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Endangered Species Law and Policy

USFWS Initiates Status Review for Lesser Prairie-Chicken

Posted in Fish & Wildlife Service

The U.S. Fish and Wildlife Service (“Service”) recently published a positive 90-day finding on a petition to list the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and three distinct population segments as endangered under the Endangered Species Act (“ESA”).  The petition was filed by WildEarth Guardians, the Center for Biological Diversity, and Defenders of Wildlife on September 8, 2016.  The Service will initiate a status review for the Lesser Prairie-Chicken, followed by a determination regarding whether listing is warranted.

The listing petition was submitted on the heels of the U.S. District Court for the Western District of Texas’s decision to vacate the Service’s final rule listing the Lesser Prairie-Chicken as a threatened species under the ESA.

National Marine Fisheries Service Concludes Iliamna Lake Harbor Seals Are Not Distinct Population, Denies Endangered Species Act Protections

Posted in Listing, National Marine Fisheries Service

The National Marine Fisheries Service (NMFS) recently completed its review of the status of eastern North Pacific harbor seals (Phoca vitulina richardii) in Iliamna Lake, Alaska, a large freshwater lake in Alaska connected to the Bristol Bay region of the Bering Sea.  NMFS concluded (pdf) that the seals do not constitute a species, subspecies, or distinct population segment (DPS) under the Endangered Species Act (ESA), and, thus, listing the harbor seals in Iliamna Lake as threatened or endangered is not warranted.

The Center for Biological Diversity (CDB) submitted a petition to list the Iliamna Lake harbor seals as a threatened or endangered species on November 19, 2012, asserting that they constitute a DPS of Pacific harbor seals.  On May 17, 2013, NMFS found that CBD’s petition presented substantial information indicating that listing the Iliamna Lake harbor seals under the ESA may be warranted.

To qualify as a DPS, two criteria must be met: (1) the population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the population segment must be significant to the remainder of the species (or subspecies) to which it belongs.  Thus, to constitute a DPS, the Iliamna Lake harbor seals would need to be both discrete from and significant to the eastern North Pacific species of harbor seals (P. v. richardii).

After reviewing the best available information, NMFS determined that the Iliamna Lake harbor seals meet the criteria for discreteness but not significance.  Specifically, genetic sampling strongly indicates that the seals from Iliamna Lake likely constitute a resident population that is genetically differentiated from harbor seals in eastern Bristol Bay, and thus meet the criteria for consideration as a discrete entity.  However, the best available information fails to demonstrate that the Iliamna Lake harbor seals are a significant population warranting classification as a DPS.  The information fails to demonstrate that the population is biologically or ecologically important to the species as a whole, and that loss of the Iliamna Lake population would be detrimental to the species or constitute a gap in the range of the species.  Because NMFS found that the Iliamna Lake population of harbor seals was not “significant,” the seals do not qualify as a DPS and are not eligible for listing under the ESA.

New Administration Means Big Changes for Endangered Species

Posted in Fish & Wildlife Service, Legal, National Marine Fisheries Service, Regulatory Reform

The election of Donald Trump as President, together with Republican majorities in the House and Senate, is likely to lead to important policy changes across a range of issues. While administration of the Endangered Species Act and other federal wildlife laws has not been high profile during the election season, it is an issue area in which we are likely to see big changes.  The five key issues are as follows:

Department heads.  There will be a clean slate of Department heads, including new Secretaries of Commerce and the Interior.  Rumored candidates for Commerce include Chris Christie, Dan DiMicco, Mike Huckabee, Rick Perry, and Wilbur Ross.  Rumored candidates for Interior include Rob Bishop, Jan Brewer, Mike Crapo, Dennis Daugaard, Mary Fallin, Robert Grady, Harold Hamm, Forrest Lucas, Cynthia Lummis, Susana Martinez, Matt Mead, Butch Otter, Sarah Palin, Dan Sullivan, and Don Young.

Other political appointments.  There will also be wholesale turnover in the political ranks below Secretary.  This will lag to some extent as appointments are made at the Deputy and Assistant Secretary levels, followed by staff to those folks.

Federal Courts.  With a Republican majority in the Senate, President-elect Trump will likely move promptly to nominate a replacement for Justice Scalia on the Supreme Court.  He will also be in a position to try to move along appointments to the lower courts more quickly than President Obama could during his second term.

Rulemaking.  President-elect Trump will likely try to walk back agency wildlife regulations, especially those viewed by the energy industry as impeding progress on infrastructure such as oil pipelines and drilling.  It is unclear whether this will include undoing revisions made to the regulations that govern designation of critical habitat and issuance of incidental take statements, which were promulgated in the past 18 months. President-elect Trump will likely get significant support from the Republican-held Congress for regulatory changes.  We anticipate there will be calls for him to streamline the regulatory processes with respect to migratory birds and bald and golden eagles, among other environmental regulations.

Federal-state relations.  In some respects, the Obama Administration has striven to work with states to avoid listings or list species as threatened and concurrently promulgate 4(d) rules to allow a degree of flexibility.  On the other hand, the Administration has been at loggerheads with states, for example, with respect to wolf management.  We expect the Trump Administration will attempt to foster better federal-state relations, particularly in the West, with respect to wildlife issues.

Second-Ever Eagle Programmatic Take Permit Soon To Be Granted For California Wind Energy Facility

Posted in Conservation, Fish & Wildlife Service

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program since the program’s establishment in 2009.  Programmatic permits may be sought to authorize eagle take that is associated with, but is not the purpose of, an activity if such take is compatible with the preservation of the bald eagle and the golden eagle and if the take is unavoidable even though advanced conservation practices are being implemented.

Alta East Wind Project (Alta East) is a 137-megawatt, 48-turbine facility operating in the Tehachapi Wind Resource Area in Kern County, California. Alta East’s holding company filed an application for a five-year programmatic eagle take permit for golden eagles in March 2013 that included a detailed Eagle Conservation Plan (ECP) developed in accordance with the Service’s Eagle Conservation Plan Guidance that is applicable specifically to wind energy facilities.  The ECP details the impacts of the operation of Alta East on golden eagles and how these adverse effects will be avoided, minimized, and mitigated to a point where there is no net loss of the protected species.  Alta East also developed a Bird and Bat Conservation Strategy (BBCS), pursuant to the Service’s Wind Energy Guidelines, that outlined additional measures to avoid or minimize potential impacts on eagles and other migratory birds protected under the Migratory Bird Treaty Act (MBTA) as well as bats.  Additionally, when construction of Alta East was approved by the Bureau of Land Management (BLM) in 2013, the biological opinion  associated with the approval included an incidental take statement from the Service authorizing the take of one endangered California condor over the 30-year life of the facility.

The Service’s proposed issuance of the Alta East programmatic eagle permit required analysis under the National Environmental Policy Act (NEPA), and having reached a Finding of No Significant Impact (“FONSI”) in the final Environmental Assessment (EA), the Service will issue the permit after 30 days, authorizing the incidental take of three golden eagles over a five-year period.

In May 2016, the Service proposed significant revisions to the programmatic eagle take permitting program. The proposed rule is currently under review at the White House Office of Information and Regulatory Affairs (OIRA) prior to finalization.

U.S. Fish and Wildlife Service Adds Ten Species to the List of Endangered and Threatened Wildlife and Updates the Listings of Five other Species

Posted in Listing

On November 2, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule adding ten species to the List of Endangered and Threatened Wildlife, and updating the listings of five other species. Of the ten new species added, only one, the Nassau grouper (Epinephelus striatus), occurs in the United States.  The grouper, which is found in Florida, was listed as a threatened species.  The nine other species include three angelshark species (Squatina aculeata, S. oculata, and S. squatina), found in the Mediterranean Sea and eastern Atlantic; three coral species (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana), found in New Guinea and New Caledonia; the dusky sea snake (Aipysurus fuscus), found in Australia; the Banggai cardinalfish (Pterapogon kauderni), found in Indonesia; and the Tanzanian distinct population segment (DPS) of African coelacanth (Latimeria chalumnae), found in South Africa.  The angelshark species, coral species, and dusky sea snake were listed as endangered, while the Banggai cardinalfish and Tanzanian DPS of African coelacanth were listed as threatened.

The listings for all ten species were previously finalized by the National Marine Fisheries Service over the past several months. Pursuant to section 4(a)(2) of the Endangered Species Act, the Service’s final rule simply codifies these additions to the List of Endangered and Threatened Wildlife, found at 50 C.F.R. § 17.11(h).

The Service also updated the Code of Federal Regulations’ entries for Puget Sound- Georgia Basin canary rockfish (Sebastes pinniger), Puget Sound-Georgia Basin yelloweye rockfish (Sebastes ruberrimus), lower Columbia River coho salmon (Oncorhynchus kisutch), and the Puget Sound steelhead (Oncorhynchus mykiss) to reflect the designation of critical habitat.  Lastly, the Service updated the Code of Federal Regulations’ entry for the North Atlantic right whale (Eubalaena glacialis) to remove a citation that expired.

Ninth Circuit Upholds Listing Decision Based on End of Century Climate Change Predictions

Posted in Court Decisions

On October 24, 2016, the United States Court of Appeals for the Ninth Circuit upheld the National Marine Fisheries Service (Service) determination listing the Beringia Distinct Population Segment (DPS) of the Bearded Seal (Erignathus barbatus nauticus) as a threatened species under the Endangered Species Act (ESA).  Alaska Oil & Gas Ass’n v. Pritzker, No. 14-35806 (9th Cir. Oct. 24, 2016).  In doing so, the Ninth Circuit reversed the United States District Court for the District of Alaska.   The decision reinforces the fact that the Ninth Circuit applies a highly deferential standard of review to federal agency actions to protect species under the ESA, and suggests that future decisions based on long-term climate change projections will be upheld.

The action was initiated by a number of parties, including the Alaska Oil and Gas Association, the State of Alaska, and the North Slope Borough, who alleged that the decision to list violated the Administrative Procedure Act and the ESA. The principle issue in the case was whether the Service can ascribe threatened status to a currently healthy species that is predicted to lose its habitat due to climate change by the end of the century.  Slip Op.  at 1.  The Ninth Circuit found that the Service’s modeling efforts and climate change predictions through year 2100 supported the listing decision and that the Service’s determination was made in accordance with the ESA.  This holding is consistent with the Ninth Circuit’s decision to uphold the designation of critical habitat for the polar bear based substantially on climate change predictions. Alaska Oil and Gas Ass’n v. Jewell, No. 13-35919 (9th Cir. Feb. 29, 2016). The decision suggests that the Ninth Circuit will affirm listing of species that are healthy and would not otherwise meet the ESA listing criteria based on climate change modeling many decades into the future, particularly where snow or ice habitat is implicated.

The Plaintiffs advanced three main arguments: (1) that the Service inappropriately included longer-term climate projections diverging from its previous practice of predicting out to the year 2050; (2) the Service failed to provide an evidence-based explanation for the relationship between habitat loss and the species’ survival; and (3) the Service failed to demonstrate that the impact of climate change on the species “will be of a magnitude that places the species ‘in danger of extinction.’” Slip Op. at 23, 26, 29-30.  The district court had found the Service’s decision to be arbitrary and capricious based on the Service’s reliance on “volatile” climate change predictions, a lack of data on the species adaptability and population numbers, and the Service’s failure to identify the exact time the species would reach an extinction threshold. Slip Op. at 6-7.

The Ninth Circuit disagreed with the lower court, opining that the Service adequately explained its conclusions and assumptions, and that the ESA does not require the Service to “base its decision on ironclad evidence.” Slip Op. at 6. Rather, the Ninth Circuit held that the Service adequately described its analysis and the limitations of the modeling effort.   The Ninth Circuit concluded that the Service’s decision to look as far ahead as the year 2100 was consistent with a recent Service internal memorandum and was entitled to Skidmore deference.  Slip Op. at 23-25.  Citing to its February 2016 polar bear critical habitat decision, the panel also found that the Service’s determination of the relationship between habitat loss and species survival was rationally based and that waiting for evidence to demonstrate population decline would require that the Service wait for the tipping point. Id. at 28.  The panel also concluded that the district court’s holding that the Service should have quantified a population reduction or extinction threshold was beyond the requirements of the ESA. Id. at 31-32.

This holding marks the latest in a series of opinions in the Ninth Circuit upholding listing decisions under the ESA based on climate change projections well into the future.

Wolverine Status Review Reinitiated

Posted in Court Decisions, Fish & Wildlife Service, Listing

The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA).  However, things appeared to be changing in 2013, when, after denying a number of prior listing petitions at various stages of the process, the U.S. Fish and Wildlife Service (Service) announced its proposal to list the wolverine as a threatened species under the ESA, citing anticipated habitat loss due to climate change.  (See our February 3, 2013 post for a summary of this history.)  While this put the wolverine squarely on the path to ESA listing, approximately 18 months later, the Regional Director for the Service directed federal biologists to withdraw the proposed rule.  (See our July 7, 2014 post and August 12, 2014 post for a further discussion of the Regional Director’s justification.)  An environmental group challenged this abrupt change in course, and on April 4, 2016, the U.S. District Court for the District of Montana vacated the Service’s withdrawal of the rule, concluding that the decision was not based on the best available science.  (See our April 7, 2016 post for a discussion of the court’s decision.)  On October 18, 2016, consistent with the direction from the court, the Service issued a notice that it was reopening the comment period on the February 4, 2013 proposed rule to list the distinct population segment of wolverine occurring in the contiguous United States as threatened.  Thus, after more than three years, the wolverine again appears to be on the path to ESA protection.

U.S. Supreme Court Denies U.S. Forest Service’s Petition for Review in Canadian Lynx Case

Posted in Court Decisions, Uncategorized

On October 11, 2016, the U.S. Supreme Court denied the U.S. Forest Service’s (“Forest Service”) petition for writ of certiorari to review the U.S. Court of Appeal for the Ninth Circuit’s decision in Cottonwood Environmental Law Center v. Forest Service, 789 F.3d 1075 (9th Cir. 2015).  The key issues in the case related to standing, the justiciability of programmatic planning documents, and whether section 7 of the Endangered Species Act (“ESA”) may require a federal agency to reinitiate consultation with the U.S. Fish and Wildlife Service (“USFWS”) even after the agency has taken a final agency planning action.

The U.S. Supreme Court’s decision to decline review leaves in place the Ninth Circuit’s holdings that:  (1) Article III standing to challenge a procedural violation with regard to an agency planning decision does not require demonstration of imminent injury from a specific development project; (2) an agency’s procedural failure to undertake section 7 consultation for a planning decision is ripe for judicial review; and (3) the obligation to consult with the USFWS under section 7 continues in effect even after the federal agency has taken final agency action on a plan or program and there is ongoing discretionary federal involvement or control over the listed species.

The dispute in Cottonwood Environmental Law Center v. Forest Service concerned the Forest Service’s decision not to reinitiate section 7 consultation for an adopted land management and conservation and recovery plan for the threatened Canada lynx (Lynx canadensis) after the USFWS designated National Forest land in the Northern Rocky Mountains as Canada lynx critical habitat.

On the same day, the U.S. Supreme Court declined to review a case involving critical habitat for the green sturgeon, Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Commerce, 792 F.3d 1027 (9th Cir. 2015), as well as a federal court ruling upholding the Forest Service’s 2012 Colorado roadless rule, Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016).

U.S. Fish and Wildlife Service Lists Two Species, Designates Critical Habitat for One Species

Posted in Conservation, Critical Habitat, Fish & Wildlife Service, Listing

On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).

The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA.  According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively isolated population with limited genetic exchange and restricted dispersal potential, which makes it vulnerable to the impacts of climate change and sea level rise. 81 Fed. Reg. 68,985 (Oct. 5, 2016) (pdf).  The Miami tiger beetle occurs only in Miami-Dade County, and was thought to be extinct until 2007, when a population was discovered at the Richmond Heights area of South Miami, known as the Richmond Pine Rocklands.  It is considered to be one of two tiger beetles in the United States that is most in danger of extinction.  The Service declined to designate critical habitat at this time, but anticipates designating critical habitat before the end of the 2017 fiscal year.

The Service also listed the Kentucky arrow darter (Etheostoma spilotum), a small fish from the upper Kentucky River Basin, as threatened and adopted an ESA section 4(d) rule for the species. 81 Fed. Reg. 68,963 (Oct. 5, 2016) (pdf).  The Service’s decision to list the darter is based in part on destruction, loss, and modification of its habitat, the inadequacy of existing regulatory mechanisms, and other man-made influences.  ESA section 4(d) allows the Service to exempt certain activities affecting a listed species that would otherwise be prohibited under the ESA.  Here, the Service chose to exempt several habitat restoration and bank stabilization projects that are currently planned or under construction because, although the projects may cause some incidental take, the habitat restoration associated with these projects is important for the recovery of the species.  The Service notes that, if carried out in accordance with existing regulations and permit requirements, the following activities are not expected to result in take of the darter: agricultural and silvicultural practices, and surface coal mining and reclamation activities.

Concurrently with the rule listing the Kentucky arrow darter, the Service published a rule designating critical habitat for the species. 81 Fed. Reg. 69,312 (Oct. 5, 2016) (pdf).  Included in the darter’s designated critical habitat are 398 stream kilometers in Breathitt, Clay, Harlan, Jackson, Knott, Lee, Leslie, Owsley, Perry, and Wolfe Counties, Kentucky.  The Service noted in its critical habitat designation that the darter’s range has been reduced from the historically occupied 74 streams to only 47 currently occupied streams.  The 398 designated stream kilometers were split into 38 units, all of which are considered occupied, and which comprise the entire known range of the darter.

U.S. Fish and Wildlife Service and National Marine Fisheries Service Revise Endangered Species Act Petition Process

Posted in Fish & Wildlife Service, Listing, National Marine Fisheries Service, Regulatory Reform

On September 27, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Agencies) published a final rule (pdf) that revises the regulations governing the Endangered Species Act’s (ESA) petition process.  According to the Agencies, the revisions are intended to improve the content and specificity of petitions and enhance the efficiency and effectiveness of the petition process to support species conservation.  The final rule, which revises 50 CFR 424.14, also clarifies the procedures by which the Agencies will evaluate petitions under section 4(b)(3) of the ESA, which establishes deadlines and standards for making findings on listings and delisting petitions for species.

The revised regulations require a petitioner to provide a complete, balanced presentation of facts pertaining to the petitioned species, including any information the petitioner is aware of that contradicts the petition’s claims.  The intent is to encourage petitioners to avoid presenting only information that supports their claims.  This same standard regarding evidence applies to critical habitat petitions.  The Agencies’ revisions emphasize that the burden of proving the merits of a petition rests with petitioners and, though it is not the Agencies responsibility to resort to independent information to fill in gaps in petitions, the Agencies can look to outside information if required.  Finally, the revisions altered some of the procedural requirements for filing petitions and eliminated the requirement that the Agencies respond to petitions within 30 days.

The Agencies published their proposed rule on May 21, 2015.  They received 347 comments in total and, after considering the issues raised, revised the proposed rule and reopened a 30-day comment period on April 21, 2016.  This final rule is the culmination of the process.  The Agencies’ aim is for these revisions to improve the quality of petitions through clarified content requirements and guidelines, which they assert will better focus the Agencies’ resources on petitions that merit further analysis.