Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

As reported in The Daily News Online, the Fish and Wildlife Service will be holding a public meeting on Wednesday, March 3, 2010 at the Water Resources Education Center in Vancouver, Washington to inform the public and address questions on its proposal to expand critical habitat (PDF) for the threatened bull trout.  For more information on the proposed expansion, see the previous post Fish and Wildlife Service Proposes Revision of Critical Habitat for Bull Trout. 

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In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the listing of the DPS of the coastal cutthroat trout was not warranted. 

The Service first published a notice of withdrawal (PDF) of proposed listing for the DPS of the coastal cutthroat trout in 2002.  However, after a group of environmental organizations challenged the Service's determination in federal court, the Ninth Circuit found that the Service failed to properly consider whether the estuary and other marine areas constitute a significant portion of the range of the DPS, and therefore ordered the Service to reconsider the withdrawal determination. 

In the notice published late last week, the Service again withdrew the proposed rule to list the DPS of the coastal cutthroat trout, stating:

the threats to coastal cutthroat trout in the marine and estuarine areas of its range within the DPS, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are not likely to endanger the species now or in the foreseeable future throughout this portion of its range. 

It is unclear whether this decision will once more be the subject of litigation.

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As discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on the greater sage grouse by February 26, 2010.  Due to the death of the Service's Director, Sam Hamilton, the Service requested an extension (PDF) until March 5, 2010 to submit its new finding.  The finding to list the greater sage grouse could have implications for those in the oil and gas, wind energy and livestock industries, making their business more difficult across much of the West.

While half of the North American population of the greater sage grouse is believed to be in Wyoming, it also inhabits parts of California.  According to the California Department of Fish and Game, the sage grouse  "is a permanent resident in northeastern California, ranging from the Oregon border along the east side of the Cascade Range and Sierra Nevada to northern Inyo County.  Lassen and Mono counties have the most stable populations."

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Rowan Gould, the deputy director of operations, was named as acting director of the U.S. Fish and Wildlife Service following the death of Sam Hamilton, who died on February, 20, 2010.  Gould previously served as acting director from January 2009 until August 2009, when Hamilton was confirmed. 

Gould started his career with the Fish & Wildlife Service as a research microbiologist at the Seattle National Research Center in 1976.  Gould has served in many research positions as well as Regional Director of the Alaska Region, Deputy Assistant Director for Fisheries in Washington, D.C., and Deputy Regional Director for the Service’s Pacific Region, and as Deputy Director of the Fish & Wildlife Service. 

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The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C.,  Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade.  The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.

The Endangered Species Act requires the Service to make a "12-month finding" on listing petitions within one year of receipt.  The 12-month finding may consist of one of three determinations: 

1. listing is "warranted," and the Service must publish a proposed rule to list the species;
2. listing is "not warranted" and no further action is taken; or
3. listing is "warranted but precluded" by other listing actions of higher priority. 

However, the Service often takes more than a year to make a determination on a listing petition due to the number of petitions it receives, budget constraints, and litigation-imposed deadlines. A few of the species at issue in the lawsuits include the California golden trout, Cactus Ferruginous pygmy owl, Mount Charleston butterfly, Mojave fringe-toed lizard, and Mojave ground squirrel.

Arizona Complaint (PDF)

California Complaint (PDF)

Portland Complaint (PDF)

Washington, D.C. Complaint (PDF)

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On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act “presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.”  See 90-Day Finding (PDF).

If a “threatened” listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of “take” of any such species without an incidental take permit. 

If any of the species are listed as “endangered,” they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from “taking” or “harming” any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted “take” of, or “harm” to species imperiled by climate change.

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Conservation groups hoped to make the American pika  the second mammal besides the Polar Bear, and the first in the lower 48 states, to be listed under the Endangered Species Act as threatened or endangered specifically due to climate change.  But the U.S. Fish and Wildlife Service (Service) determined that listing is not warranted at this time. See Notice (PDF).

The pika is extremely sensitive in increased ambient temperature (several hours above 78° F can be lethal).  But with the exception of certain lower elevation populations in the Great Basin, the Service determined that, within much of its range, the pika can adapt to the predicted 5.4° F increase by 2050 in average surface temperatures by retreating to cooler subsurface habitat during the warmest times of day, and by becoming more active at night and during the cooler early morning and evening hours.  Thus, the Service determined that the pika is neither endangered (i.e., in danger of extinction) nor threatened (i.e. likely to become endangered in the foreseeable future).

Shaye Wolf, a biologist with the Center for Biological Diversity, criticizes the finding as "a political decision that ignores the science and the law."

Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range.  If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere. 

Thus, any refinery in the United States, e.g., could become subject to Endangered Species Act regulations protecting pika hundreds or thousands of miles away.  See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

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On February 11, 2010, the Fish and Wildlife Service reported that it will not be designating critical habitat for the Florida panther. This announcement comes in response to petitions submitted to the Service by several environmental groups including the Sierra Club and the Center for Biological Diversity requesting designation of 3 million acres of land in south Florida as critical panther habitat.

The Service determined that critical habitat designation is not in the best interest of the Florida panther at this time but retained discretion to designate habitat at a later time. In lieu of designating critical habitat, the Service plans to implement a series of habitat conservation projects outlined in its Florida Panther Recovery Plan (PDF), which includes conservation efforts proposed jointly by environmental organizations and landowners.

In a statement (PDF) issued by the Service, the Service explained that:

A public-private partnership approach is essential for recovery of the Florida panther since so much of the panther’s habitat is privately owned. A critical habitat designation so closely following the finalization of the Florida Panther Recovery Plan would possibly undermine the long-term strategy outlined in the plan to constructively engage private landowners; State, Federal, and local agencies; and other interested groups and members of the public. This dialogue is a key part of addressing the human dimension aspects of panther recovery.

While some environmental groups support the Service’s approach to protecting the panther, which includes establishment of conservation banks that protect large parcels of habitat and implementation of wildlife crossings to help panthers safely cross roads, others do not think the Service’s plan goes far enough. On February 18, 2010, five environmental groups, including the Sierra Club, filed a lawsuit (PDF) against the government in federal court claiming that the Service has failed to protect the Florida panthers as required by the Endangered Species Act. The lawsuit requests the court to remand the matter back to the Service and to order the Service to undertake prompt rulemaking in order to designate 3 million acres of south Florida land and additional land to the north as critical habitat.

The Florida panther has been a federally protected endangered subspecies since 1967. Today’s population is estimated at around 100 panthers. They occur primarily in southwest Florida.

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Pursuant to a request by Congress and the U.S. Department of the Interior, the National Research Council recently held a number of hearings in Davis, California on the current crisis in the Sacramento-San Joaquin Delta. These hearings took place over a four-day stretch, running from January 24 to January 28, frequently addressing a handful of different Delta related issues each day.

The National Research Council is an arm of the National Academy of Sciences, a private non-profit institution that was created in 1863 by President Lincoln.  The primary role of the National Research Council is to synthesize, analyze, and disseminate information in order to aid government decision making. 

The proposed end result of what the National Research Council has currently scheduled to be a 24 month process, is two reports. These reports are being drafted by 15 National Research Council committee members.  The first report, which is scheduled to come out in mid-March, will focus on two biological opinions regarding the continued operations of the State Water Project and the Central Valley Project - the December 2008 biological opinion by the U.S. Fish and Wildlife Service on the delta smelt and the June 2009 biological opinion by the National Marine Fisheries Service on three salmonid species, the North American green sturgeon and the Southern Resident killer whale.  Each of these biological opinions is currently the subject of federal litigation.

The second report, which is currently scheduled to come out in November 2011, will attempt to synthesize all of the scientific information related to the Delta and the federally protected species at issue (including native species such as the Delta smelt), identify gaps in the available science and factors contributing to the decline of the federally protected species, and future water-supply and delivery options that properly account for all of the various interests in the Delta.

Delta smelt biological opinion (PDF 8 MB)

Salmon biological opinion (PDF 12 MB)

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On January 13, 2010, the Fish and Wildlife Service proposed to revise its 2005 designation of critical habitat for the bull trout (Salvelinus confluentus), a species that has been protected under the Endangered Species Act (“ESA”) since it was listed as threatened in 1999. 

The proposed rule (PDF) represents a dramatic increase in critical habitat from that currently designated under the 2005 rule.  The rule as revised includes approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada, which is a 79% increase in total miles of streams and 74% increase in total acres of lakes and reservoirs designated as critical habitat for the bull trout (see the Service's comparison (PDF) of area 2005 critical habitat to area proposed).

The proposed revision comes as the result of a 2006 Federal lawsuit in the U.S. District Court for the District of Oregon filed by the Alliance for the Wild Rockies and Friends of the Wild Swan, alleging that the Service failed to designate adequate critical habitat and unlawfully excluded areas from the final designation.  The Service notified the court in March 2009 that it would seek a remand of the 2005 final rule based on an Investigative Report by the Department of the Interior Inspector General that found a former Department of the Interior political appointee had interfered with the designation by directing large areas to be excluded from what had been proposed and by not allowing the inclusion of any areas unless there was absolute certainty that bull trout were present.

The proposed revision is different from the 2005 final designation in that the Service is not excluding any areas that have been determined to be essential to the conservation of the species. This translates into the following changes to the rule:

• 929 miles (about 4% of the total designation) of unoccupied habitat now designated as critical habitat whereas no unoccupied habitat was included in the 2005 designation;
• 165.9 miles of streams now designated as critical habitat in the Jarbidge River basin where as no critical habitat was previously designated in the Jarbidge River basin;
• no automatic exclusions for Federal lands with management plans that were previously excluded from critical habitat designation under section 4(b)(2) of the ESA; and,
• one additional Primary Constituent Element related to the presence of nonnative fish that may prey on, compete with, or inbreed with, bull trout.

The Service estimates that the revised habitat designation will cost an additional $5 to $7 million per year over the next 20 years from increased administrative costs. Comments on the proposed critical habitat revision and draft economic analysis will be accepted by the Service until March 15, 2010.

More information can be found on the Service's bull trout page. 

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