On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published its proposed revisions to the Bald and Golden Eagle Protection Act (“BGEPA”) permit program. The stated intention of these proposed revisions is to improve upon the 2009 regulations establishing a permit program under BGEPA. In 2012, the Service issued an advance notice of proposed rulemaking seeking public input on aspects of the 2009 regulations. In addition to updating the best available science regarding eagle populations, conservation measures and causes of eagle mortality, the proposed revisions seek to include input received from the public about aspects of the 2009 regulations that could be improved. Notably, the revisions introduce of the concept of practicability to the permit issuance criteria, address compensatory mitigation requirements, and emphasize local populations in the “Preservation Standard,” among other changes. Also notably, the proposed revisions reintroduce the maximum permit duration of 30-years. In 2013, the Service issued an amendment to the 2009 eagle regulations extending the 5-year maximum term to 30-years. In 2015, the U.S. District Court for the Northern District of California invalidated the amendment extending the term of BGEPA permits on National Environmental Policy Act grounds. Comments on the proposed rule will be accepted through July 5, 2016.
On April 28, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a revised Biological Opinion and Incidental Take Permit for the Rosemont Copper Mine in Pima County, Arizona. USFWS originally issued a Biological Opinion and Incidental Take Permit for the mine project in 2013. Consultation with USFWS was reinitiated in 2015 primarily due to the listing of additional species not considered during the initial consultation.
The Rosemont Copper Mine is proposed on approximately 955 acres of private land and 75 acres of Arizona State Land Department land, on the east side of the Santa Rita Mountains and approximately 30 miles south of Tucson, Arizona. The mine will impact several species that are listed as threatened and endangered under the Endangered Species Act (ESA). Most notably, however, the mine threatens the remaining wild jaguar (Panthera onca) in the United States, and will impact designated critical habitat for jaguars in the vicinity of Sonorita, Arizona and the Huachuca Mountains.
Relying on its recently adopted critical habitat definition, USFWS concluded that the mine would not destroy or adversely modify designated critical habitat for the jaguar because, while the project would narrow the width of critical habitat by about half in one location, it would not entirely preclude movement of the species throughout designated critical habitat in the United States or impede habitat connectivity with Mexico. Jaguars historically ranged from southern United States to central Argentina: Argentina, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, French Guiana, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, U.S. (Arizona, New Mexico, Texas), Uruguay and Venezuela. Currently, they range from the southwestern United States to northern Argentina, and are found in all countries except for El Salvador and Uruguay.
Analyzing impacts to the species from a global perspective, USFWS also concluded that take of one jaguar in the United States would not jeopardize the species. According to the Biological Opinion, 30,000 jaguars still remain in the wild worldwide.
The validity of the USFWS determination, and its precedential value for future consultations, will likely be tested in an ESA lawsuit.
On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “Service”) announced revisions to their proposed modifications to the Endangered Species Act (“ESA”) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf). In May 2015, the Service announced proposed changes to the petition process for listing a species or seeking to change the listing status of a species under the ESA. 80 Fed. Reg. 29,286 (May 21, 2015) (pdf). The Service’s proposed rule originally required petitions to list species to address only one species, contain information about a species’ current range (including the states and/or countries included in a species’ range), and certify that the petition provided all relevant information regarding the species. The proposed rule also required a petitioner, in every state where the species occurs, to coordinate with the State in the development of relevant information and to serve a copy of the petition on the State resources agency at least 30 days prior to submitting the petition to the Service. As previously detailed here, these proposed changes represented a significant departure from the petition process that currently exists.
The Service stated that the May 2015 proposed rule was intended to both comply with the Service’s obligation under section 6 of the ESA to cooperate with the States to the maximum extent possible, and to maximize efficiency in processing listing and re-classification petitions. In response to comments received on the proposed rule, the Service announced that it was making “small revisions in language in the proposed regulation text” for “clarity and simplicity.” Contrary to this characterization, however, many in the environmental community view the revisions as a significant scaling back or narrowing of the original changes, as reported by E&E’s Greenwire and the Center for Biological Diversity, making the listing petition process more favorable to conservation organizations.
Among the revisions to the previously proposed changes are:
- Less Cooperation with the States. The requirement that petitioners coordinate with States and gather information from State wildlife agencies about a particular species was eliminated. Rather, petitioners must simply provide affected states with notice of their intent to file a petition for listing and/or reclassification at least 30 days prior to submitting the petition to the Service.
- Relaxation of the One Species per Petition Rule. Previously, the Service envisioned restricting a petition to addressing a single species or distinct population segment. However, in the proposed revisions, the Service states that constraining a petition to a single species means constraining the petition to a single “taxonomic species.” Meaning that a petition can include multiple subspecies of the same species or multiple distinct population segments of a species.
- All Relevant Information Not Required. One of the most dramatic revisions is the removal of the requirement that petitioners certify that they have provided all relevant information with a petition to list or reclassify a species. Comments received regarding this requirement asserted that it “would be difficult to implement and enforce.”
The Service also clarified in the revisions that it even if a petition fails to comply with the petition content requirements, it will retain the discretion to process a petition that “substantially complies” with the content requirements. Finally, the Service clarified that its review of a petition will include “all information readily available” and that its ultimate finding that the petitioned action may be, is, or is not warranted will be published in the Federal Register.
Due to the revisions, the Service reopened the public comment period for the proposed regulations. The Service will accept comments until May 23, 2016.
Environmental Management has released an advanced copy of an article I co-authored with Dr. Dennis Murphy entitled, Guidance on the Use of Best Available Science under the U.S. Endangered Species Act. The principle purposes of the article are to identify the types of data, analyses, and modeling efforts that can serve as best available science and consider the role and application of best available science in effects analysis and adaptive management. The article is available free of charge, here.
On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (“BIA”) in a lawsuit involving the grant of a lease to Tule Wind, LLC for construction of the second phase of an industrial-scale wind energy facility. The Protect Our Communities Foundation v. Black, Case No. 14-cv-2261 (S.D. Cal. March 29, 2016). Plaintiffs alleged that BIA’s approval of the project (1) violated the National Environmental Policy Act (“NEPA”); (2) violated the Bald and Golden Eagle Protection Act (“BGEPA”); and (3) violated the Migratory Bird Treaty Act (“MBTA”).
With respect to the BGEPA and MBTA claims, Plaintiffs alleged that by approving the Record of Decision granting the lease to Tule Wind, BIA permitted Tule Wind to violate these two laws given the wind energy facility’s proximity to eagle nests in the region. The court disagreed with Plaintiffs allegations finding (1) the BIA lease does not authorize the killing of eagles or other migratory birds; (2) BGEPA and MBTA are reactive laws and do not require an agency permitting a third party’s otherwise lawful activity to condition approval on obtaining authorization under either law; (3) BIA does not administer or enforce either the MBTA or BGEPA; and (4) individuals are responsible for their own compliance under BGEPA and that an agency need only obtain a BGEPA permit if the take of eagles are likely to result from agency actions implemented by the agency. With respect to the NEPA claim, plaintiffs alleged that BIA was required to prepare a supplemental NEPA analysis. The court disagreed, finding that the approval of the lease was the major federal action and BIA had no further remaining major federal actions requiring supplemental NEPA.
This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA). On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation. On April 20 and 21, the House Oversight and Government Reform Subcommittee on Interior will hold two hearings to discuss delisting under the ESA. Nossaman partner, Robert D. Thornton, will testify at the committee hearing on April 20.
The hearing before the Natural Resources Committee will focus on the recent critical habitat final rules and policy issued by the U.S Fish and Wildlife Service and National Marine Fisheries Service, which we reported about here. Witnesses at the hearing will include Dan Ashe, Director of the Fish and Wildlife Service; Karen Budd-Falen, Senior Partner at Budd-Falen Law Offices, LLC; David Bernhardt, Shareholder at Brownstein Hyatt Farber Schreck, LLP; Robbie LaValley, County Administrator, Delta County; and Dr. Loyal Mehrhoff, Endangered Species Recovery Director at Center for Biological Diversity.
The hearings before the House Oversight and Government Reform Subcommittee on Interior will focus on the challenges that the U.S Fish and Wildlife Service and National Marine Fisheries Service face when making a determination and attempting to delist species under the ESA. In addition to Mr. Thornton, witnesses for the hearings on delisting will include Karen Budd-Falen; Lowell Baier, President Emeritus of the Boone and Crockett Club; Joel Bousman, Chairman of the Sublette County Board of Commissioners; and Director Ashe.
On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA). The court also held that the County’s planned future roadway extension did not violate the ESA, because the roadway project was only in the initial planning stages and the County acknowledged that compliance with the ESA was required before any construction activities could take place. Florida Panthers v. Collier County, Case No. 2:13-cv-612 (M.D. Fla. Apr. 8, 2016).
Under Florida law, a county is required to develop a comprehensive land use plan to guide and control use and future development within the county. This land use plan must be updated every decade. In addition to a land use plan, a county must adopt local regulations to implement the comprehensive plan. Pursuant to Florida law, Collier County adopted a comprehensive land use plan and land use regulations.
Collier County is home to two endangered species, the Florida panther (Puma concolor coryi) and red-cockaded woodpecker (Picoides borealis). In 2013, the Florida Wildlife Federation and Collier County Audubon Society filed a lawsuit alleging that the County’s written policies and regulations relating to the clearing of agricultural land and issuance of building permits for single family residences in certain designated areas, and planned future extension of a roadway violated section 6(f) and section 9 of the ESA. Specifically, the lawsuit alleged that the County’s policies and regulations were less protective than the ESA in violation of section 6(f), and that the policies, regulations, and roadway extension did or would result in a “take” in violation of section 9.
Section 6(f) of the ESA states that “[a]ny State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in [the ESA] or in any regulations which implements [the ESA] but not less restrictive than the prohibitions so defined.” 16 U.S.C. § 1535(f). The district court found that the County’s policies and regulations did not run afoul of section 6(f), because they required a landowner to obtain all other federal and state agency permits prior to clearing agricultural land or constructing a single family residence, and therefore the policies and regulations were complimentary to and not less protective than the ESA.
The district court also found that the policies and regulations did not result in a “take” in violation of section 9, stating: “Collier County’s land clearing authorization and single family home building permits simply authorize the clearing and building if the landowner otherwise complies with federal law. In order for a take to occur, a third party must violate Collier County’s regulations and the ESA. Defendants cannot he held liable for such conduct.”
Finally, with respect to the planned road extension, the district court found that the plaintiffs failed to demonstrate that the preliminary planning actions resulted in a “take” in violation of the ESA. In reaching this conclusion the court noted that the County acknowledged that before any construction activities could take place, the County would need to obtain all necessary federal permits and approvals, including those required under the ESA.
On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal). The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list the wolverine as a threatened species under the Endangered Species Act (ESA). The court’s decision is the newest chapter in what has been a contentious and storied path to a listing decision for the North American wolverine (Gulo gulo luscus). The Service’s decision-making with respect to the wolverine has been challenged at every stage of the ESA section 4 listing process, and, similar to the polar bear, much of the focus has been on whether the anticipated impacts of climate change support a listing. In this instance, several environmental organizations challenged the Withdrawal, arguing that:
(1) the Service unlawfully ignored the best available science by dismissing the threat to the wolverine posed by climate change;
(2) the Service unlawfully ignored the best available science by dismissing the threat to the wolverine posed by genetic isolation and small population size;
(3) the Service unlawfully ignored the best available science by dismissing other threats to the wolverine, including, either independently or in concert with climate change, trapping and infrastructure development;
(4) the Service failed to evaluate whether the inadequacy of existing regulatory mechanisms threatens the wolverine; and
(5) the Service’s “significant portion of its range” policy is invalid on its face and as applied to the wolverine.
Noting that the Withdrawal was likely the result of immense political pressure by several western states (several of which appeared in the case as intervenor-defendants), the court was persuaded by the plaintiffs’ argument that the Service ignored the best available science, noting, “if ever there was a species for which conservation depends on foregoing absolute certainty, it is the wolverine.” The court was emphatic in its conclusions, stating: “No greater level of certainty is needed to see the writing on the wall for this snow-dependent species standing squarely in the path of global climate change.” The court granted plaintiffs’ motion for summary judgment for arguments (1) and (2), declined to address arguments (3) and (4), and rejected plaintiffs’ facial challenge to the Service’s “significant portion of its range” policy. Finally, the court rejected non-governmental intervenors’ argument challenging the Service’s ability to list a subspecies of a species as a distinct population segment. As a result of the court’s decision, the Withdrawal has been vacated and remanded to the Service for further consideration consistent with the court’s order.
On April 5, 2016, the U.S. Fish and Wildlife Service (Service) issued 12-month findings on petitions to list the island marble butterfly (Euchloe ausonides insulanus), the San Bernardino flying squirrel (Glaucomys sabrinus californicus), the spotless crake (Porzana tabuensis), and the Sprague’s pipit (Anthus spragueii) under the Endangered Species Act. The Service concluded that the listing of the island marble butterfly is warranted but precluded by higher priority listing actions, but will place the butterfly on the list of candidate species. The Service also concluded that the listing of the San Bernardino flying squirrel, the spotless crake, and the Sprague’s pipit is not warranted at this time.
The island marble butterfly inhabits San Juan Island in northwestern Washington. According to the Service, stressors such as development, road construction and maintenance, agricultural practices, and herbivory by deer, livestock, and rabbits have led to a loss of habitat and the species’ decline. The Service concluded that while listing is warranted, it is precluded by higher priority listing actions. The Service will develop a proposed rule to list the species as its priorities allow.
The San Bernardino flying squirrel is an arboreal (lives in trees) rodent, active year-round, and primarily nocturnal. It is found in the San Bernardino and San Jacinto Mountains in southern California. Among other measures and activities, the Service concluded that the Western Riverside County and Coachella Valley habitat conservation plans have alleviated stressors on the species and its habitat, thereby making listing not warranted.
The spotless crake is a very small (6 inches), blackish bird with a gray head and neck. The species is found in parts of Australia, the Philippines, and Southeast Asia. In considering whether the American Samoa population of the species warrants listing as a distinct population segment (DPS), the Service determined that the population meets the requirement for discreteness due to its geographic isolation, but is not sufficiently biologically and ecologically significant to qualify as a DPS. Thus, the Service concluded that listing is not warranted.
The Sprague’s pipit is a small bird primarily found in North Dakota, Montana, South Dakota, and Wyoming in the summer, and Arizona, Texas, Oklahoma, Arkansas, Mississippi, Louisiana, and Mexico during the winter. Because stressors on the species, including loss of habitat from conversion of land to breeding grounds and energy development, are not as significant as previously thought, the Service concluded that listing is not warranted.
On March 30, 2016, the U.S. Fish and Wildlife Service (“Service”) issued a final rule designating critical habitat for 125 species listed as endangered or threatened under the Endangered Species Act (“ESA”) on the Hawaiian islands of Molokai, Maui, and Kahoolawe. The rule designated critical habitat for 50 plant and animal species, and revised critical habitat for 85 plant species, totaling approximately 157,002 acres of critical habitat on Molokai, Maui, and Kahoolawe. An additional 25,413 acres of critical habitat that had been proposed on Lanai, along with 59,479 acres on Maui and Molokai, were excluded from the final designation under section 4(b)(2) of the ESA due to economic and other impacts. As a result, 10 species included in the proposed rule received no designation of critical habitat in the final rule.
The Service applied an ecosystem-based approach to determining primary constituent elements of critical habitat, explaining:
[T]he conservation of each [species] depends, at least in part, on the successful functioning of the physical or biological features of their commonly shared ecosystem. Each critical habitat unit identified in this final rule contains the physical or biological features essential to the conservation of those individual species that occupy that particular unit, or areas essential for the conservation of those species identified that do not presently occupy that particular unit. Where the unit is not occupied by a particular species, we conclude it is still essential for the conservation of that species because the designation allows for the expansion of its range and reintroduction of individuals into areas where it occurred historically, and provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the species from the one or more locations where it may presently be found.
The designations include both occupied and unoccupied habitat, the latter of which is intended to support species’ recovery strategies, including habitat protection and establishment of additional populations.
Though the recent critical habitat rules were not yet finalized when this critical habitat designation was proposed, this final rule demonstrates the willingness of the Service to designate unoccupied habitat where that habitat is determined to be essential to species conservation, even though the habitat may not have the physical and biological features essential to the conservation of the species.