U.S. Fish & Wildlife Service Nixes Proposed Delisting of Central Valley Beetle Species

On September 17, 2014, the U.S. Fish and Wildlife Service (Service) withdrew (pdf) its proposal (pdf) to remove the valley elderberry longhorn beetle (Desmocerus californicus dimorphus) from the Federal List of Threatened and Endangered Species.  While this means the beetle will continue to be protected as a threatened species under the Endangered Species Act (ESA), the Service did reduce the area in which the species is presumed to occur.

The beetle was listed as threatened and critical habitat designated, in 1980 (pdf).  Until recently, the beetle’s range was believed to include much of the San Joaquin and Sacramento Valleys, from Shasta County in the northern Sacramento Valley to Kern County in the southern San Joaquin Valley, California; but occurrences were thought to be rare.  In its 2006 Five-Year Review (pdf), the Service recommended delisting the beetle, generally because the beetle was determined to be more abundant and widespread than documented at the time of listing.

In 2010, the Service received a petition to delist the beetle.  In 2012, the Service published a proposal to delist the beetle in which the Service recommended eliminating ESA protections for the beetle based on increased beetle populations and ongoing protections afforded to the species’ riparian habitat.

The Service’s 2014 withdrawal of the delisting proposal documents a reduction in the beetle’s distribution based on public comment and scientific peer review.  The Service describes its current estimates as, “the most accurate assessment of the presumed extant occurrences of the valley elderberry longhorn beetle.” 

According to the Service’s September 16 news release (pdf) announcing the withdrawal of the proposed delisting, the species’ range will no longer include Kern, Kings and Tulare counties.  And as such, “the regulatory protections of the ESA [afforded to the beetle] will now be applied to a smaller area.”  However, neither the notice nor the news release makes clear how the Service’s act of redefining the species’ range will affect the Section 9 prohibition against “take” of the beetle if it is found outside of the defined range.

The beetle’s reduced range, combined with threats from invasive plants, pesticides, and global climate change, are identified as the principal reasons for the beetle’s continued listing as a threatened species.
 

Georgia Plant Listed and 732 Acres Designated

On September 12, 2014, the U.S. Fish and Wildlife Service (Service) published notice of its final rule listing the Georgia rockcress (Arabis georgiana) as a threatened plant species under the Endangered Species Act.  On the same day, the Service published notice of its final rule designating 732 acres within Georgia and Alabama as critical habitat for the species.  Designated critical habitat for the Georgia rockcress includes riparian and river bluff habitat within Gordon, Floyd, Harris, Muscogee and Clay Counties in Georgia and Bibb, Dallas, Elmore, Monroe, Sumter, and Wilcox Counties in Alabama.  In the final rule the Service stated that Georgia rockcress is threatened throughout all of its range and that habitat degradation, including disturbance that promotes invasion of nonnative weeds, is the most serious threat to the species’ continued existence.  

 
 

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U.S. Fish and Wildlife Service Extends Protection for Canada Lynx

 On Friday, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) revising the critical habitat designation for the contiguous United States distinct population segment (DPS) of the Canada lynx (Lynx canadensis) and revising the boundary of the Canada lynx DPS. The revised critical habitat designation consists of approximately 38,954 square miles of critical habitat in five units in Idaho, Maine, Minnesota, Montana, Washington, and Wyoming.

The Service’s final rule also rescinds the existing State-boundary-based definition of the Canada lynx DPS and replaces it with a definition that extends the Endangered Species Act’s (ESA) protections to the lynx “where found” in the contiguous United States. This extended protection recognizes the lynx’s long-distance dispersal capability and tendency to occur in areas well outside of its typical habitats to ensure that the species receives the ESA’s protection wherever it occurs in the United States.

The revisions are intended to fulfill the Service’s obligations arising under two separate settlement agreements to address issues raised by two courts regarding the previous critical habitat designation.

U.S. Fish and Wildlife Service Lists Two Florida Plants as Endangered

Last Thursday, the U.S. Fish and Wildlife Service (Service) issued a final rule listing two plants as endangered under the Endangered Species Act (ESA). The two species, Florida brickell-bush (Brickellia mosieri) and Carter’s small-flowered flax (Linum carteri carteri), are both native to Miami-Dade County, Florida. According to the Service, the species’ habitat has suffered degradation as a result of inadequate fire management, nonnative plant species, and human activities. The brickell-bush is known to be present in just 17 sites, while Carter’s small-flowered flax is known to be present in a mere seven sites.

The listings were made as part of a 2011 settlement agreement between the Service and the Center for Biological Diversity, in which the Service agreed to speed up its listing decision process for over 700 species found throughout the United States.

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House Committee Holds Hearing on Proposed Endangered Species Act Amendments

This morning, the House Committee on Natural Resources is holding a legislative hearing on six proposed amendments to the Endangered Species Act (ESA).  The live video webcast of the hearing can be accessed here.  The six proposed amendments are:

H.R. 1314 - establishing a procedure for approval of certain types of settlements

H.R. 1927 - providing congressional direction for implementation of the ESA as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California

H.R. 4256 - requiring the wildlife agencies to include the number of species on State and private lands as determined by the State in counting the number of a species in a State for purposes of determining whether the species is an endangered or threatened species

H.R. 4284 - amending the ESA to encourage greater State input and authority over species and habitat management by allowing States to propose and implement State Protective Action before species are listed under the ESA

H.R. 4319 - requiring the Secretary of the Interior to publish and make available for public comment a draft economic analysis at the time a proposed rule to designate critical habitat is published

H.R. 4866 - reversing the Department of Interior's listing of the lesser prairie chicken as a threatened species under the ESA, preventing further consideration of listing such a species as a threatened species or endangered species under the ESA pending implementation of the Western Association of Fish and Wildlife Agencies' Lesser Prairie-Chicken Range-Wide Conservation Plan and other conservation measures

 

 

U.S. Fish and Wildlife Service is Accepting Comments on Revised Draft Recovery Plan for the Bull Trout.

Yesterday, the U.S. Fish and Wildlife Service (USFWS) posted a Notice of Availability of the Revised Draft Recovery Plan for the Coterminous United States Population of Bull Trout (pdf). The plan is intended to manage threats and ensure sufficient distribution and abundance of bull trout (Salvelinus confluentus) so that protection under the Endangered Species Act (ESA) is no longer required.

The bull trout was listed as threatened under the ESA in 1999. USFWS previously prepared three separate recovery plans for the species: (1) a 2002 draft plan to address populations within the Columbia, Saint Mary-Belly, and Klamath River basins; (2) a 2004 draft plan for the Coastal-Puget Sound drainages in western Washington; and (3) a 2004 draft plan for the Jarbridge River in Nevada. None of these plans were finalized. The revised draft plan incorporates and builds upon new information regarding bull trout life history and revises the recovery criteria proposed in the 2002 and 2004 draft plans to deemphasize achieving targeted point estimates of abundance of adult bull trout in each core area. Instead, the revised plan measures success by focusing on managing threats to the bull trout, such as non-native fish species, as well as encouraging habitat enhancement. The revised plan addresses core populations in six recovery units located in portions of Oregon, Washington, Idaho, Nevada and Montana.

USFWS’s proposal is reportedly concerning to conservation groups, including Trout Unlimited and Alliance for the Wild Rockies, which urge incorporation of measurable population objectives, such as overall population size and number of adults and juveniles and occupied miles of stream, in the revised recovery plan. These groups believe that these data are more accurate indicators of bull trout recovery than data on the existence of threats.

The public comment period relating to the plan closes on December 3, 2014.

 

Listing May Be Warranted for Clownfish

In a 90-day finding (pdf) published this morning in the Federal Register, the National Marine Fisheries Service (NMFS) found that the listing of the orange clownfish (Amphiprion percula) "may be warranted" under the Endangered Species Act.  This finding was based in large part on the threat from "bleaching and subsequent loss of anemone habitat resulting from ocean warming" to three species of anemone that host the orange clownfish.  NMFS is now conducting a full status review of the species, and it has solicited scientific and commercial information pertaining to the species with respect to a variety of issues, including, among others:  (1) the historical and current distribution and abundance of the species throughout its range (2) historical and current population trends; (3) life history and habitat requirements; and (4) past, current, and future threats.  According to the notice in the Federal Register, information and comments must be received by November 3, 2014.

In the same 90-day finding, NMFS also found that the listing petition failed to "present substantial scientific or commercial information indicating" that listing may be warranted for six other Indo-Pacific fish species.

District Court Rules Grizzly Bears Trump Montana's Plan to Log Forest Lands to Fund Schools

On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended the associated Endangered Species Act Section 10(a)(1)(B) Permit(Permit) for incidental take of the threatened grizzly bear.  Friends of the Wild Swan v. Jewell, No. CV 13-61 (Aug. 21, 2014). The Montana Department of Natural Resources and Conservation (Department) prepared the HCP to support the U.S. Fish and Wildlife Service’s (Service) issuance of the Permit for take of two mammals and three fish species resulting from increased logging and road building. The Permit area is comprised solely of state trust lands in western Montana that the Department is mandated to manage for purposes of generating revenue for Montana schools.

Plaintiff environmental organizations asserted that the Service improperly issued the Permit for bull trout and grizzly bear because the HCP’s protections for these species do not meet the statutory requirements.  The court upheld the HCP and Permit for bull trout.  For grizzly bear, the court invalidated the Permit, finding the Service did not rationally support its finding that the impacts of the permitted activities on the bear would be minimized and mitigated to the maximum extent practicable.  

The Permit area covers over 500,000 acres within two of the four areas in which grizzly bear populations exist in the lower 48 states, the Northern Continental Divide and Cabinet-Yaak ecosystems. To accommodate the Department’s planned increase in logging activities, the HCP replaced protections prohibiting logging activities outside of the winter denning period over approximately 40,000 acres of designated grizzly bear “core areas” with an alternative program of quiet areas and spring management restrictions.  The Service recognized that the HCP’s proposed change would result in take of bears due to displacement of female bears from “key habitat” and would increase human-bear interactions, but reasoned that the take would be minimal based on the relatively small area (less than 2 percent) of grizzly bear core recovery zones that would be affected.  Overall, the Service concluded that the take of grizzly bears under the HCP would be fully mitigated and would result in a net benefit for the species.  

The issue before the court was whether the HCP’s protections of quiet areas and spring management restrictions satisfy the ESA’s mandate that, to issue a Permit, the Service must find that the HCP minimizes and mitigates the impacts of incidental take “to the maximum extent practicable.”  16 U.S.C. 1539(a)(2)(B)(ii).  Because neither the ESA nor the implementing regulations define “maximum extent practicable,” the court set forth the following principles to guide its analysis:  

(i) The statutory language of “maximum extent practicable” signifies that the HCP applicant may do something less than fully minimize and mitigate the impacts of the take where to do more would not be practicable.  

(ii)  The “maximum extent practicable” standard does not suggest that measures beyond that necessary to mitigate for the project’s effects of take of species are ever required.  

(iii)  Where the level of mitigation provided for in the HCP clearly compensates for the take that will occur, the Service is under no obligation to inquire whether additional mitigation is financially feasible.

A corollary to (iii), above, is that where there is a close call as to whether an HCP adequately mitigates for the project’s take, the Service is required to consider whether additional protective measures would be practicable.  The court found that the HCP record did not contain evidence sufficient to show that the HCP’s program of quiet areas and spring management restrictions offered equivalent protections for grizzly bears as compared to the original core area designations, much less an improvement in conditions – in other words, a close call.  
 
The court held that absent a rational connection between the facts (HCP’s grizzly bear conservation strategy may not improve the bears’ conditions and will increase take of bears) and the Service’s conclusion (HCP completely offsets the impacts of increased logging and road building to grizzly bear), the Service’s finding that the HCP mitigates take of grizzly bears to the maximum extent practicable was arbitrary and capricious. 
 
Upon remand, the Service may choose to take the court’s advice – that the HCP’s grizzly bear conservation strategy’s ability to offset the project’s impacts is a close call – and investigate whether additional mitigation measures to reduce project impacts to the bear would be practicable. 

 

ABA Endangered Species Committee Releases Newsletter

The Endangered Species Committee within the American Bar Association's Section on Environment, Energy, and Resources recently released its periodic Endangered Species Committee Newsletter (pdf).  The newsletter includes articles regarding efforts to address climate change impacts on listed species through assessment of impacts of carbon dioxide versus mercury emissions, the implications of comprehensive listing deadline settlements, the expanding reach of the ESA, and the intersection between mountaintop mining and the ESA.

Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and Wildlife Service, No. 13-234c and 13-413 (Aug. 22, 2014).  

Before finalizing the critical habitat designation, the Service had analyzed the potential economic impacts of the designation on the private property, analyzing three scenarios:  (1) development without the need for a federal permit or approval; (2) partial development because the necessary federal permit or approval would require conservation of 60% of the property; and (3) no development because the necessary federal permit or approval could not be granted in light of impacts to the designated critical habitat.  The Service estimated that the economic impact under the second and third scenarios would be a loss of $20.4 million and $33.9 million, respectively.  In the final rule designating the critical habitat, the Service stated that because it "did not identify any disproportionate costs that are likely to result from the designation[,] the Secretary [did] not exercis[e] his discretion to exclude any areas from this designation of critical habitat for the dusky gopher frog based on economic impacts."  

After dismissing a challenge to plaintiffs' standing, the court explained that under the Endangered Species Act (ESA), both occupied and unoccupied property may be designated as critical habitat.  Thus, the mere fact that the frog was not currently occupying the private property was not determinative.  The court also explained, however, that in order for the Service to designate an area that is not occupied by the species, in addition to considering the economic impact of the designation, the Service must find, based on the best scientific data available, that the designation is "essential for the conservation of the species" and "a designation limited to [the] present range [of the species] would be inadequate to ensure the conservation of the species."

As every independent peer reviewer of the proposed rule concluded that limiting the critical habitat designation to occupied and unoccupied areas in Mississippi would be inadequate to "conserve" the frog, and as the land located in Louisiana contained ephemeral ponds that could play a key role in the future breeding success of the frog, the court found that the Service's "determination seems reasonable and, therefore, entitled to Chevron deference."  Turning to the issue of economic impacts, which the court described as "the most compelling issue advanced by plaintiffs in challenging the validity of the Rule," the court concluded that in light of the "somewhat paralyzing standard of review," it had to defer "to the agency's expertise in its methods for cost projections and its refusal to except [the property] from the designation."      

While the court's ruling was based primarily on the deference accorded the Service under the ESA and the Administrative Procedure Act, it was certainly not without its fireworks.  For example, in one portion of the opinion the court described defendants' attack on standing grounds as "utterly frivolous."  The court also stated, summarizing its view of the issues and the law:  "The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions."  

While plaintiffs did not prevail in the district court, this dispute is far from over.  First, as the court pointed out, plaintiffs did not allege in their complaint that the designation constitutes an unconstitutional taking under the Fifth Amendment.  Such a claim could still be presented to the Court of Federal Claims.  Second, a notice of appeal was filed just four days after the decision was issued.

 

   

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