Poweshiek skipperling.  Dakota skippers are obligate residents of undisturbed, high-quality prairie.   Poweshiek skipperlings have a wider array of habitat types, including high-quality prairie fens, grassy lake and stream margins, undisturbed moist meadows, and wet-mesic to dry tallgrass undisturbed prairies.  The Service includes unoccupied areas in both species’ proposed critical habitat designations, positing that existing occupied areas are insufficient for conservation of these two species.  The final rule becomes effective November 2, 2015.

U.S. District Court Rejects Challenges to Final Rule Terminating Sea Otter Translocation Program.

Posted in Court Decisions

On September 18, 2015, the U.S. District Court for the Central District of California rejected the assertion by the California Sea Urchin Commission, California Abalone Association, and Commercial Fishermen of Santa Barbara (Plaintiffs) that the U.S. Fish and Wildlife Service (Service) lacked authority to issue a final rule terminating the California sea otter (Enhydra lutris nereis) translocation program.  The program was developed to establish a translocated population of sea otters remote from the main population, to help ensure that the entire species would not be wiped out by a single catastrophic oil spill.  Because sea otters are listed under the Endangered Species Act (ESA), the program also included incidental take exemptions for fisheries that operate in the waters surrounding the newly translocated population.  The Service terminated the program in 2012 after determining that it was unsuccessful.

Plaintiffs challenged the Service’s termination of the program, arguing the Service caused Plaintiffs to “refrain from pursuing their livelihoods for fear of prosecution for take of otter.”  Despite Plaintiffs’ arguments, the court held that the Service was authorized to terminate the program.  The court reasoned that, because the Service was authorized by statute to establish the program to create the new sea otter population, it must therefore have the discretion to terminate the program, including the exemptions associated therewith, at any time thereafter.

The court also held that Plaintiffs lacked standing because they failed to establish injury in fact, as required by Article III of the Constitution.

Greater Sage-Grouse Avoids Listing through “Unprecedented” Collaborative Conservation Efforts

Posted in Conservation, Fish & Wildlife Service, Listing

On September 22, 2015, Secretary of the Interior Sally Jewell announced that the greater sage-grouse (Centrocercus urophasianus) does not warrant protection under the Endangered Species Act (ESA).  The Department of the Interior is calling the greater sage-grouse strategy “the largest land conservation effort in U.S. history” and “a 21st-century approach to conservation.”  In reaching its “not warranted” finding, the U.S. Fish and Wildlife Service (Service) relied upon the collective conservation efforts of the Bureau of Land Management (BLM), U.S. Forest Service (USFS), State agencies, industry, and private landowners.  The final listing determination follows the Service’s 2010 finding that listing of the greater sage-grouse was warranted but precluded by other ESA priorities, as well as the Service’s 2011 settlements with environmental groups in which the agency agreed to publish a final listing decision by September 30, 2015.

This charismatic umbrella species has been a source of controversy throughout its 173 million acre range, which includes sagebrush habitat in 11 Western states where ranching and natural resource production are widespread.  Following the Service’s 2010 “warranted but precluded” finding, Federal and State agencies, private landowners, industry, and environmental groups pursued a range-wide conservation strategy to benefit the species and to diminish the need for ESA listing.  The Service’s ultimate decision that listing is no longer warranted was largely based upon these conservation efforts, which include BLM and USFS land management plans, Candidate Conservation Agreements with Assurances (CCAAs) voluntarily entered into by private landowners, and State plans to conserve the species.  Concurrent with the listing decision, BLM and USFS announced their finalization of 98 land-use plans intended to conserve greater sage-grouse habitat, avoid disturbance of habitat areas considered essential to the species, and support sustainable economic development on various public lands across 10 states.  Ultimately, the Service determined that the primary threats to greater sage-grouse—which were identified in 2010 as habitat loss, habitat fragmentation, and inadequacy of existing regulatory mechanisms—have been “ameliorated” by conservation efforts implemented by Federal, State, and private landowners.

In her speech announcing the listing decision, Secretary Jewell called the Federal, State, and local actions an “epic conservation effort” and an example of how the ESA “is an effective and flexible tool and a critical catalyst for conservation.”  The relatively recent trend of stakeholders developing concerted voluntary pre-listing conservation strategies for proposed or candidate species has had mixed success in heading off species listings, such as: (1) the dunes sagebrush lizard (Sceloporus arenicolus), which received a “not warranted” determination in 2012; (2) the Gunnison sage-grouse (Centrocercus minimus), which was listed as threatened in 2014; and (3) the lesser prairie-chicken (Tympanuchus pallidicinctus), whose 2014 threatened listing has recently been vacated by a Federal district court based upon the Service’s flawed evaluation of voluntary conservation efforts.  Due to its geographic, economic, and political significance, the listing decision for the greater sage-grouse and the associated Federal land-use plans are likely to be challenged legislatively as well as in the courts, where litigation has already been filed to protect mining interests.

The Service’s listing determination for the greater sage-grouse has not yet been published in the Federal Register; a 2014 appropriations bill rider prohibited Service expenditures for listing of the greater sage-grouse, and this rider expires on the same September 30, 2015 deadline by which the Service must make the court-ordered listing determination.  Though the Service has concluded that the greater sage-grouse does not currently warrant listing under the ESA, the Service plans to conduct a status review in five years to assess the success of the conservation measures in place and inform adaptive management of the species.

U.S. Fish and Wildlife Service Issues 90-Day Findings on Petitions to List 25 Plant and Animal Species

Posted in Fish & Wildlife Service, Listing

On September 18, 2015, the U.S. Fish and Wildlife Service (Service) issued 90-day findings on 25 petitions to list various plants and animals under the Endangered Species Act (ESA).  Of the 25 petitions, the Service concluded that 23 petitions presented substantial scientific or commercial information indicating that the petitioned actions may be warranted, and initiated 12-month status reviews for those species to determine if the listing is warranted under the ESA.  These species include:

Species Latin Name Range
Blue Calamintha bee Osmia calaminthae Florida
California spotted owl Strix occidentalis occidentalis California
Cascade torrent salamander Rhyacotriton cascadae Washington and Oregon
Columbia torrent salamander Rhyacotriton kezeri Washington and Oregon
Florida pine snake Pituophis melanoleucus mugitus Alabama, Florida, Georgia, South Carolina
Inyo Mountains salamander Batrachoseps campi California
Lesser slender salamander Batrachoseps minor California
Limestone salamander Hydromantes brunus California
Northern bog lemming Synaptomys borealis Alaska, Washington, Idaho, Maine, Montana, Minnesota, New Hampshire, and New York
Panamint alligator lizard Elgaria panamintina California
Peaks of Otter salamander Plethodon hubrichti Virginia
Regal fritillary Speyeria idalia Kansas, Arkansas, North Carolina, Missouri, Nebraska, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and West Virginia
Rusty patched bumble bee Bombus affinis Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, North Carolina, South Carolina, Tennessee, Ohio, Kentucky, Indiana, Illinois, Iowa, Michigan, Wisconsin, Minnesota, North Dakota, South Dakota, and Ontario, Canada
Shasta salamander Hydromantes shastae California
Short-tailed snake Stilosoma extenuatum Florida
Southern rubber boa Charina bottae umbratica California
Tinian monarch Monarcha takatsukasae Tinian Island
Tricolored blackbird Agelaius tricolor California, Oregon, Nevada, Washington (United States), and Baja California (Mexico
Contiguous U.S. distinct population segment (DPS) of tufted puffin Fratercula cirrhata Washington, Oregon, and California
Virgin River spinedace Lepidomeda mollispinis mollispinis Arizona, Nevada, and Utah
Yuman desert fringe-toed lizard Uma rufopunctata Arizona (United States) and Sonora (Mexico)


The Service also concluded that a listing petitions for the Cahaba pebblesnail (Clappia cahabensis), found in Alabama, and a delisting petition for Stephens’ kangaroo rat (Dipodomys stephensi), found in California, did not present substantial scientific or commercial information indicating that the petitioned actions may be warranted.  Accordingly, the Service declined to initiate status reviews for those species.

The Service has indicated that it will be accepting comments on the 23 species undergoing status reviews until November 17, 2015.


Challenge to Emergency Drought Salinity Barrier Thrown Out Due to Lack of Proper Notice

Posted in Court Decisions, Fish & Wildlife Service, Legal, Litigation, Sacramento-San Joaquin Delta

On September 14, 2015, the U.S. District Court for the Eastern District of California granted the state and federal defendants’ motion to dismiss for lack of subject matter jurisdiction.  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884 (pdf). Plaintiff CESAR claimed that the construction and operation of an emergency drought salinity barrier (Project) in the Sacramento-San Joaquin River Delta—which is designated as critical habitat for the threatened delta smelt (Hypomesus transpacificus)—violates the section 9 “take” prohibition and the section 7 consultation requirement of the Endangered Species Act (ESA).  CESAR filed its action against the California Department of Water Resources and the U.S. Fish and Wildlife Service (Service); its prior motion for a temporary restraining order on the Project was denied (see our prior blog post dated June 24, 2015 for additional background on the Project).  In addition to seeking declaratory and injunctive relief, CESAR sought to require the Service to reinitiate consultation under the ESA.

The defendants asserted in their motion to dismiss that the court did not have jurisdiction over the case because CESAR did not comply with the ESA’s sixty-day notice requirement.  The ESA explicitly requires that a written sixty-day notice be provided to the Secretary (here, the Secretary of the Interior, due to the delta smelt’s listing by the Service) prior to commencing litigation.  CESAR only produced evidence that its notice letters were provided to the Director of the Service, rather than the Secretary of the Interior, and the court adhered to precedent holding that “failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA.”  Further, the court reasoned that the failure to notify the Secretary of the Interior is the sort of “failure to take the minimal steps necessary” that does not weigh in favor of modifying statutory requirements.  The court concluded that failure to notify the correct parties was a clear impediment to jurisdiction, and the motion to dismiss was granted without leave to amend.

U.S. Fish and Wildlife Service Finds Listing of New England Cottontail Not Warranted Due to Species Recovery From Conservation Efforts

Posted in Conservation, Fish & Wildlife Service, Listing

Photo: U.S. Fish and Wildlife Service

On September 15, 2015, the U.S. Fish and Wildlife Service (Service) published (pdf) its 12-month finding on a petition to list the New England cottontail (Sylvilagus transitionalis) as an endangered or threatened species under the Endangered Species Act (ESA).  The Service determined that listing the species is not warranted.

The New England cottontail is the only rabbit native to New England and the area east of the Hudson River in New York.  It was first identified as a candidate species in 2006, when the Service published a finding that listing the New England cottontail as threatened or endangered was warranted, but precluded.  The Service has conducted annual status reviews and reaffirmed the 2006 finding.

According to the Service (pdf) removal of the New England cottontail from the list of candidate species is the result of a public-private partnership between foresters, farmers, birdwatchers, biologists, hunters, and other conservationists.  Specifically, in 2008, state and Service biologists began organizing a conservation effort for the species.  That effort included the development of a range-wide, science-based conservation strategy that set forth targeted ambitious, but achievable, goals.  As a result of these conservation efforts, the species recovery is three-quarters of the way towards the goal of 13,500 New England cottontails in healthy, young forest landscapes by 2030.

In addition to the conservation strategy, voluntary restoration efforts have played a critical role in the recovery of the species.  In the past three years, the U.S. Department of Agriculture’s Natural Resources Conservation Service has worked with owners and managers of private lands to restore more than 4,400 acres of habitat by removing trees and invasive species, planting native shrubs, and creating brush piles.

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

Posted in Court Decisions, Fish & Wildlife Service, Uncategorized

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird” protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful “taking” to occur, the defendant must have taken a “deliberate act done directly and intentionally to migratory birds.”  United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4, 2015).  Because the MBTA criminal convictions at issue were based on activities that were not targeted at migratory birds, the Fifth Circuit reversed the lower court’s criminal convictions under the MBTA.

The defendants CITGO Petroleum Corporation and CITGO Refining and Chemicals Company, L.P. (collectively, CITGO) are the owner and operator of a petroleum refinery in Texas.  After a 2002 surprise inspection by the EPA, the Government filed a criminal indictment accusing CITGO of violating the Clean Air Act and “taking” migratory birds in violation of the MBTA.  The remains of various migratory birds were discovered in two large, unroofed equalization tanks that were holding approximately 130,000 barrels of oil at the time of the EPA’s inspection.  The district court found CITGO guilty on three counts of “taking” migratory birds in violation of the MBTA, concluding that liability could be found, regardless of intent, so long as it was proven that CITGO proximately caused the death of a migratory bird.

Setting the stage, the Fifth Circuit explained that unless there is some contrary indication in the statute, courts are required to presume that Congress intended to adopt the common law definition of statutory terms.  Applying this rule of statutory construction, the Fifth Circuit found that when Congress enacted the MBTA, the term “take,” as applied to wildlife, had a well-understood meaning in the common law that did not include accidental or indirect harm to animals.  The Fifth Circuit, citing to the Endangered Species Act and Marine Mammal Protection Act and their use of the terms “harm” and harass” when defining “take,” also found that when Congress intends to go beyond the common law definition of “take” it will incorporate terms like “harm” and “harass” that encompass accidental or indirect harm to animals.  Therefore, “[t]he absence from the MBTA of terms like ‘harm’ or ‘harass’, or any other language signaling Congress’ intent to modify the common law definition supports reading ‘take’ to assume its common law meaning.”

Accordingly, the Fifth Circuit reversed the MBTA convictions for CITGO, finding that while equalization tanks caused the bird deaths, there was no deliberate act done directly and intentionally by CITGO to cause the bird deaths.  By interpreting the MBTA “take” prohibition in this manner, the Fifth Circuit rejected the contrary positions taken by the Second and Tenth Circuits.

In addition to addressing the legal arguments, the Fifth Circuit also provided a number of real-world examples in which MBTA liability would not arise, including bird collisions with electrical transmission lines.  This example is particularly noteworthy because earlier this year the U.S. Fish and Wildlife Service published a notice in the Federal Register regarding a potential permitting program authorizing incidental take permits for electrical transmission and distribution facilities. (See May 26, 2015 E-Alert.)  If collisions with electrical facilities cannot result in MBTA liability, there would be no reason for electrical generators or distributors operating within the Fifth Circuit’s jurisdiction to seek an incidental take permit from the U.S. Fish and Wildlife Service.

California Supreme Court Ponders Fully Protected Species Issues

Posted in Conservation, Court Decisions

On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.)  The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County.  The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act (CEQA) allowed the Department to adopt a greenhouse gas threshold of significance based on the “Business as Usual” methodology adopted by the California Air Resources Board in its A.B. 32 Scoping Plan,  (2) whether the Department’s measures requiring the collection and transplantation of a fully protected fish (the unarmored threespine stickleback) to avoid project impacts is “take” in violation of the state law prohibition on take of a fully protected species, and (3) whether CEQA restricts judicial review to issues raised prior to the close of comments on a draft EIR.

With respect tot he fully protected species issue, the Court is attempting to determine whether the Department complied with the California Fish and Game Code’s prohibition on the “take” of fully protected species when the Department approved conservation measures allowing for the collection and transplantation of the unarmored threespine stickleback from the project site to other suitable areas of the Santa Clara River by a biologist licensed to perform such activities.  Complicating matters, the particular fully protected fish species at issue is listed under both the California Endangered Species Act and the Federal Endangered Species Act, which both allow for collection and transplantation to occur for conservation purposes.  The Justices’ questions and comments did not suggest a clear majority position on this issue. Justices Cuéllar and Liu posed challenging questions to counsel for both sides.  Justice Cuéllar suggested that the Court should defer to the Department unless the Department’s interpretation is clearly wrong. He later suggested, however, that the Court should interpret each term in the definition of “take” in the Fish and Game Code to have independent meaning.  Justice Liu suggested that the Department’s collection and transplantation measure qualified as an allowable conservation measure in the Fish and Game Code (and therefore was not take), but later implied that the measure constituted take.  The Chief Justice and Justice Werdegar expressed concern regarding the practical impact of a decision that state law prohibits conservation measures meant to protect the stickleback and other such fully protected species because the conservation measures themselves constitute “take.”

For discussion of the additional issues the Court is contemplating, please refer to our E-Alert on the case.  The Court is expected to issue its decision in the case by early December 2015.

Nossaman filed an amicus curiae brief in the case on behalf of several public transportation and water agencies.

Court Vacates Final Rule Listing Lesser Prairie Chicken

Posted in Fish & Wildlife Service, Listing

On September 1, the U.S. District Court for the Western District of Texas, Midland Division vacated the U.S. Fish and Wildlife Service’s (“Service”) Final Rule listing the Lesser Prairie Chicken (“LPC”) as threatened.  The Service had published its final rule listing the LPC as threatened on April 10, 2014 amidst significant controversy as to whether the listing was needed.  In conjunction with the decision to list the LPC as a threatened species, the Service issued a “special take rule” under section 4(d) of the Endangered Species Act.  The 4(d) Rule allowed those who participate in the Western Association of Wildlife Agencies (“WAFWA”) Range-wide Plan (“Plan”) to be exempt from the ESA Section 9 prohibition.

WAFWA’s initial intent for developing the Plan was to prevent a LPC listing through voluntary conservation efforts.  As we’ve seen similar efforts have been made for the dunes sagebrush lizard and the greater sage grouse with success in the former instance and yet to be seen in the latter.  After the April 2014 listing, several lawsuits were filed challenging the Service’s decision from all angles. This week’s ruling is the result of a challenge from the Permian Basin Petroleum Association and several New Mexico counties.  Plaintiffs challenged the Service’s listing decision on three grounds: (1) whether the Service properly followed the Service’s own regulations for evaluating conservation efforts; (2) whether the Service provided a rational decision to list the LPC as threatened based on the best available science; and (3) whether the Service properly responded to Plaintiffs’ comments during the rulemaking process.  The court denied Plaintiffs claims on the latter two grounds, but held in favor of Plaintiffs on the first ground and vacated the listing.

In 2003, the Service promulgated a “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” known as the “PECE Policy.”  The PECE Policy sets forth a two part evaluation: (1) whether the conservation plan will be implemented; and (2) whether the conservation effort will be effective.  The two-part evaluation includes consideration of fifteen criteria.  The court found that the Service improperly conducted a PECE evaluation when considering the Plan, and that such failure invalidated the Service’s listing decision.

The court pointed to a number of errors in the Service’s PECE evaluation.  The court questioned the Service’s assumption that not listing the LPC would remove any incentive for industry to enroll in the Plan, and found that the assumption was unsupported and lacking analysis.  This assumption, in turn, carried over to the first prong of the PECE analysis.  The court also found the Service’s assessment of the second PECE prong to be arbitrary and capricious.  In particular, the court focused on the Service’s failure to account for a main component of the Plan – how additional habitat and access to that habitat is created to ameliorate the effects of drought and habitat fragmentation.  The court also emphasized the Service’s failure to analyze the projected effects of the Plan beyond the present and short term.   Finding that the Service’s errors in its PECE analysis of the Plan “tainted critical findings and determinations, resulting in an unwarranted final rule listing the LPC as a threatened species,” the court vacated the listing decision.

The implications of this decision are significant.  The LPC listing significantly affected several industries across the species’ five-state range (Texas, Oklahoma, Colorado, Kansas, New Mexico).  In the Plan’s 2014 annual progress report, WAFWA reported receiving over $45 million in enrollment and impact fees from over 174 different companies participating in the Plan.  It is possible the Service may move to stay vacatur of the listing rule while it appeals the district court’s decision.  The Service could also invoke its emergency listing provisions and emergency list the LPC for 270 days.  However, it is also possible the Service could undertake a new PECE evaluation of the Plan, take into consideration the $45 million in enrollment and increased LPC population over this past year, and issue a rule declining to list the LPC.  For the moment, however, the LPC is not protected under the ESA.

D.C. Court Largely Upholds Loggerhead Sea Turtle Biological Opinion

Posted in Consultation, Court Decisions, National Marine Fisheries Service

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in the BiOp that the activities of the seven fisheries are not likely to jeopardize the continued existence of the Northern Atlantic DPS.  The BiOp was accompanied by an Incidental Take Statement (ITS) authorizing take of up to 483 turtles per year.  The plaintiff challenged several aspects of the BiOp and ITS, asserting:  (1) the Service failed to consider cumulative and aggregate effects (2) the Service failed to consider the effects on loggerhead sea turtle recovery; (3) the BiOp’s ten-year term was inappropriately short (4) the BiOp failed to adequately address climate change impacts; and (5) the monitoring regime proposed in the ITS was inadequate.  The court, in reaching its conclusions, relied heavily on its 2014 opinion considering, and largely denying, a similar challenge to the Service’s Atlantic Sea Scallop Fishery BiOp.

The court found that the Service had appropriately analyzed cumulative effects, aggregate effects, and the effects on the Northwest Atlantic DPS sea turtle recovery.  The court also found that the Service’s decision to limit its BiOp to a ten-year term was not arbitrary and capricious.  The court did, however, remand the BiOp to the Service to address issues related to the Service’s treatment of climate change and ITS monitoring regime.

With regard to climate change, the court found fault with the Service’s treatment of the short term effects caused by climate change.  In particular, the court stated that “the BiOp does not include . . [a] sufficient explanation of the link between the substantial evidence of significant short-term climate change effects, which the BiOp acknowledges, and the agency’s ultimate conclusion that any short-term impacts on loggerheads will be negligible.”  As to the monitoring regime, the court held that the ITS did not sufficiently explain how the Service will monitor whether take limits have been exceeded.  The BiOp called for take estimates to be produced every five years, however under Service regulations, the Service is obligated to reinitiate consultation under section 7 of the Endangered Species Act immediately upon exceeding the incidental take authorized by an ITS.  The court found it unclear how the Service can meet its regulatory obligations where monitoring is done in five-year increments.

The court rejected the plaintiff’s request to vacate the BiOp.  Instead, the court remanded the BiOp and concluded there was a “fair possibility that [the Service] will be able to justify its choices ‘through more thorough and informative explanation.’”