On September 15, 2016, the U.S. Fish and Wildlife Service (USFWS) proposed to list as threatened the San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a plant species native to Southern California, under the Endangered Species Act. The proposal is one of dozens under a settlement reached in litigation challenging USFWS’s failure to propose listing or determine that listing is not warranted for 251 candidate species. The proposed rule to list the plant species as threatened ends over 16 years on USFWS’s candidate list; it was listed as endangered under the California Endangered Species Act in 2001.
According to the Federal Register notice, USFWS is accepting public comments on the proposed listing through November 14, 2016.
The San Fernando Valley spineflower is an annual species in the buckwheat (Polygonaceae) family. The spineflower was believed to be extinct since 1929 when it was rediscovered in southeastern Ventura County on the then-proposed Ahmanson Ranch development in 1999. A second population was discovered a year later in northwestern Los Angeles County in the Newhall Ranch development. The Ahmanson Ranch development did not go forward and the property was acquired by the Santa Monica Mountains Conservancy for open space and recreation. The Newhall Ranch development has prepared a spineflower conservation plan proposing to preserve and manage over 75 percent of the spineflower population on the project site. No other populations of spineflower are known.
The proposed rule cites habitat degradation, non-native, invasive plant and animal species, and potentially climate change as ongoing and future threats to the species. USFWS declined to designate critical habitat for the spineflower because information needed to evaluate the impacts of designation is not currently available. A determination on critical habitat is required within one year of the final listing decision.
On September 19, 2016, the National Marine Fisheries Service (NMFS) published proposed rules to list two species of dolphin and two species of guitarfish under the Endangered Species Act (ESA). NMFS proposes to list the Maui’s dolphin (Cephalorhynchus hectori maui) as endangered under the ESA and the South Island Hector’s dolphin (Cephalorhynchus hectori hectori), the common guitarfish (Rhinobatos rhinobatos) and the blackchin guitarfish (Rhinobatos cemiculus) as threatened under the ESA. Both subspecies of dolphin occur only in New Zealand. The two guitarfish species occur in the subtropical waters of the eastern Atlantic and Mediterranean. According to the Federal Register, the public comment periods for the proposed rules close on November 18, 2016.
On September 20, 2016, the U.S. Fish and Wildlife Service (FWS) published a proposed rule to list the ‘i’iwi (Drepani coccinea, also known as the “Hawaiian honeycreeper”) as threatened under the ESA. The ‘i’iwi is found primarily in closed canopy montane wet or montane mesic forests composed of tall stature ohia or ohia and koa tree mixed forest. The species is known to occur on the islands of Kauai, Maui, and Hawaii with populations in various states of decline. A few individual birds have been identified on the islands of Oahu and Molokai, and ‘i’iwi have been extirpated from the island of Lanai. According to the Federal Register, the public comment period for the proposed rule closes on November 21, 2016.
The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) have issued listing decisions on a number of species under the Endangered Species Act (ESA) in recent days, and USFWS has announced notable changes in its recovery strategy for the red wolf.
- On September 7, 2016, USFWS reopened the comment period for its proposed rule to remove the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis) from the list of threatened species. The initial proposed rule emphasized that the States of Montana, Wyoming, and Idaho needed to promulgate regulations managing human-caused mortality of grizzly bears before USFWS would proceed to a final rule, and such state mechanisms have recently been finalized.
- On September 7, 2016, NMFS issued a final rule identifying 14 distinct population segments (DPSs) of the humpback whale (Megaptera novaeangliae). Prior to this rulemaking, the species had been globally listed as endangered. In response to petitions filed by Hawaii Fishermen’s Alliance for Conservation and Tradition, Inc. and the State of Alaska, USFWS initiated a status review of the species. With this final rule, USFWS divides the humpback whale into 14 DPSs, removes the global endangered listing, and in its place lists four DPSs as endangered and one DPS as threatened. The remaining nine DPSs are determined to not warrant listing at this time.
- On September 9, 2016, USFWS proposed to list the Guadalupe fescue (Festuca ligulata)—a plant species from the Chihuahuan Desert of west Texas and Mexico—as an endangered species.
- On September 13, 2016, USFWS issued a final rule listing the white fringeless orchid (Platanthera integrilabia) as threatened. The species is found in Alabama, Georgia, Kentucky, Mississippi, South Carolina, and Tennessee.
- On September 12, 2016, USFWS announced significant changes to its red wolf (Canis rufus) recovery program, which has involved captive breeding and reintroduction of the species in eastern North Carolina as a non-essential experimental population. Following a two-year evaluation of the red wolf recovery program and consideration of new scientific information, USFWS has decided to: (1) secure the captive population of red wolves by doubling that population; (2) determine where potential new sites exist for introduction of additional experimental populations by October 2017; (3) revise the existing experimental population rule to apply to fewer packs within a more restricted range; and (4) complete a status review for the red wolf by October 2017.
In the last several days there has been a flurry of end-of-summer activity, with federal courts issuing a number of Endangered Species Act (ESA) decisions:
- On September 2, 2016, the U.S. District Court for the Northern District of California held that the U.S. Fish and Wildlife Service (FWS) and the California Department of Transportation (Caltrans) violated the ESA by failing to properly consider the impacts of widening Highway 1 on the threatened California red-legged frog (Rana draytonii) and the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia). Pacificans for a Scenic Coast v. California Dept. of Transp., No. 15-cv-02090. Among other things, the court held that Caltrans breached its procedural obligations under section 7 of the ESA by developing a biological assessment with a flawed project description, and FWS violated the ESA by issuing a biological opinion that improperly relied on vague and speculative mitigation measures.
- On September 2, 2016, the U.S. District Court for the District of Montana rejected a challenge to FWS’ determination that listing the Upper Missouri River distinct population segment of Arctic grayling (Thymallus arcticus montanus) under the ESA is not warranted at this time. Center for Biological Diversity v. Jewell, No. CV 15-4-BU-SEH. The court concluded that in declining to list the species, FWS relied on the best available science, considered all appropriate listing factors as mandated by the ESA, and made a reasonable decision that was entitled to deference.
- On August 31, 2016, the U.S. District Court for the District of Idaho held that the U.S. Forest Service did not violate the ESA when it approved the Lost Creek-Boulder Creek Restoration Project, a watershed improvement project in the Payette National Forest. Alliance for the Wild Rockies v. FWS, No. 1:15-cv-00193. Among other things, the court upheld the no-jeopardy biological opinion issued by FWS regarding the impacts of the proposed project on the threatened bull trout (Salvelinus confluentus).
- On August 31, 2016, the U.S. Court of Appeals for the Eleventh Circuit upheld FWS’ biological opinion relating to the impacts of proposed off-road vehicle trails in the Big Cypress National Preserve in Florida. Nat’l Parks Conservation Ass’n v. U.S. Dept. of the Interior, No. 14-15326. Among other things, the court held that FWS properly considered the impacts of the proposed project on the threatened eastern indigo snake (Drymarchon couperi) and endangered Florida panther (Puma concolor).
In addition, on September 2, 2016, FWS issued a draft ESA Compensatory Mitigation Policy. The policy is intended to implement other recent policies issued by the Executive Office and the Department of the Interior that shift from a project-by-project approach to a landscape-scale approach to planning and implementing compensatory mitigation. The policy is also intended to improve consistency in the use of compensatory mitigation as recommended or required under the ESA. According to the notice in the federal register, FWS will accept comments on the draft policy until October 17, 2016.
On August 25, 2016, the California Fish and Game Commission (Commission) voted unanimously to list the northern spotted owl (Strix occidentalis caurina) as a threatened species under the California Endangered Species Act. The owl is already listed as a threatened species under the Federal Endangered Species Act. The Commission’s action increased protections for the species by allowing for state and citizen enforcement actions through the California Department of Fish and Wildlife and the state courts.
In California, the northern spotted owl’s range extends south along the coast from the Oregon border to Marin County, and across the Klamath Mountains to the Cascade Range near the Pit River. According to the species status review prepared by the California Department of Fish and Wildlife, the primary threats to the continued existence of the northern spotted owl are the rapid expansion of the barred owl into the range of the spotted owl and a rapid and accelerating decline in northern spotted owl population size and habitat from wildfire and timber harvest. Additional threats include potential increases in the frequency and severity of wildfires, widespread occurrence of marijuana cultivation on public and private lands, changes in weather patterns, effects of climate change on wildfire patterns and forest vegetation distribution, and the spread of the non-native fungus-like pathogens.
The Environmental Protection Information Center filed its petition to list the owl as threatened or endangered in September 2012. The documentation provided to the Commission in advance of the hearing and a video of the proceeding may be accessed here.
Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding that because the federal approvals triggering the biological opinions were issued by the Federal Energy Regulatory Commission (FERC), the lawsuit had to be filed in the U.S. Court of Appeals in the first instance, not the district court. Maine Council of the Atlantic Salmon Fed’n v. NMFS, Case No. 2:15-cv-00261 (D. Maine Aug. 18, 2016).
Not surprisingly, the docket for most U.S. Court of Appeals is primarily comprised of appeals from district court decisions. However, as a result of federal legislation, there are some actions that skip the district court and head directly to the U.S. Court of Appeals. The Federal Power Act, which, among other things, authorizes FERC to issue licenses for hydroelectric projects, includes a provision vesting review of FERC decisions in the U.S. Court of Appeals.
Pursuant to the consultation requirement in section 7 of the ESA, FERC consulted with NMFS prior to amending the licenses for four hydroelectric projects in Maine. The projects were all located on the Kennebec River, which is home to the federally endangered Gulf of Maine Distinct Population Segment of Atlantic salmon. As a result of the consultation, NMFS issued two biological opinions. Shortly thereafter, four environmental groups filed a lawsuit in district court challenging the biological opinions and NMFS’ findings under the ESA and the Administrative Procedure Act.
The defendants moved to dismiss the lawsuit arguing, among other things, that the district court lacked jurisdiction over the dispute because under the Federal Power Act the lawsuit had to be filed in the U.S. Court of Appeals. In opposition to the motion, plaintiffs asserted that they were challenging NMFS’ failure to comply with the ESA and Administrative Procedure Act, and not FERC’s ultimate decision. The district court rejected this argument, finding parallels in a number of other decisions that concluded the Federal Power Act established exclusive jurisdiction in the U.S. Court of Appeals even if the challenge was based on a failure to comply with another federal statute. Accordingly, the district court concluded that it lacked subject matter jurisdiction and dismissed the action.
On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service (“USFWS”) on the issue of whether an incidental take statement is required for plant species. In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (“CBD”) challenged BLM’s adoption of a Recreational Area Management Plan (“Plan”) for off-road vehicles in the Imperial Sand Dunes Special Recreation Management Area (the “Dunes”) in Imperial County, California. CBD argued, among other things, that USFWS violated the Endangered Species Act (“ESA”) by failing to include protected plant species in the incidental take statement issued for the Plan. The Dunes is home to the Pierson’s milkvetch (Astragalus magdalenae var. peirsonii), a purple-flowered plant, and the desert tortoise (Gopherus agassizii), both of which are listed as threatened under the ESA. After formal consultation under section 7 of the ESA, USFWS issued a biological opinion finding that the Plan was not likely to jeopardize the continued existence of milkvetch or desert tortoise. USFWS’ biological opinion included an incidental take statement for desert tortoise, but not for Pierson’s milkvetch.
The district court held that USFWS is not required to include plant species in incidental take statements, because the ESA does not prohibit incidental “take” of plant species. CBD appealed this ruling, and the Ninth Circuit affirmed the district court’s analysis, finding that the ESA is clear that the definition of “take” does not apply to plant species and therefore an incidental take statement is not required.
CBD also challenged the district court’s grant of summary judgment to BLM on the sufficiency of BLM’s air quality analysis under the National Environmental Policy Act, Clean Air Act, and Administrative Procedure Act. The Ninth Circuit also affirmed the district court’s ruling that BLM’s analysis complied with all applicable laws, and that a difference of opinion over the methodology is insufficient to defeat an agency’s analysis.
The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) removing the San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), and Santa Cruz Island fox (U. l. santacruzae) from the Federal List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA). The Service also reclassified the Santa Catalina Island fox (U. l. catalinae) from an endangered species to a threatened species.
The island fox is a relative of the gray fox. They inhabit the six largest of the eight California Channel Islands and are recognized as distinct subspecies on each of the six islands. The Service originally listed the four subspecies of island fox as endangered in 2004 due primarily to habitat modification by nonnative grazing animals and nonnative plant invasion. However, eradication programs on all islands have greatly reduced the number of nonnative herbivores on the islands and, therefore, the magnitude of impacts to the habitat of the island foxes. While nonnative plant species continue to impact the subspecies’ habitat, the Service has concluded that the threats to the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox have been eliminated or reduced to the point that each of the subspecies no longer meets the definition of an endangered or threatened species under the ESA. The threats to the Santa Catalina Island fox have been reduced to the point that the subspecies can be reclassified as a threatened species.
In addition to the final rule, the Service announced the availability of a final post-delisting monitoring plan for the three species removed from the threatened or endangered species list.
On August 10, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule to list the Texas hornshell (Popenaias popeii), a freshwater mussel, as an endangered species under the Endangered Species Act (ESA). The species has been on the candidate species list for over a decade, and the proposed rule meets a listing determination deadline established by a 2011 multidistrict settlement agreement. In the proposed rule, USFWS determined that the species is in danger of extinction due to habitat loss from loss of water flow, decreased water quality, increased accumulation of fine sediments, and predation, and therefore that listing is warranted. Texas hornshell spawning occurs from March through August, and USFWS cited flowing water needs, water quality sensitivity, drought, climate change, sedimentation, groundwater and surface water withdrawals, and reservoir impoundment impacts on the Texas hornshell in its discussion of the species’ needs and threats. The Texas hornshell is one of a number of Texas freshwater mussel species that face similar threats and remain on the candidate list or are pending status review.
Historically, the Texas hornshell ranged throughout the Rio Grande drainage in New Mexico and Texas in addition to multiple river drainages in Mexico. The species’ current range includes five known populations in the Black River (Eddy County, New Mexico), Pecos River (Val Verde County, Texas), Devils River (Val Verde County, Texas), Lower Canyons of the Rio Grande (Brewster and Terrell Counties, Texas), and Lower Rio Grande near Laredo (Webb County, Texas). While USFWS declined to include a critical habitat designation in the proposed rule, USFWS is seeking information that would inform a future designation as well as other specific information that is currently lacking for the species. Further, the listing proposal recognizes management actions currently underway—including reintroduction into the Delaware River in New Mexico by the New Mexico Department of Game and Fish and management of 200,000 acres of conservation lands in Devils River watershed in Texas by the Texas Parks and Wildlife Department and The Nature Conservancy—and seeks participants for additional recovery efforts in the event of final listing.
In accordance with USFWS policy, the proposed listing identifies certain activities that are unlikely to result in a prohibited “take” of Texas hornshell, including: (1) normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and (2) normal residential landscape activities. USFWS further provided a non-comprehensive list of some activities that may result in a “take” violation, including: (1) unauthorized handling or collecting of the species; (2) modification of the channel or water flow of any stream in which the Texas hornshell is known to occur; (3) livestock grazing that results in direct or indirect destruction of stream habitat; and (4) discharge of chemicals or fill material into any waters in which the Texas hornshell is known to occur.
Photo credit: Joel Lusk, USFWS
On August 4, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule confirming its 2011 revision to the designation of critical habitat for the marbled murrelet (Brachyramphus marmoratus). The Service listed the marbled murrelet as threatened under the Endangered Species Act in 1992. In 1996, the Service designated 3,887,800 acres across Washington, Oregon, and California as critical habitat. In 2003, the Service entered into a settlement agreement with the American Forest Resource Council (AFRC) and Western Council of Industrial Workers, and agreed to review the marbled murrelet’s critical habitat designation and make appropriate revisions after reconsideration of the economic and other relevant impacts of the designation. In 2011, the Service revised its original designation by issuing a final rule removing 189,671 acres in California and Oregon that had been included in the 1996 designation, resulting in a total of approximately 3,698,100 acres of designated critical habitat for the murrelet. In 2012, AFRC filed a lawsuit against the Service after the Service denied a petition to delist the species. The lawsuit also asked that the court vacate the final rule designating critical habitat. The court upheld the Service’s decision to deny the delisting petition, but the Service voluntarily agreed to reconsider the critical habitat designation in light of then-recent case law. The Service’s August 4, 2016 determination confirms the 2011 designation of critical habitat without any changes.
Also on August 4, 2016, the Service issued a final rule amending the format of the Lists of Endangered and Threatened Wildlife and Plants (Lists). The Service‘s stated intent for amending the Lists is to reflect current practices and standards that will make the Lists easier to understand. The changes to the Lists rename and reorganize the Lists’ columns and correct typos and other inconsistencies.