Violation of Endangered Species Act Results in Jail Time and Probation

Two men were sentenced in federal court last week after admitting to the 2007 slaughter of over 100 federally endangered Indiana bats in Kentucky.  In light of the brutality of the attacks, one man received 3 years probation, while the second man, who was involved in two separate attacks on the endangered bat, was sentenced to eight months in federal prison.  

Both men pleaded guilty to violating the take prohibition in the federal Endangered Species Act ("ESA"), which provides for a maximum criminal penalty of $50,000 or one year in prison, or both.  While the criminal penalties provision of the ESA has been around since the adoption of the ESA, it is not common for the federal government to pursue criminal penalties.  Instead, the majority of take violations are pursued under either the ESA's civil penalties provision or citizen suit provision.  These convictions, however, are a stark reminder of the potentially significant consequence for those who dismiss the prohibitions in the ESA.   

Federal and state agencies attribute the convictions to an anonymous tip. 

Comment Period for California Tiger Salamander Listing Decision Open Until Hearing on May 5, 2010

The California Fish and Game Commission provided notice (PDF) that it will be holding a hearing in Stockton on Wednesday, May 5, 2010 at 8:30 am to take comments on the listing of the California tiger salamander to the list of threatened animals pursuant to the California Endangered Species Act.  The Department of Fish and Game submitted a status review (PDF) of the California Tiger Salamander to the Commission on January 11, 2010.

As detailed in the notice, written comments are requested to be submitted on or before April 30, 2010, but must be received no later than 5:00 p.m. on May 3, 2010.  All comments must be received no later than May 5, 2010 at the hearing in Stockton. 

Court Rejects Use of Habitat Surrogate In Everglades Project Biological Opinion

In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the “fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take.” 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

Endangered Species Law Conference to Take Place April 8-9 in San Diego

On April 8-9, Nossaman partners Rob Thornton and Paul Weiland will be co-chairing a CLE International conference on Endangered Species Law at the Omni Hotel in San Diego, California.  Nossaman attorneys Sue Meyer, Rob Thornton, and Paul Weiland will be presenting on panels at the conference.  Other speakers are among the leading attorneys, consultants, scientists, and stakeholders in the field, including Dr. Holly Doremus of University of California, Berkeley, Dr. Dennis Murphy of University of Nevada, Reno, and Dan Keppen of the Family Farm Alliance.  The conference will cover numerous subjects including alternative energy compliance, peer review, recovery planning, and the Bay Delta Conservation Plan

National Marine Fisheries Service Lists Pacific Smelt As Threatened

The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be making a critical habitat determination and considering the need for protective regulations.  As for the immediate future, the listing determination will require federal agencies to consult with NMFS on any federal action that may result in jeopardy to the pacific smelt.    

Feinstein Responds to National Academy of Sciences Report - Calls for Greater Flexibility

Senator Dianne Feinstein has responded (PDF) to the National Academy of Sciences National Research Council's report on the Sacramento-San Joaquin Delta noting that the report did not indicate a need to enforce more rigorous pumping restrictions.  Feinstein emphasized the finding that other stressors, including predators, may have a potentially large impact on endangered species in the Delta and the need to integrate the two biological opinions.  Finally, Feinstein urged the Departments of Interior and Commerce to implement the biological opinions with additional flexibility with respect to likely water limitations. 

National Research Council Releases Report on Sacramento-San Joaquin Delta

Today the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta released the first of two reports regarding the Sacramento-San Joaquin Delta in California. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay Delta. It addresses two biological opinions issued by the Fish and Wildlife Service and the National Marine Fisheries Service (“NMFS”) under the Endangered Species Act concerning the operation of the state and federal water projects that serve 25 million Californians.

The National Research Council report focuses on:

  • scientific issues regarding the reasonable and prudent alternatives (RPAs) in the two biological opinions,
  • whether the RPAs might be in conflict with one another, 
  • whether alternatives to the RPAs might be available that would protect the fishes with lesser impacts on other water uses, and
  • the effects of stressors other than water project operations on the fishes.

The Committee reviewed the actions contained in the Service and NMFS RPAs and determined that most of them have a sound conceptual basis. Nonetheless, the Committee concluded there are a number of short-comings in the existing RPAs. For example, with respect to the Service's RPAs, the Committee determined that there is a weak statistical relationship between the salinity contour measure (“X2”) used in the biological opinion to restrict water deliveries and the size of the delta smelt populations, which makes justification of that RPA difficult to understand. With respect to the NMFS RPAs, the Committee concluded that the scientific support for specific flow targets managing the flow from the Old and Middle Rivers is uncertain.  As noted in a New York Times article on the report, the Committee added that "problems facing delta smelt and chinook salmon are not entirely caused by thirsty farms south of the estuary."

A previous post on this subject, including links to both biological opinions is available here

Forest Service Evaluation of Grazing Impacts on Sage Grouse Invalidated by Ninth Circuit

Finding its methodology “fatally flawed,” the Ninth Circuit Court of Appeals concluded that the Forest Service violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”) in its approval of grazing allotments in Southeast Montana.  In Native Ecosystems Council v. Tidwell (PDF), the court determined that the Forest Service’s use of a “habitat” proxy to evaluate impacts to the sage grouse was arbitrary and capricious without considering evidence concerning the sage grouse population. The court did not consider the recent determination by the Fish and Wildlife Service that the listing of the sage grouse under the Endangered Species Act is “warranted.” Nevertheless, the decision is evidence of the potential for future conflicts between the conservation of the sage grouse and economic activities on public lands in the West. The decision is another example of the reluctance of the Ninth Circuit to defer to agency decisions on biological issues.

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Fish and Wildlife Service Designates 1.6 Million Acres of Critical Habitat for California Red-Legged Frog

For the third time in nine years, the Fish and Wildlife Service has revised the designation of critical habitat for the California red-legged frog. The new designation includes 1.6 million acres in 20 counties in California. 75 Fed. Reg. 12,816 (Mar. 17, 2010) (PDF). The revised designation increases the amount of critical habitat by over one million acres from the 2006 critical habitat designation (PDF). The revised designation represents a decrease of approximately 2.4 million acres from the 2001 designation (PDF). The Service revised the prior designations in response to litigation brought by the building industry and by environmental groups. The red-legged frog is widely known as the protagonist in Mark Twain’s The Celebrated Jumping Frog of Calaveras County. The designated critical habitat includes land in the Sierra foothills, the Sacramento and San Joaquin Valleys, the Bay Area, the Central Coast and Southern California.

The revised designation reflects a continuation of policies adopted by the Clinton Administration and the Bush Administration to exclude from critical habitat certain areas within approved habitat conservation plans (“HCPs”). The critical habitat designation excludes areas covered by three HCPs: Bonny Doon, East Contra Costa and Western Riverside. Reflecting a nuanced changed in Service policy, the designation also excludes certain lands managed under other state or local conservation programs. The Service concluded that “judicious exclusion of specific areas of non-federally owned land from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone.”

The Service also excluded several national defense installations from the designation where the military installations had adopted an integrated national resource management plan under the Sikes Act. Congress amended the Endangered Species Act in 2003 to authorize exclusions of defense installations subject to Sikes Act integrated natural resource management plans. 16 U.S.C.§ 1533(a)(3)(B)(i).

The Service estimated the total economic cost of protecting the red-legged to be approximately $1.34 billion and estimated the incremental economic cost of the revised critical habitat designation to be approximately $500 million.

Bill Introduced to Amend California Endangered Species Act (AB 2420)

Assemblyman Jared Huffman has introduced Assembly Bill 2420 (PDF) to amend the provisions of the California Endangered Species Act (“CESA”) that allow persons who obtain incidental take authorization under the federal Endangered Species Act (“ESA”), to also obtain take authorization from the Director of the California Department of Fish and Game for species listed under both laws, provided the Director determines that such federal take authorization is consistent with CESA.

AB 2420 would revise section 2080.1 of the California Fish and Game Code. As presently written, that section requires persons that seek consistency determinations to provide the Director with either an incidental take statement issued pursuant to section 7 of the ESA or an incidental take permit issued under section 10 of the ESA. AB 2420 would require persons that seek consistency determinations to provide the Director with both a biological opinion and incidental take statement or a conservation plan and incidental take permit as well as notice of the required measures in those documents that fulfill the incidental take permitting requirements set forth in section 2081(b) of CESA. Furthermore, AB 2420 would require the Director to determine whether notice provided by the person seeking a consistency determination is complete within seven days of receipt. In the event notice is incomplete, the Director would be required to provide an immediate, written response. In the event notice is complete, the Director would have 30 days to make a consistency determination.

On March 23, 2010, the Committee on Water, Parks, and Wildlife is scheduled to hold a hearing on AB 2420.

NOAA Fisheries Requests Modifications to California Sport-Fishing Regulations

At the March 3, 2010 California Fish and Game Commission meeting in Ontario, California, the National Oceanic and Atmospheric Administration ("NOAA") Fisheries, the federal agency charged with protecting marine and anadromous fish species such as the Sacramento River winter-run Chinook salmon and Central Valley steelhead, formally requested that the Commission revise sport-fishing regulations to increase the harvest of non-native predators that prey on species protected under the federal Endangered Species Act.  (To access archived footage of the Commission meeting, click here and on the film icon next to item 8.)

While noting that such modifications were appropriate for a variety of non-native predatory fish species, including the largemouth bass and American shad, the representative from NOAA explained that striped bass is perhaps the "most important predator on young salmon and steelhead" in the Delta, both of which are listed under the ESA.  He went on to state that focusing "on striped bass in specific sections of certain rivers or streams would probably be a good place to start."

In response to this request, the Commission directed staff to draft a technical report analyzing the issue.  (To access archived footage, click here and on the film icon next to item 10.)  No deadline was provided for staff to complete the report. 

Conservation Groups Urge Administration to Adopt New Definition of "Adverse Modification of Critical Habitat"

On March 10, 2010, the Center for Biological Diversity submitted a letter (PDF) on behalf of 50 conservation groups encouraging the Secretaries of the Department of the Interior and the Department of Commerce to adopt a radical new definition of “adverse modification of critical habitat.”  The proposed definition differs in two ways from the current regulatory definition; one uncontroversial and benign, while the other is likely to be controversial and far-reaching.

Currently, “adverse modification” is defined by regulation as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.”  The groups would have “adverse modification of critical habitat” be defined as “a direct or indirect alteration that appreciably diminishes the value of any portion of any area of designated critical habitat for either the survival or recovery of a listed species,” with “appreciably diminishes” defined “as any action that would destroy or degrade any primary constituent element such that the habitat would be, measurably or perceptibly, of less value to the species.”  As explained below, the change to “either . . . or” would be benign; but the proposed addition of “any portion of any area” could dramatically alter the way the Services administer Section 7 of the ESA.

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Groups Sue Over Greater Sage Grouse Candidate Determination

Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse.  On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA").  This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species.  As discussed in a previous post, Western Watersheds filed a complaint challenging the 2005 determination, and in 2007, the federal district court reversed the Service's determination and remanded the matter to the Service. 

The supplemental complaint (PDF) filed by Western Watersheds alleges, in part, that the Service's justification for its warranted but precluded finding for the greater sage grouse is arbitrary and capricious because the Service has not made "expeditious progress" in listing species under the ESA.  According to the supplemental complaint, between 1974 and 2000, the Service listed approximately 45 species per year, but between January 2001 and March 2005, the Service listed only 30 species in total, an average of seven species per year.  The complaint also alleges that the Service only listed one species during fiscal year 2009. 

As previously discussed, while a candidate species is not protected under the ESA, the Bureau of Land Management ("BLM") has issued guidance (PDF) that may have impacts on wind and solar development as well as oil and gas leasing on BLM lands that impact the species.

Court Holds that Federal Agencies Acted Illegally by Implementing Biological Opinion and Reasonable and Prudent Alternatives without Complying with NEPA

The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009.  In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species.  For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species.  Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.

Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA.  The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.

Greater Sage Grouse Listing Warranted But Precluded

co-authored by Robert Thornton

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and fragmentation of sagebrush habitats due to conversion for agriculture, urbanization, infrastructure, grazing, and nonrenewable and renewable energy development.  If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction.  The Service plans "to continue to work cooperatively with private landowners to conserve the candidates species.  This includes financial and technical assistance, and the ability to develop conservation agreements that provide regulatory assurances to landowners who take actions to benefit the species." 

The Bureau of Land Management ("BLM"), which manages the majority of greater sage grouse habitat, has issued guidance (PDF) to address actions in "priority" sage grouse habitat.  For example:

  • BLM will re-route proposed transmission projects to avoid priority habitat;
  • For new oil shale lease applications, BLM may impose lease stipulations and project conditions of approval that designate avoidance areas;
  • New right-of-way applications for wind and solar energy development may be denied or terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by analysis under the National Environmental Policy Act. 

BLM has also issued a FAQ

NRDC Sues to List Whitebark Pine Claiming Exacerbated Threat Due to Climate Change

Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada.  The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine." 

The whitebark pine listing petition is one of several recent petitions seeking protection under the ESA due to the threat that climate change poses to the species.  The Service recently declined to list the American pika as endangered or threatened due to climate change.  But last month the National Marine Fisheries Service determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. 

Lawsuit Seeks to Address Predation in the Sacramento-San Joaquin Delta

Co-authored by Ben Rubin

On February 27, 2010, the Sacramento Bee published a story by Matt Weiser entitled "Lawsuit: Striped bass to blame for California's salmon decline." The story discusses an ongoing lawsuit (PDF) challenging the California Department of Fish and Game's enforcement of striped bass sport-fishing regulations in the Sacramento-San Joaquin Delta. The lawsuit alleges that the enforcement of the striped bass sport-fishing regulations maintain an elevated striped bass population, which increases striped bass predation on a number of species listed under the Endangered Species Act ("ESA"), including the Sacramento River winter-run Chinook salmon and delta smelt. Because these species are listed, any action that increases striped bass predation is a violation of Section 9 of the ESA, which prohibits any government agency, entity, or individual from "taking" a federally protected species without prior authorization.

Plaintiffs and the Department of Fish and Game have filed cross-motions for summary judgment, which the federal District Court is scheduled to hear in late April. Plaintiffs' motion (PDF), which relies primarily on documents and statements from Department of Fish and Game employees, seeks summary adjudication on the issue of liability and standing. The Department of Fish and Game, however, has only moved (PDF) on the issue of plaintiffs' standing.

Tiger Salamander Protected Under California's Endangered Species Act

In a 3-2 vote, the California Fish and Game Commission ruled yesterday that the California tiger salamander will be protected as a threatened species under the State’s Endangered Species Act.  The Commission had previously denied the listing twice, and was ordered by the State Court of Appeals to reconsider the issue after the Center of Biological Diversity filed suit in 2004.  The Commission made the decision after finding that the species’ habitat, roughly 400,000 acres in Central California, is threatened by future development.

This decision is anticipated to affect landowners in the Central Valley including farmers and developers who will face additional restrictions on activities in areas that are occupied by or provide suitable habitat for the species. While opponents to the listing decision argue that the population counts for the species are inaccurate and projected development on rural land is exaggerated, Commission members respond that their decision is supported by the scientific community.

Three distinct population segments of the California tiger salamander were listed under the federal Endangered Species Act in 2000 (PDF), 2002 (PDF), and 2004 (PDF) by the Fish and Wildlife Service.  Its breeding and estivation habitat includes vernal pools, ponds, and upland areas in grassland and oak savannah plant communities.

Fish and Wildlife Service Reinstates Proposed Listing of the Flat-Tailed Horned Lizard

Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF), the Ninth Circuit's most recent decision respecting the listing determination.  In its decision, the Ninth Circuit reversed a lower court decision upholding the Service's determination to withdraw the proposed rule (for the second time) on the ground that habitat loss did not constitute a significant portion of the species' range and the loss did not result in a likelihood that the species could become endangered in the foreseeable future.  Noting that information concerning population dynamics of the species is limited and inconclusive, the Ninth Circuit faulted the Service for inferring that "the absence of evidence of population decline equates to evidence of persistence."  In a dissent, Judge Noonan questioned the role of the judiciary vis-a-vis the Service where, as here, everyone agrees that there is a high degree of uncertainty.

It's any body's guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary's  conclusion impacted by over-reliance on fragmenting evidence of the lizard's persistence; so the court decides to give the Secretary another crack at the problem.

The listing of the flat-tailed horned lizard will impose restrictions on public and private activities in the lizard's range in the United States, although the species is covered by the Coachella Valley Multiple Species Habitat Conservation Plan, which covers approximately 1.2 million acres of land in Riverside County, California.  Like the potential listing of the Sonoran desert tortoise, this listing could also impact areas identified for solar energy projects in California and Arizona.

The comment period on the proposed listing expires May 3, 2010.  Public hearings are scheduled for March 23, 2010 at the University of California, Riverside and March 24, 2010 at the Radisson Hotel in Yuma, Arizona.  The Service has not proposed the designation of critical habitat at this time.


Lawsuit Seeking Listing of Sonoran Desert Tortoise Expands Endangered Species Act-Solar Development Conflict

Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted.  According to the lawsuit, the Service received a petition to list the tortoise in October 2008.  Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority.  If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service.  Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development.