On March 26, 2015, House of Representatives Republican Cynthia Lummis (R-WY) introduced a bill (H.R. 1667) to amend Section 4(b) of the Endangered Species Act (ESA) to require the Secretary of Interior to “make publicly available on the Internet the best scientific and commercial data available that are the basis for reach regulation, including each proposed regulation” for listing decisions regarding endangered or threatened status for wildlife and plant species. H.R. 1667 does not require the Secretary of the Interior to post information that is prohibited from disclosure under state law for the protection of personal information.
H.R. 1667 is identical to Senate Bill 292, introduced by Senator John Cornyn (R-TX) earlier this year. Although H.R. 1667 has been criticized by some as aimed at hindering the federal resource agencies from implementing the ESA, the proposed amendment would increase transparency in agency rulemaking. Existing law does not require studies and other data that are the basis for proposed listing decisions to be made publicly available when a regulation is proposed. The resource agencies are also not required to post a reference list together with the proposed regulation in the Federal Register, or to provide complete citations to studies referenced in proposed regulations. As a result, interested parties are frequently unable to obtain key documentation until after the opportunity to comment on a proposed regulation has already passed. H.R. 1667 would help the public gain timely access to this information.
On March 27, 2015, the National Marine Fisheries Service (NMFS) accepted two petitions asking NMFS to list the Porbeagle shark (Lamna nasus) as threatened or endangered under the Endangered Species Act either throughout the entirety of its global range, or as distinct population segments (DPS) occurring in the Northwest Atlantic, the Northeast Atlantic, and the Mediterranean. (80 Fed. Reg. 16,356 [pdf].) The petitions, filed separately by Wild Earth Guardians and the Humane Society of the United States, were originally rejected as not warranted by NMFS in July 2010. Both petitioners then filed complaints in the U.S. District Court for the District of Columbia, challenging NMFS’ denial of the petitions in August 2011.
On November 14, 2014, the U.S. District Court for the District of Columbia released a memorandum decision (Case 1:11-cv-01414 –BJR Humane Society of the United States v. Blank et al. [pdf]) reversing NMFS’ denial of the petitions and ordering NMFS to prepare a new 90-day finding on the petitions. The court’s ruling became final on December 12, 2014. In accordance with the court’s direction, NFMS undertook a new 90-day review of each of the petitions, using information on Porbeagle sharks globally that became available in the time between the 2010 petitions and the court’s 2014 ruling. NFMS also consulted with fisheries experts within the agency. While the Wild Earth Guardians petition requests that the Porbeagle shark be listed throughout its range or in three separate DPSs, NMFS’ new 90-day finding focuses on only the Northwest and Northeast Atlantic populations. NMFS relied on a report prepared by the Committee on the Status of Endangered Wildlife in Canada in 2014 which concludes that the species appears to be in decline in the Northwest Atlantic due to an ongoing threat from bycatch. The new 90-day finding uses this information to conclude that the actions requested by the petitioners may be warranted and announces the initiation of a species status review by NMFS.
NMFS requests additional information on the historical and current distribution of the shark, its abundance, life history and habitat requirements, genetics and population structure, information on threats to the species, and any ongoing efforts to restore habitat or to protect the species. The comment period on the 90-day finding and status review will be open until May 12, 2015. NMFS will complete its status review and publish its findings on or before December 12, 2015.
In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service’s (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat designation requirement constituted an impermissible construction of the statute. Ctr. for Biological Diversity v. Kelly, Case No. 1:13-cv-00427 (D. Idaho Mar. 23, 2015) (pdf). Specifically, the court found that, contrary to the Service’s longstanding interpretation, the ESA requires critical habitat to be designated in a manner that would facilitate the recovery of a species.
The challenge to the Service’s interpretation of the ESA arose out of the Service’s 2012 final rule designating critical habitat for the endangered Southern Selkirk Mountains population of woodland caribou (Rangifer tarandus caribou). In 2011, the Service published a proposed rule that would designate approximately 375,562 acres as critical habitat for the caribou. In August 2012, however, the Service issued a draft final rule proposing to reduce the critical habitat designation by more than one-third, to approximately 227,100 acres. In November 2012, the Service published a final rule designating only 30,010 acres as critical habitat for the caribou. Shortly thereafter, a number of environmental organizations challenged the Service’s critical habitat designation, alleging that the designation violated the ESA because: (1) the Service failed to explain how the designation would provide for the recovery of the caribou; and (2) the Service was required to provide additional public notice and comment because the final rule was a substantial deviation from the proposed rule.
With respect to the issue of recovery, the court found that the Service’s interpretation “that its critical habitat designation need not ‘prove’ that it will ‘ensure’ the recovery of the species is contrary to the plain language and purpose of the ESA.” The court explained that “the whole point behind designating critical habitat is to identify those physical and biological features of the occupied area and/or those unoccupied areas that are essential to the conservation of a species with the aim of arriving at the point where the species is recovered, i.e., no longer in need of the measures provided for in the ESA.” Accordingly, the court found that the Service’s interpretation was contrary to law, and therefore not entitled to Chevron deference.
On the issue of additional public notice and comment, the court again sided with the plaintiffs, finding that such measures were required because the final was the product of “a fundamental and dramatic change in reasoning based on materials not previously discussed or cited in the Proposed Rule.”
On Tuesday, March 24, 2015, the National Marine Fisheries Service (NMFS) issued a 12-month finding (pdf) concluding that listing a distinct population segment (DPS) of the harbor porpoise (Phocoena phocoena) in the Baltic Sea as endangered or threatened under the Endangered Species Act (ESA) is not warranted. NMFS found that while a discrete subpopulation of harbor porpoises exists in the Baltic region, the subpopulation is not ecologically and biologically significant to the species.
In order to determine that a DPS exists, NMFS must find: (i) that a subpopulation is discrete either because it is markedly separated from other population of the same taxon as a consequences of physical, physiological, ecological, or behavioral factors, or because it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanism exist that are significant; and (ii) that the subpopulation is biologically and ecologically significant to the species. The significance consideration may take into account (1) persistence of the discrete subpopulation in an ecological setting that is unusual or unique for the taxon; (2) evidence that loss of the discrete subpopulation would result in a significant gap in the range of the taxon; (3) evidence that the discrete subpopulation represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or (4) evidence that the discrete subpopulation differs markedly from other populations of the species in its genetic characteristics.
NMFS found that a discrete subpopulation of harbor porpoises exists in the Baltic region based on differences in genetics, skulls, contaminants, and teeth between Baltic harbor porpoises and other populations of the species. However, NMFS found that the discrete Baltic subpopulation was not significant under any of the possible significance factors. This finding stemmed from the fact that Baltic harbor porpoise prefers shallow coastal areas (the same habitat preferred by the general species) and that the Baltic subpopulation comprises only a small geographic area in the total range of the species. Additionally, NMFS found no evidence that the Baltic subpopulation either represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or differs markedly from other populations in its genetic characteristics.
The 12-month finding was issued in response to a 2013 petition filed by WildEarth Guardians, which requested the listing of 81 marine species and subpopulations. NMFS has since found that the petitioned actions may be warranted for 24 species and 3 subpopulations. The findings issued Tuesday addressed only the Baltic Sea harbor porpoise. NMFS is still in the process of evaluating many of the other species for whom listing may be warranted.
In a three-page memorandum decision, the United States Court of Appeals for the Ninth Circuit dismissed Wild Equity and other groups’ appeal from a lower court decision, dismissing as moot a lawsuit alleging that the City and County of San Francisco (“San Francisco”) violated the Endangered Species Act’s take prohibition as a consequence of its continuing operations of the Sharp Park Golf Course. (2015 U.S. App. LEXIS 4854 [pdf].)
The lower court dismissed the action on the grounds that the Fish and Wildlife Service issued a biological opinion and incidental take statement covering golf course operations. Wild Equity appealed, arguing that the incidental take statement does not become effective until the consulting agency – here, the Army Corps of Engineers – takes action by issuing the Clean Water Act (“CWA”) section 404 permit sought by San Francisco. While the appeal was pending, the Corps issued a CWA section 404 permit to San Francisco. Nonetheless, Wild Equity pursued the appeal, arguing in the alternative that the case falls within an exception to the mootness doctrine as a situation capable of repetition, yet evading review.
In a unanimous decision, the Ninth Circuit panel rejected Wild Equity’s contentions concluding that the case did not meet either of the two prongs of the Supreme Court’s capable of repetition exception. The court went on to state: “The issuance of the ITS and CWA permit have [ ] fundamentally changed the legal landscape within which the parties are operating, reducing the likelihood that this issue will arise again between these particular parties.”
Nossaman served as outside counsel to the City and County of San Francisco in this matter.
On April 28-29, 2015, the University of California, Davis will offer a course in adaptive management for environmental professsionals at its Sacramento location. The course will explore the history, policy and legal contexts, and implementation of adaptive management in the United States. Participants will gain hands-on experience in developing conceptual models and theories of change to identify hypotheses that are feasible to test iteratively through the adaptive management process. Among other things, the instructors will address assessment and synthesis of scientific information, specification of success criteria, and adjustment of models and actions, including monitoring. For more information or to enroll, click here. I am teaching the course with Erica Fleishman, who is with the John Muir Institute of the Environment at University of California, Davis.
The Modoc sucker (Catostomus microps), a small fish with a range limited to northeast California and south-central Oregon, was listed as endangered (pdf) in 1985. A recovery plan for the species was adopted by the Service in 1992, and in February 2014, the Fish and Wildlife Service proposed the delisting of the species (pdf). In the proposed rule, the Service made the following determinations:
As a result of the discovery of five populations not known at the time of listing and the documentation of the genetic integrity of populations considered in the 1985 listing rule to have been lost due to hybridization, the known range of the Modoc sucker has increased and it currently occupies its entire known historical range. Additionally, the distribution of occupied stream habitat for populations known at the time of listing has remained stable or expanded slightly since the time of listing, even though the region has experienced several droughts during this time period. Additionally, the relevant recovery objectives outlined in the Recovery Plan for the Modoc sucker have been met, indicating sustainable populations exist throughout the species’ range. Finally, an assessment of factors that may be impacting the species did not reveal any significant threats to the species, now or in the future.
79 Fed. Reg. at 8665. Corbin Hiar recently reported in Greenwire that the final determination to delist hit a roadblock (“How ESA advertising requirement snagged fish delisting,” March 2, 2015 [subscription required]). Specifically, the Service failed to fulfill the requirement under section 4(b)(5)(D) of the Endangered Species Act (ESA) to “publish a summary of the proposed regulation in a newspaper of general circulation in each area of the United States in which the species is believed to occur.” As a consequence, Hiar reports, the species will remain on the list of threatened and endangered species and subject to the ESA’s protections for another year. This outdated requirement is embodied in the statute, and it will remain there along with other provisions in need of reform until Congress has the wherewithal to update the Act.
On March 3, 2015, the National Marine Fisheries Service (NMFS) issued two Federal Register notices – a 90-day finding on a petition (pdf) to list the Common thresher shark (Alopias vulpinus) as either threatened or endangered, and a proposed rule to list (pdf) the Tanzanian distinct population segment (DPS) of the African Coelacanth (Latimeria chalumnae) as a threatened species.
Common thresher shark
On August 26, 2014, Friends of Animals petitioned NMFS to list the Common thresher shark as endangered or threatened under the Endangered Species Act (ESA), or, in the alternative, to delineate six distinct population segments of the Common thresher shark and list each as endangered or threatened. In the 90-day finding NMFS stated that neither the petition nor any information readily available to NMFS provided support for the existence of the six proposed distinct population segments. However, based on information in NMFS files and information presented in the petition, NMFS found substantial evidence to support the finding that listing the Common thresher shark worldwide as either threatened or endangered may be warranted. The 90-day finding states that the may be warranted determination is due to the species’ continued overexploitation associated with bycatch, recreational fishing, commercial fishing, and direct catch associated with the shark fin trade.
The African coelacanth is an armored fish that was thought to be extinct until 1938 and is one of only two species belonging to the order Coelacanthiformes, which have existed for over 65 million years. Prompted by a July 15, 2013 petition filed by WildEarth Guardians, NMFS undertook a status review of the species. In the proposed rule, NMFS describes the range of the species as restricted to three main populations: (1) the Tanzanian population, (2) the Cormoran population, and (3) the South African population. NMFS also states that there is no known genetic exchange between the populations, and that each population is geographically isolated from one another. NMFS states in the proposed rule that the significance prong for a distinct population segment is met because there are only three known populations of the fish, and the loss of any one population would constitute a significant gap in the species’ range. NMFS also states that the Tanzanian population of coelacanth is faced with moderate threats due to ongoing bycatch and plans to develop a deep water port in coastal waters where the fish occurs. As the moderate threats were only identified for the Tanzanian DPS, NMFS has proposed to list only the Tanzanian DPS as threatened under the ESA.
On February 24, 2015, the National Marine Fisheries Service (NMFS) announced a 12-month finding (pdf) on the Center for Biological Diversity’s (CBD) petition to revise the critical habitat designation for the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA). The 12-month finding describes how NMFS intends to proceed with the revision: completing data collection and analysis, identifying areas that meet the definition of critical habitat, balancing the benefits of any designation against the benefits of exclusion, and developing a proposed rule for the revised critical habitat for public comment.
NMFS issued a final rule (pdf) designating approximately 2,560 square miles of critical habitat for the Southern Resident killer whale in November 2006. The final critical habitat designation identified three specific areas: (1) the Summer Core Area in Haro Strait; (2) Puget Sound; and (3) the Strait of Juan de Fuca. At the time of the designation, however, NMFS noted that there was insufficient data on the species’ distribution throughout and use of the coastal and offshore areas in the Pacific Ocean. Although NMFS recognized that the whales occupied Pacific Ocean waters for a portion for the year and considered them part of the area occupied by the species, NMFS declined to designate the waters as critical habitat because the data informing whale distribution, behavior, and habitat use were insufficient to define “specific areas” as required by the ESA.
On January 21, 2014, CBD petitioned NMFS for a revision to the critical habitat designation, proposing that the designation be expanded to include the Pacific Ocean region between Cape Flattery, WA, and Point Reyes, CA, extending approximately 47 miles offshore. The petition also requested that NMFS adopt as a primary constituent element, for both currently designated critical habitat and the proposed revised critical habitat, protective in-water sound levels.
CBD’s petition listed recent sources of information on the Southern Resident killer whales’ habitat use along the West Coast of the United States, particularly data from NFMS’ Northwest Fisheries Science Center programs, including satellite tagging conducted in 2012 and 2013. NMFS engaged in research activities to fill data gaps about coastal habitat use following the 2006 critical habitat designation. In 2011, NMFS completed a 5-year review of the Southern Resident DPS, recommending that NMFS increase knowledge about the coastal distribution, habitat use, and prey consumption of the species to inform its critical habitat designation.
On Friday, February 20, a federal district court denied (pdf) a motion to dismiss, thereby breathing life into an Endangered Species Act (ESA) challenge brought against the Export-Import Bank of the United States (Bank) for funding activities in and around Australia’s Great Barrier Reef World Heritage Area. See Center for Biological Diversity, et al. v. Export-Import Bank of the United States, No. C 12-6325 SBA (N.D. Cal. Feb. 20, 2015). As previously reported on this blog, the case alleges that the Bank violated section 7 of the ESA by failing to consult with federal wildlife agencies concerning the potential effects of constructing and operating two liquefied natural gas projects on four listed species and their habitats. In support of their motion to dismiss, Defendants argued that the Bank had taken no “agency action” that triggers section 7 consultation because the project occurs entirely within a foreign country and its territorial waters. In other words, Defendants argued that the project falls outside the geographic scope of section 7, which only applies to actions within the territory of the United States and “upon the high seas.” The Court rejected this argument, holding that facts alleged in the Plaintiffs’ complaint sufficiently supported an inference that the project being funded by the Bank includes shipping activities that occur “upon the high seas.”