Nevada Solar Project Survives Ninth Circuit Review Despite Impacts to Tortoise Connectivity

On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii).  The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project violated the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act and were arbitrary and capricious.

The Silver State South Solar Project (Project) is a 2,400-acre utility-scale solar power facility on federal land managed by BLM in the Ivanpah Valley.  The Project is located within the federally threatened desert tortoise Eastern Mohave Recovery Unit, one of four such units designated in the Desert Tortoise Recovery Plan. The Ivanpah Valley is identified as one of three areas of high-quality habitat within the Eastern Mohave Recovery Unit.  Critical habitat is designated for tortoise in the Ivanpah Valley; however, the Project site is not within the boundaries of designated critical habitat.

The plaintiff challenged FWS’s issuance of and BLM’s reliance upon a biological opinion that concluded the Project (i) was “not likely to adversely affect” the tortoise’s critical habitat and (ii) would not jeopardize the continued existence of the tortoise.  Specifically, the plaintiff challenged the Project’s acknowledged potential reduction in connectivity between tortoise critical habitat areas within the Ivanpah Valley, maintaining that such a reduction is incompatible with the findings in the biological opinion.

The Court first rejected plaintiff’s argument that merely by including the entire Ivanpah Valley, including designated critical habitat, within the Project’s “action area,” the biological opinion is required to analyze the Project’s effects on critical habitat:  “[T]he inclusion of critical habitat in a biological opinion’s action area does not automatically trigger the duty to conduct an adverse modification analysis; the relevant inquiry remains whether the proposed action is ‘likely to adversely affect’ critical habitat.”  The Court upheld FWS’s concurrence with BLM’s “not likely to adversely affect” tortoise critical habitat finding as consistent with the regulations governing consultation under section 7 of the ESA.

Next, the Court considered plaintiff’s allegations that reduced connectivity constitutes “adverse modification” of critical habitat.

As an initial matter, the Court found that the plain language of the ESA requires an adverse modification of critical habitat consists of two elements, (i) a “modification” of the habitat that is (ii) “adverse.”  The Court then examined the 1986 regulation defining “adverse modification,” invalidated by the Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), and the 2016 replacement regulation, both of which require a “direct or indirect alteration” that “appreciably diminishes the value of the critical habitat.”

The Court ruled that under the statute and the regulations, there is “[a] threshold requirement that there must be an alteration to the critical habitat” in order to make a finding of adverse modification.  Consequently, the Court held that the Project’s reduced connectivity does not constitute adverse modification because the Project did not alter and would not result in an alteration to tortoise critical habitat; it is an impact on the species, and properly evaluated under the jeopardy prong of ESA section 7(a)(2).

The Court also found that FWS’s comments and recommendations on the draft National Environmental Policy Act document regarding the Project’s adverse impacts on recovery and connectivity within the Ivanpah Valley were not inconsistent with its no jeopardy/no adverse modification determinations in the biological opinion.

Ninth Circuit Upholds Forest Service’s Construction of New Roads in Grizzly Bear Habitat

On May 17, 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling by the U.S. District Court for the District of Montana and upheld the U.S. Forest Service’s (Forest Service) decision to construct 4.7 miles of new roads in the Kootenai National Forest. The Kootenai National Forest is managed pursuant to the Forest Service’s Kootenai National Forest Plan (Forest Plan) that includes access-related amendments prohibiting any “net permanent increase[] in linear miles of total roads.”  These Forest Plan access amendments incorporate a 2011 Biological Opinion and Incidental Take Statement (ITS) for the threatened grizzly bear (Ursus arctos horribilis) that were developed in consultation with the U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act (ESA).  As incorporated into the Forest Service’s revised Forest Plan, the ITS permits incidental take of grizzly bears so long as the total linear miles of roads do not permanently increase in certain designated areas likely used by the species.

In 2013, the Forest Service approved the 4.7 miles of new roadway in connection with its approval of the Pilgrim Creek Timber Sale Project (Project), which requires the construction of new roadways for use by Forest Service staff and government contractors during implementation of the Project. The Project plan includes the installation of a barrier that will close off the new roads to all motorized travel following conclusion of the Project, although the Forest Service’s Record of Decision (ROD) approving the Project stated that “[t]hese closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations.”

In 2013, Plaintiff Alliance for the Wild Rockies brought suit, claiming that the Project would create a net permanent increase in road miles in violation of the Forest Plan access amendments and would therefore violate: (1) the National Forest Management Act (NFMA); (2) the ESA, by failing to comply with the ITS limitations; and (3) NEPA, by incorrectly stating in the Environmental Impact Statement (EIS) for the Project that the Project will comply with the Forest Plan access amendments. The District Court enjoined the Project, pending preparation of a supplemental EIS, due largely to the ROD’s statement indicating that the new roads’ closure may not be permanent.  The Forest Service then issued a Clarification/Amendment of the ROD in 2014 to make it clear that all new roads constructed for the Project will be closed with a permanent closure device.  Based upon this ROD Clarification/Amendment, the District Court lifted the injunction, and the Plaintiff appealed.

The Ninth Circuit easily affirmed the lower court’s grant of summary judgment in favor of the federal defendants, ruling that the Forest Service complied with the NFMA, ESA, and NEPA. The court held that the Forest Service was not arbitrary and capricious in the implementation of its Forest Plan or its interpretation that the planned 4.7 miles of new roads do not count toward the prohibited net permanent increase in new roads because they instead constitute an acceptable, temporary increase in road miles that is permitted by the Forest Plan amendments.

U.S. District Court Finds EPA Erred in Approving Pesticides Known To Impact Endangered Species

On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (“EPA”) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow continued use of the pesticides violated by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”) because the chemical compounds are known to cause harm to both pollinators and other animals, including threatened and endangered species.

Under FIFRA, the EPA has the authority to immediately suspend the use of a pesticide that poses an “imminent hazard,” which may include a threat posed to the survival of a species that has been declared threatened or endangered under the ESA.  Plaintiffs argued that EPA acted arbitrarily and unreasonably when it failed to address the threat posed to threatened and endangered species by pesticides containing clothianidin.  Because plaintiffs failed to provide any studies or data to back up the assertion that pesticides would have an adverse effect on threatened or endangered species, the court found that EPA was entitled to summary judgment on the FIFRA claim in this regard.

Plaintiffs also alleged that EPA violated the ESA when it failed to consult with the U.S. Fish and Wildlife Service (the “Service”) about the pesticides’ potential impact on threatened or endangered species or their critical habitat before approving the pesticides’ registration and use.  In response, EPA alleged that plaintiffs lacked standing to pursue their ESA claims, and the intervenors in the case alleged that the court lacked jurisdiction to hear the ESA claims at least as to five of the pesticide approvals at issue.  Because EPA held a public hearing and comment period before approving five of the pesticides, the court found that the jurisdictional limitations of FIFRA barred consideration of challenges to EPA’s approvals of those five pesticides, but that the court properly had jurisdiction to consider the challenges to the remaining 68 EPA pesticide approvals.  The court, however, rejected EPA’s argument that plaintiffs lacked standing to pursue their ESA claims, in light of the multiple declarations submitted by plaintiffs in support of standing.

EPA additionally argued that eleven of the approvals were not “agency actions” that would trigger the ESA’s consultation requirements because they were conversions from conditional to unconditional registrations – not new registrations or approvals.  However, because EPA retained discretion to change or influence the pesticide’s use when converting a registration from conditional to unconditional, the court found that those eleven approvals were agency actions subject to the ESA’s consultation requirements.  The court further found that nine of the “approvals” were not, in fact, agency actions, but were notices of pending applications that are not subject to ESA consultation requirements.  In total, the court found that EPA failed to consult on the approvals or registrations of 59 pesticides as required by the ESA, but that EPA had not violated the ESA when it approved 14 other pesticides because those approvals were not agency actions or because FIFRA barred the challenges.  The court otherwise denied plaintiffs’ motion for summary judgment, and ordered the parties to submit a briefing schedule regarding the appropriate remedies for EPA’s failure to consult with the Service.

Ninth Circuit Upholds the U.S. Fish and Wildlife Service’s Determination on the Whitebark Pine

On April 28, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Montana’s finding that the U.S. Fish and Wildlife Service’s (Service) determination that listing the whitebark pine (Pinus albicaulis) as a threatened or endangered species is “warranted but precluded.”  Wildwest Inst. v. Kurth, No. 14-35431 (9th Cir. Apr. 28, 2017). Two environmental groups, Wildwest Institute and the Alliance for the Wild Rockies (Plaintiffs), filed a lawsuit challenging the Service’s determination, asserting that the Service violated the Endangered Species Act (ESA) by (1) not strictly following the Service’s listing priority guidelines; (2) considering factors outside of the guidelines; and (3) finding that listing the whitebark pine was precluded by species with a lower degree of threat without providing individualized explanations for each of the precluding species.  Plaintiffs also argued that the Service inappropriately relied on budget limitations and court-ordered listing deadlines.

Plaintiffs’ arguments focused on the legislative history of the ESA and the listing priority number that the Service had assigned to the whitebark pine as compared to other species that precluded its listing.  The Ninth Circuit rejected Plaintiffs’ interpretation of the legislative history, finding instead that the relevant portion of the ESA is clear on its face.  The court then found that the ESA and the Service’s listing priority guidelines provided room for flexibility, and that nothing in the ESA, legislative history or guidelines requires the Service to make its listing decisions based solely on the listing priority number assigned to a species.  The Ninth Circuit also concluded that the Service’s concise discussion of the other precluding species was appropriate.  Finally, the Ninth Circuit noted that it was appropriate for the Service to consider budgets and court-ordered deadlines for other species when making a “warranted but precluded” finding.

ESA Round-Up – April 2017

Despite a slow start to 2017, largely due to the White House Memorandum delaying the effective date of new regulations, the U.S. Fish and Wildlife Service (Service) is picking up steam.  In April 2017, the Service initiated the following activities under the Endangered Species Act (ESA):

  • On April 20, 2017, the Service initiated five-year status reviews for 138 species in Hawaii, Oregon, Washington, and California. The Service is conducting the status reviews pursuant to section 4(c)(2) of the ESA, which requires the Service to review each listed species’ status at least once every five years. The Service is requesting new information regarding the species by June 19, 2017.
  • On April 19, 2017, the Service issued 90-day findings on petitions to list the Florida black bear (Ursus americanus floridanus) as threatened under the ESA and the Mojave population of the desert tortoise (Gopherus agassizii) as an endangered species under the ESA. Based on its review, the Service concluded that the petitions did not present substantial scientific or commercial information indicating that the petitioned actions may be warranted.
  • On April 17, 2017, the Service initiated five-year status reviews for eight endangered animal species. As described above, the Service is required to conduct the status reviews pursuant to section 4(c)(2) of the ESA. The Service is requesting that information regarding the species be submitted by June 16, 2017.
  • On April 7, 2017, the Service withdrew a proposed rule to list the headwater chub (Gila nigra) and a distinct population segment (DPS) of the roundtail chub (Gila robusta) from the lower Colorado River basin as threatened species under the ESA. The Service explained that the withdrawal was based on a thorough review of the best scientific and commercial data available, which indicated that the headwater chub and the roundtail chub DPS are not discrete taxonomic entities and do not meet the definition of a species under the ESA. According to the Service, the fish are now recognized as a part of a single taxonomic species—the roundtail chub (Gila robusta). The Service therefore concluded that the species were not listable species under the ESA.
  • On April 5, 2017, the Service issued a final rule removing the scarlet-chested parrot (Neophema splendida) and the turquoise parrot (Neophema pulchella) from the Federal List of Endangered and Threatened Wildlife. After reviewing the status of the species, the Service concluded that the threats to the parrots had been eliminated or reduced, and that the species are not currently in danger of extinction, and are not likely to again become in danger of extinction within the foreseeable future in all or a significant portion of their ranges.
  • On April 5, 2017, the Service issued a proposed rule to list the yellow lance (Elliptio lanceolata) as a threatened species under the ESA. The yellow lance is a freshwater mussel native to Maryland, Virginia, and North Carolina. According to the Service, the largest threats to the future viability of the yellow lance relate to habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity.

Court Sends EPA Back to the Drawing Board on Temperature Limits in Oregon Waters

On April 11, 2017, the United States District Court for the District of Oregon ruled on parties’ objections to a federal magistrate judge’s findings and recommendations in a case challenging the U.S. Environmental Protection Agency’s (EPA) approval of temperature increases for over a dozen water bodies in Oregon under the Clean Water Act (CWA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA). The court ruled against EPA and overturned the magistrate judge’s findings and recommendations with respect to environmental plaintiff’s challenges to EPA’s approval of temperature total maximum daily loads (TMDLs) because it failed to consult under ESA section 7.

In 2003, the State of Oregon revised its existing water quality standards to establish new designated uses with regard to trout and salmon species, many of which were ESA-listed as threatened or endangered, and to incorporate natural conditions criteria for temperature. The natural conditions criteria allowed Oregon to increase temperature limits comparable to those that existed naturally before human interference over the previously established biologically based criteria.

Following issuance of biological opinions from the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) concurring that the revised water quality standards “may affect but are not likely to adversely affect” listed species, the EPA approved the revised water quality standards in 2004 and went on to approve TMDLs from 2004 through 2010. In 2012, the magistrate judge held the section 7 consultations on the revised water quality standards were illegal and vacated the associated biological opinions.

The district court overturned the magistrate judge and held that EPA could not rely on the section 7 consultation conducted for the 2003 revised water quality standards to satisfy the consultation requirements for the TMDLs, even though the TMDLs were approved before the court invalidated the biological opinions in 2012. Further, EPA’s determination that two of the TMDLs would have “no effect” on listed species could not be extended to the rest of the approved TMDLs for which EPA made no effect determination.  “EPA was required to make separate findings [for] each of the TMDLs”, e.g., “no effect,” “may affect, but not likely to adversely affect”, or “may adversely affect” and seek section 7 consultation with the Services for any but a “no effect” determination.

The court agreed with the magistrate judge that EPA had violated the CWA and the APA by approving temperature TMDLs based on the natural conditions criteria, which EPA failed to demonstrate were protective of the designated uses associated with trout and salmon.

D.C. Circuit Removes Hurdle to Northern Spotted Owl Critical Habitat Designation Challenge

On April 11, 2017, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held in Carpenters Industrial Council v. Zinke, 2017 U.S.App.LEXIS 6175, that a lumber company trade association had standing to challenge a U.S. Fish and Wildlife Service (“USFWS”) regulation designating critical habitat for the northern spotted owl (Strix occidentalis caurinan).  Reversing the district court’s decision, the D.C. Circuit found that plaintiff demonstrated a substantial probability that the regulation would decrease the supply of timber from forest lands where the association’s members obtain timber, thereby causing the members to suffer economic harm.  The opening paragraphs of the decision suggest that the D.C. Circuit was struck by the magnitude of the region affected by USFWS’s regulation.  “To put the agency’s action in perspective,” the D.C. Circuit stated, “the designated critical habitat is roughly twice the size of the State of New Jersey.  For Easterners, imagine driving all the way up and then all the way back down the New Jersey Turnpike, and you will get a rough sense of the scope of the critical habitat designation here.”

The D.C. Circuit applied what the Court itself characterized as a “common sense” approach to whether plaintiff had demonstrated that the federal government caused the alleged economic harm.  The Court applied a three-part test, asking whether there is a substantial probability that (1) the challenged action will cause a decrease in supply of raw material from a particular source; (2) the plaintiff manufacturer obtains raw material from that source; and (3) will suffer economic harm from a decrease in the supply of raw material from that source.  The D.C. Circuit found that the association made the required showing through a declaration documenting that there would be a reduction in lumber supply from a primary source of lumber, and that the association’s members would be unable to meet customer demand and maintain current production levels.

The Obama Administration-era northern spotted owl critical habitat regulation designated 9.5 million acres of forest lands in California, Oregon, and Washington.  The D.C. Circuit’s decision means that the parties and the lower court can proceed to the merits of the challenge.

Manatee Reclassified from Endangered to Threatened

On April 5, 2017, the U.S. Fish and Wildlife Service (Service) issued a final rule in the Federal Register reclassifying the West Indian manatee (Trichechus manatus) from endangered to threatened under the Endangered Species Act.  Despite the reclassification, the Federal Register explained that while some significant threats have been reduced or eliminated, there are still a number of threats that remain, such as habitat loss and poaching, and that implementation of recovery actions are needed for the manatee to fully recover.

The reclassification was the result of a 5-year status review by the Service that included a recommendation to reclassify the manatee, and a subsequent petition by the Pacific Legal Foundation requesting the reclassification.

Tenth Circuit Court of Appeals Reinstates Special Rule Regulating Take of Utah Prairie Dog

On March 29, 2017, the U.S. Court of Appeals for the Tenth Circuit held (PDF) that Congress has authority under the Commerce Clause to regulate the take of the Utah prairie dog (Cynomys parvidens).  Because Congress has this authority, it could authorize the U.S. Fish and Wildlife Service (Service) to do the same.

The Utah prairie dog lives only in Utah.  Approximately 70 percent of the species’ population is on nonfederal land.  It was originally listed as an endangered species under the Endangered Species Act (ESA) in 1973, but was reclassified as threatened in 1984.  At the time it was reclassified, the Service issued a special rule to regulate its take (“Special Rule 4(d)”).  See 50 C.F.R. § 17.40(g).  Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting: (1) permissible locations of such take to agricultural lands, properties within 0.5 miles of conservation lands, and “areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites[;]” (2) the permissible amount of such take; and (3) the permissible methods of such take.  People for the Ethical Treatment of Property Owners (“PETPO”) filed an action alleging that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate take of the Utah prairie dog (an intrastate species) on nonfederal land.

As an initial matter, the Tenth Circuit affirmed the district court’s holding that PETPO had standing to challenge Special Rule 4(d) because its alleged injuries were redressable.  PETPO’s challenge implicated the ESA’s grant of authority to the Secretaries of the Interior and of Commerce to issue regulations extending take prohibitions to threatened species.  If Congress lacked such authority under the Commerce Clause or the Necessary and Proper Clause, then the ESA could not authorize any regulation of prairie dog take.

On the merits of PETPO’s challenge, the Tenth Circuit concluded that the district court erred in holding that Special Rule 4(d) is not authorized by the Commerce Clause.  The district court held that the Commerce Clause did not authorize the regulation because it did not have a substantial effect on interstate commerce.  The Tenth Circuit disagreed.  It noted that the Commerce Clause authorizes regulation of noncommercial, purely interstate activity where it is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce.  “Therefore, to uphold the challenged regulation . . . [the court] need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.”

The Tenth Circuit held that Special Rule 4(d) was within the broader regulatory scheme of the ESA’s protections, including Congress’ broad authorization to use regulations to extend the take protections to threatened species.  Because the court concluded that the ESA has a substantial relationship with interstate commerce, and because Congress had a rational basis to believe that regulating take of purely intrastate species like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme, the Tenth Circuit held that the “regulation on nonfederal land of take of a purely intrastate species, like the Utah prairie dog, under the ESA is a constitutional exercise of authority under the Commerce Clause.”  Because Congress had the authority to implement the challenged regulation, it could delegate that authority to the Secretary of Interior to promulgate regulations to achieve that end.

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