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Endangered Species Law and Policy

Ninth Circuit Critical Habitat Decision Casts Shadow On Habitat Conservation Plan “No Surprises” Assurances

Posted in Court Decisions, Critical Habitat

In a decision that casts a shadow on the enforceability of contractual assurances in habitat conservation plan (“HCP”) agreements, the U.S. Court of Appeals for the Ninth Circuit rejected various Endangered Species Act (“ESA”) and National Environmental Policy Act (“NEPA”) challenges to the U.S. Fish and Wildlife Service’s (“Service”) designation of critical habitat for a native fish species (the Santa Ana Sucker) on the Santa Ana River in Southern California. Bear Valley Municipal Water Company v. Jewell, No. 12-57297 (9th Cir. June 25, 2015).

This is the first case to address the interplay between the “No Surprises” Rule and the Service’s discretion under section 4 of the ESA to exclude areas from critical habitat based on “economic impact” and “any other relevant impact . . . .” The case is also the first to address whether the ESA policy provision directing the federal wildlife agencies to coordinate with local agencies to “resolve water resource issues” imposes enforceable obligations on the wildlife agencies.

In the 1990s, the Service approved the Western Riverside County Multiple Species Habitat Conservation Plan (“Western Riverside HCP”) – a multi-species conservation plan covering over a million acres in urban Southern California. In 2010, the Service’s critical habitat rule relating to the sucker designated 3,048 acres on the Santa Ana River covered by the Western Riverside HCP.

The implementing agreement for the Western Riverside HCP included a “No Surprises” provision, stating that “to the maximum extent allowable,” unless the Service found that the HCP was not being implemented, the Service would not designate critical habitat for a covered species that was adequately conserved by the Western Riverside HCP. The Service did not make the finding required by the agreement, and the court acknowledged that the Western Riverside HCP was being implemented.

The Ninth Circuit decided the issues on appeal as follows:

  1. The Service’s designation of critical habitat on the Santa Ana River within the area of the Western Riverside HCP complied with the ESA and did not violate the agreement implementing the HCP. The Service’s decision to not exclude the HCP areas from critical habitat is committed to the discretion of the Service and is not reviewable by the court. In any event, the critical habitat designation did not violate the HCP agreement because the Service has not imposed additional requirements on the parties to the agreement.
  2. The policy provision in the ESA regarding consultation with agencies to “resolve water resource issues in concert with conservation of endangered species” is a “non-operative statement of policy” that is implemented through the listing and critical habitat designation provisions of the ESA. The Service complied with the procedures applicable to designation of critical habitat.
  3. The designation of critical habitat in areas that are not occupied by the sucker complied with the ESA. The ESA allows the Service to designate unoccupied areas of critical habitat if the Service finds that the designation is essential to the conservation of the species and the designated occupied areas are inadequate to conserve the species. The Service concluded that the unoccupied areas were “essential” because they provide water and course sediment necessary to maintain preferred substrate conditions.
  4. The designation of critical habitat is not subject to NEPA. The panel concluded that it was bound by the prior Ninth Circuit decision holding that NEPA does not apply to the designation of critical habitat. Notably, the Tenth Circuit has held to the contrary.

District Court Declines to Provide Injunctive Relief for Emergency Drought Salinity Barrier in the California Bay-Delta

Posted in Court Decisions, Fish & Wildlife Service, Legal, Sacramento-San Joaquin Delta

On June 18, 2015, the U.S. District Court for the Eastern District of California denied a motion for a temporary restraining order and preliminary injunction, finding the plaintiff failed to establish that an emergency salinity barrier would imminently harm species listed under the Endangered Species Act (ESA).  Center for Environmental Science, Accuracy & Reliability (“CESAR”) v. Cowin, No. 1:15-cv-00884-LJO-BAM (E.D. Cal Jun. 18, 2015) (pdf).

CESAR filed an action against the California Department of Water Resources (DWR) and the U.S. Fish and Wildlife Service (Service) on June 11, 2015, seeking to enjoin the construction and operation of an Emergency Drought Salinity Barrier at West False River (Project) in the Sacramento-San Joaquin Delta (Delta).  CESAR further sought to require the Service to reinitiate consultation under the ESA “due to changed circumstances, to wit, the construction and operation of the Project.”  Among other things, CESAR argued that the Project would adversely impact species listed under the ESA, including the delta smelt (Hypomesus transpacificus).

DWR constructed the Project in response to Governor Brown’s Executive Order B-29-15, which directed DWR to plan, and, if necessary, implement emergency salinity barriers at various locations within the Delta.  The Project is intended to reduce saltwater intrusion into the central Delta resulting from California’s prolonged drought.  According to DWR, if the Project was not installed, salinity levels in the Delta would degrade water quality to levels that would render it unacceptable as a source for drinking water or commercial and industrial uses, thereby creating risks to human health and safety.  Installation of the Project was completed on June 15, 2015, with approximately 150,000 tons of rock comprising the salinity barrier.  DWR obtained most of the required federal permits for the Project on an emergency basis.

The court denied plaintiff’s motion, holding CESAR failed to demonstrate a reasonably certain threat of imminent harm to ESA-listed species.  Given that the Project had already been installed, the court construed CESAR’s motion as a request to have the Project removed, thereby applying the heightened standard for a mandatory injunction.  The court found that the “potential” impacts described by CESAR were insufficient to meet its burden of establishing that the Project would irreparably harm the species, opining that CESAR was required to demonstrate significant harm to the overall population.

Ninth Circuit Holds Forest Service Violated ESA by Failing to Reinitiate Consultation for Canada Lynx

Posted in Consultation, Court Decisions, Critical Habitat

On June 17, 2015, the U.S. Court of Appeals for the Ninth Circuit ruled that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to reinitiate consultation with the U.S. Fish and Wildlife Service (FWS) regarding the impacts of a revised critical habitat designation on the Canada lynx (Lynx canadensis).  Cottonwood Environmental Law Center v. U.S. Forest Service, No. 13-35624 (9th Cir. Jun. 17, 2015) (pdf).  The Canada lynx was listed as threatened in 2000, and a limited amount of critical habitat was designated for the species in 2006, which did not include any National Forest System land.  Subsequently, the Service issued guidance for its land management and permitting activities—referred to as the Lynx Amendments—upon which it consulted with FWS, resulting in a determination that the guidance did not jeopardize the species.  When agency misconduct and flaws were discovered in the critical habitat designation process, FWS revised the critical habitat designation upward from 1,841 to 39,000 square miles, including land in eleven National Forests.  The Service then declined to reinitiate consultation with FWS on the Lynx Amendments.  An environmental group challenged this decision, alleging that the Service’s failure to consult violated section 7 of the ESA.  The plaintiffs sought reinitiation of consultation on the Lynx Amendments, which were incorporated into the Forest Plans for eighteen National Forests, as well as injunctions on two projects for which the biological opinions were informed by the Lynx Amendments.

Upholding the decision of the U.S. District Court for the District of Montana, the Ninth Circuit held that the revised designation of critical habitat for the Canada lynx required reinitiation of section 7 consultation on the Lynx Amendments.  The Court determined that, due to the designation of new critical habitat and the Forest Service’s retention of discretionary involvement and control over the Forest Plans, reinitiation of consultation with FWS was required.  However, the Court declined to enjoin the projects, based on an analysis of two U.S. Supreme Court decisions that the Court interpreted as overruling Ninth Circuit precedent, Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), which established a presumption of irreparable injury in cases involving ESA procedural violations.  Interestingly, the two cases relied upon by the Ninth Circuit—Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)—both arose under the National Environmental Policy Act (NEPA), which the Court analogized to procedural ESA cases, concluding that Thomas had been overturned.  Ultimately, the Court held that there is no presumption of irreparable injury when there has been a procedural ESA violation, and plaintiffs must show irreparable injury to justify injunctive relief.  Because the Court’s decision altered long-established Ninth Circuit precedent, the Court remanded the case to allow the plaintiffs to make the necessary showing.

Governor Brown Nominates Two for Fish and Game Commission

Posted in Legislation, Regulatory Reform

Governor Brown has announced the nomination of Eric Sklar and Anthony Williams to serve on the California Fish and Game Commission (Commission).  The five-member Commission is established under article IV, section 20 of the California Constitution.  Under section 200 of the Fish and Game Code, the Commission has the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles.  Among other things, the Commission enacts hunting and sport-fishing regulations and determines whether to list and de-list species under the California Endangered Species Act.

The present membership of the Commission includes President Jack Bayliss of Los Angeles, Vice President Jim Kellogg of Discovery Bay, and members Jacque Hostler-Carmesin of McKinleyville, Richard Rogers of Santa Barbara, and Michael Sutton of Monterey.  The terms of Commissioners Rogers and Sutton expired in January 2011 and January 2015, respectively, but under California law they continue to serve until their successors are appointed and qualified.

According to the Governor’s announcement, Eric Sklar resides in St. Helena and is founder and managing partner at Cs2 Wines LLC and president at Preslar Ventures Inc.  In addition, Anthony Williams resides in Huntington Beach and is director of government relations at the Boeing Company.

Chairmen of U.S. Congressional Environmental Committees Criticize EPA’s Failure to Consult Regarding the Potential Impacts of Proposed Clean Power Plan

Posted in Congress, Consultation

On June 15, 2015, Senator James Inhofe (R-Okla.), Chairman of the U.S. Senate Committee on Environment and Public Works, and Congressman Rob Bishop (R-Utah), Chairman of the U.S. House Committee on Natural Resources, sent a letter to Gina McCarthy, Administrator for the U.S. Environmental Protection Agency (EPA), criticizing the EPA’s failure to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) regarding the potential impacts of the Obama administration’s proposed Clean Power Plan on endangered and threatened species. Section 7 of the Endangered Species Act (ESA) requires federal agencies to consult with the Services when an agency takes an action that may affect a listed species or its designated critical habitat. The Congressmen’s letter alleges that the two rules proposed by the Obama administration to reduce carbon dioxide emissions from power plants may affect “a plethora of endangered species” whom the EPA has found to be affected by climate change.

Previously, the EPA engaged in an analysis of the existing rule regulating power plants and found that, because the rule was likely to have positive effects on species by reducing overall greenhouse gas (GHG) emissions, section 7 consultation was unnecessary. The letter of June 15 alleges that the EPA had to engage in consultation regarding the new power plant rules because the new rules  will result in the early closing of a significant number of coal-fired power plants and coal-fired generating units, and such closings “are precisely the kind of real-world impacts the EPA must assess before promulgating a rule.” Specifically, the letter points to two power plants in Florida that are designated manatee refuges whose closures “would significantly and adversely affect the endangered manatee.”

The letter also requests that the EPA turn over all “records, documents, analyses, memoranda, and communications” concerning the potential impacts of the rules on endangered species and provide evidence that the EPA fulfilled its obligations to analyze those impacts and consult with the Services. The letter requests that the EPA provide these documents to the congressional committees by June 22, 2015.

Ninth Circuit Rules Approval of Oil Spill Response Plans is Non-Discretionary

Posted in Court Decisions, Legal, Litigation

On June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit upheld the Bureau of Safety and Environmental Enforcement’s (Bureau) approval of oil spill response plans (OSRPs) relating to oil leases in the Beaufort and Chuckchi seas on Alaska’s Arctic coast.   Alaska Wilderness League v. Jewell, No. 13-35866 (9th Cir. June 11, 2015).  Among other things, environmental groups alleged that the Bureau violated the Endangered Species Act (“ESA”) by failing to consult regarding the impacts of the OSRPs on endangered species.  The Bureau argued it was not required to consult because approval of the OSRPs was a non-discretionary action, and the ESA only requires agencies to consult regarding discretionary actions.  Plaintiffs argued there was sufficient discretion to trigger the ESA’s consultation requirement.

To determine whether approval of the OSRPs was a discretionary action, the Ninth Circuit first analyzed the applicable statutory scheme and implementing regulations.  The court explained that, while the Outer Continental Shelf Lands Act governs the development and exploration of offshore oil and gas resources, the Clean Water Act (CWA) provides the framework for preventing and responding to potential oil spills.  Pursuant to the CWA, the Bureau promulgated regulations that require owners and operators of offshore oil facilities to submit OSRPs for responding, to the maximum extent practicable, to the discharge of oil or hazardous substances.  The regulations require the Bureau to promptly review submitted OSRPs and to obtain amendments to OSRPs that do not meet the requirements of the CWA; the regulations further state that the Bureau “shall approve any plan that meets the [statutory] requirements.”

Applying the principles set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Ninth Circuit then analyzed whether the relevant provisions were ambiguous as to whether the Bureau was permitted to consider additional environmental factors, such as the presence of listed species, when approving the OSRPs.  The court found the relevant statutes ambiguous with respect to this issue.  Thus, pursuant to Chevron, the Court next considered whether the Bureau’s interpretation of its action as non-discretionary was reasonable.  The Ninth Circuit concluded that, because the statutory provisions regarding approval of OSRPs state that the Bureau “shall” approve any plan that meets the statutory criteria, the Bureau reasonably interpreted the statute to mean that its approval of the OSRPs was not a discretionary action.  Given that the ESA does not apply to non-discretionary actions, the court held the Bureau was not required to consult under the ESA, and affirmed the Bureau’s approval of the OSRPs.

The court also held that the Bureau did not violate the National Environmental Policy Act by determining that it was not necessary to prepare an Environmental Impact Statement before approving the OSRPs.

California Fish and Game Commission Votes Not to Make Tricolored Blackbird Candidate for Listing

Posted in Listing

Today, in response to a petition to list (pdf) filed by the Center for Biological Diversity (CBD) in October 2014, the California Fish and Game Commission (Commission) determined not to make the tricolored blackbird (agelaius tricolor) a candidate for listing under the California Endangered Species Act (CESA).  As we reported, the Commission previously — in December 2014 — decided to list the species on an emergency basis principally on the basis of the petition and without the benefit of input from the California Department of Fish and Wildlife and interested parties.  The emergency listing will lapse on June 30, 2015, at which point the species will not be protected under CESA.

CBD also submitted a petition to list to the U.S. Fish and Wildlife Service (Service) in February 2015.  The Service sent a letter dated March 13, 2015, to CBD opining that “there is no imminent threat to the species that would cause us to believe an emergency listing is required.”  But the Service has yet to issue a determination under section 4(b)(3)(A) of the Endangered Species Act “whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.”

Lawsuit Filed Over State Water Board’s Temporary Modification of Water Quality Objectives

Posted in Sacramento-San Joaquin Delta

Consistent with Governor Brown’s Drought Proclamation and Executive Orders, the U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR) sought and obtained a temporary modification of certain water quality objectives from the California State Water Resources Control Board (State Board) in order to allow for increased exports of water from the Central Valley Project and State Water Project in the Sacramento-San Joaquin Delta (Delta).  On June 3, 2015, environmental groups, including the California Sportfishing Protection Alliance, California Water Impact Network, AquAlliance, and Restore the Delta, filed a lawsuit against the U.S. Department of Interior (DOI), USBR, DWR, and the State Board, alleging that the State Board’s approval of the temporary modifications and the subsequent operation of the Central Valley Project and State Water Project violated various state and federal laws.  (Complaint, pdf.)

In the complaint, plaintiffs allege that the increased exports will cause water temperatures and salinity to rise, thereby adversely affecting native fish species, including the delta smelt (Hypomesus transpacificus), Sacramento River winter-run Chinook salmon (Oncorhynchus tshawytscha), and Central Valley steelhead (Oncorhynchus mykiss), which are all listed under the Endangered Species Act.  Among other things, plaintiffs claim that the modifications are unlawful because they do not conform to the standards established under the Central Valley Project Improvement Act and the Sacramento-San Joaquin Delta Reform Act (Cal. Water Code §§ 85000, et seq.).

The lawsuit is the first challenging the State Board’s attempts to address the impacts of the historic drought conditions in California, and, if successful, could preclude future exports from the Central Valley Project and State Water Project.


Ninth Circuit Holds Consultation Unnecessary for Wind Energy Project

Posted in Court Decisions, Fish & Wildlife Service

On May 27, 2015, the U.S. Court of Appeals for the Ninth Circuit provided some additional guidance as to what constitutes agency action for purposes of triggering the consultation requirement under the Endangered Species Act (ESA).  The court held that although the U.S. Bureau of Land Management (BLM) was required to consult with the U.S. Fish and Wildlife Service (FWS) on the effects of a proposed road project on BLM land, BLM was not required to consult on the effects of a proposed wind project that would be accessed via the federal road project.  Sierra Club v. BLM, Case No. 13-15383.

While both projects are to take place near Tehachapi, California, only the federal road project would take place on BLM land; the wind project would be built entirely on private property.  To facilitate access to the wind project, the developer applied to BLM for right-of-way over federal land in order to connect to an existing state highway.  The developer also requested authorization to place underground power and fiber optic communication lines in the right-of-way to connect to the energy grid.  In the application, the developer also explained that there was an alternative route for accessing the wind project that was located completely on private property, but it was rejected by the developer because of the significant environmental impacts associated with the bulldozing, blasting, grading and tree clearing necessary for construction of the private road.  If, however, BLM denied the developer’s application, the developer stated that it would proceed with construction of the private road in order to access the wind project.

Thereafter, BLM issued and prepared an environmental assessment for the proposed federal road project, finding that the project would have no significant environmental impacts.  BLM also found that the federal road project had independent utility separate from providing access to the wind project, as it would provide dust control, reduce erosion, and reduce unauthorized access to a national trail located near the proposed private road.  In light of this independent utility, and because the wind project could be built without the federal right-of-way, BLM concluded that while it had to consult on the federal road project, consultation was not required for the wind project.

After BLM issued the permit for the federal road project without consulting with FWS on the wind project, a number of environmental groups challenged BLM’s actions in federal court.  The environmental groups alleged that BLM had failed to comply with the ESA’s consultation requirement, and that BLM was obligated under the National Environmental Policy Act to prepare an Environmental Impact Statement for the project.  The Ninth Circuit rejected both challenges, affirming the decision of the lower court.

With respect to the failure to consult claim, the Ninth Circuit explained that the consultation requirement is only triggered when the direct or indirect effects of an agency action may affect a species or its critical habitat.  And in order to make this determination, the federal agency must consider “the direct and indirect effects of [its] action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with the action . . . .”

In this case, because the private road project was a viable alternative, and therefore the wind project was not dependent on the existence of the federal road project, the Ninth Circuit found the wind project was neither a direct nor indirect effect of the federal road project.  The Ninth Circuit also found that the wind project and federal road project were not interrelated or interdependent, because “neither is an integral part of the other, neither depends on the other for its justification, and each has utility independent from the other.”  Accordingly, the Ninth Circuit concluded that as the wind project and federal road project were separate projects, and BLM did not authorize or approve any action with respect to the wind project, there was no agency action triggering BLM’s obligation to consult under the ESA.




Sage Grouse Status Hangs in the Balance as BLM Moves to Adopt Conservation Plans for Ten Western States

Posted in Conservation

On May 29, 2015, the U.S. Bureau of Land Management (BLM),  in cooperation with the U.S. Forest Service, released Final Environmental Impact Statements for proposed amendments to existing Resource Management Plans (RMPs) for lands in ten western states.  The RMP amendments would establish conservation measures for the greater sage grouse (Centrocercus urophasianus) for approximately 50 million acres of federally-managed lands in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. The proposed RMP amendments are intended to reduce greater sage grouse habitat fragmentation by minimizing new and additional surface disturbances, establishing buffers between resource developments and areas critical to the sage grouse life-cycle, restoring and enhancing habitat and requiring mitigation to address unavoidable development impacts on sage grouse habitat, and reducing threats of rangeland fire through fuel management and fire-impacted landscape restoration measures. The public comment period on the Final  Environmental Impact Statements is from May 29, 2015 to June 29, 2015.  BLM is expected to adopt the plans in late summer, following a 60-day state review period.

Last month, Senator Corey Gardner (R-Colo.) introduced a bill that would effectively subordinate BLM’s management of the species to that of the ten subject states. The bill requires BLM and the U.S. Forest Service to implement state conservation and management plan recommendations on federally-managed lands in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. The state plans establish varying standards of protection for the species.

The U.S. Fish and Wildlife Service (FWS) designated the greater sage grouse a candidate species for listing under the Endangered Species Act (ESA) in 2010, but found its listing to be “warranted but precluded” by higher priority listings at that time.  A court-approved settlement requires FWS to make a listing determination by September 2015.  The conservation measures proposed by BLM’s RMP amendments will be “central” to FWS’s forthcoming decision regarding the greater sage grouse’s ESA conservation status.  According to Noreen Walsh, FWS’s Mountain-Prairie Regional Director, the BLM plan amendments are “essential for the Service’s evaluation of whether the species still warrants federal protection.”