Burrowing Owl Population in Imperial County Declines Sharply

The burrowing owl (pdf) is a species broadly distributed in the western United States that also occupies other parts of the continental United States as well as Central and South America.  The species is resident in much of the State of California.  Populations of the species have declined in certain areas of the State over time, but the population in Imperial County increased with the expansion of agriculture in the region over the past century.  It was recently reported that the Imperial County population, which was as high as 5600 pairs in the past decade, totaled less than 4900 pairs in 2007 and 3600 pairs in 2008.

The burrowing owl is classified as a species of special concern by the California Department of Fish and Game.  In addition, it is subject to protect under the federal Migratory Bird Treaty Act.  In 2003, a number of environmental groups filed a petition (pdf) to list the species under the California Endangered Species Act, but the Fish and Game Commission declined to list the species.  The burrowing owl is a covered species under a number of regional habitat conservation plans in southern California including the San Diego Multiple Species Conservation Program Plan (pdf) and the Western Riverside County Multiple Species Habitat Conservation Plan.

Listing of Gunnison sage-grouse is "warranted but precluded."

Male Gunnison Sage-GrouseOn Monday, September 27, 2010, the U.S. Fish and Wildlife Service issued its determination that the Gunnison sage-grouse warrants listing under the Endangered Species Act, but that proposing that it be listed as threatened or endangered be postponed while the Service addresses the needs of higher priority species.

Historically, the Gunnison sage-grouse occupied southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona.  But according to the Fish and Wildlife Service, its range has been reduced to seven separate populations in southwestern Colorado and southeastern Utah (pdf).  Of the approximately 4,500 breeding Gunnison sage-grouse, some 3,900 inhabit the Gunnison Basin in Colorado.

In 2006, the Service determined that listing was not warranted.  An ensuing legal challenge resulted in a consent decree in which the Fish and Wildlife Service agreed to undertake a 12-month status review.  The September 27, 2010 "warranted-but-precluded" finding is the outcome of that 12-month status review.

Now that the Gunnison sage-grouse has been added to the list of candidate species, the Fish and Wildlife Service must review its status annually.  Currently, landowners in Colorado may voluntarily undertake conservation measures under the terms of a "Candidate Conservation Agreement with Assurances" (CCAA) issued to the Colorado Department of Wildlife by the Fish and Wildlife Service.  Under the terms of the CCAA, landowners who undertake specified conservation measures receive assurances that if and when the species is formally listed, the federal government will not place additional new restrictions on the use of their property for the protection of the sage-grouse.

Man Pleads Guilty to Intentionally Ramming Whales in Violation of ESA

Last week, a man in southeast Alaska pleaded guilty to violating the Endangered Species Act (ESA) by twice intentionally ramming the boat he was operating into humpback whales, a listed species under the Act.  Federal prosecutors charged Kevin Carle with “knowingly harassing, pursuing and harming whales,” a violation that resulted in two years of probation and a $1,025 fine, reports the Juneau Empire.  Carle is now required to participate in an ESA Awareness program and must notify a probation officer if hired as a boat operator.

While in both instances Carle intentionally veered off-course and drove his boat directly toward the humpback whales, inadvertent "ship strikes," as they are called, are not uncommon.  In fact, the National Oceanic and Atmospheric Administration reports that ship strikes with large whales in Alaska appear to be increasing, which may be a result of an increasing population of humpback whales in the North Pacific.

Dramatic Drop Reported in Palila Population

Recently, a number of news outlets reported that the population of the palila (Loxioides bailleui), a Hawaiian songbird that the Fish and Wildlife Service listed as endangered in 1967 under the predecessor to the 1973 Endangered Species Act (ESA), has decline dramatically in recent years according to surveys conducted by the U.S. Geological Survey and other entities.  In a five year status review of the species (pdf), the Fish and Wildlife Service previously identified the population decline.

From 2003 to 2007, the estimated number of palila on the southwestern slope of Mauna Kea declined by 58 percent, the first statistically significant population decline for the entire period of annual monitoring that began in 1980.

5-year review at 14 (2009).  Among the reasons for the decline are habitat loss, drought, and predation by feral cats.  The State is in the process of building a fence to protect the species' remaining habitat.  The U.S. Geological Survey has expended significant resources on research and recovery efforts (pdf).  The palila was the subject of extensive litigation under section 9 of the ESA in the 1980s.

District Court Upholds Certain Aspects of Canada Lynx Critical Habitat Rule but Remands Economic Analysis

Two statewide snowmobile associations challenged the Fish and Wildlife Service's 2009 final rule designating critical habitat for the contiguous United States distinct population segment of the Canada lynx on the grounds the Service violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).  In an order (PDF) dated September 10, 2010, the United States District Court for the District of Wyoming rejected plaintiffs' NEPA claims but concurred with plaintiffs that certain lands were designated as critical habitat in the final rule due to the Service's failure to conduct a full analysis of the economic impacts of the rule.

The Service listed (PDF) the Canada lynx as threatened in 2000.  The range of the species spans 14 states from Maine to Washington.  In its final rule, the Service designated approximately 39,000 square miles of land as critical habitat.  Under the ESA, critical habitat is defined to include the specific areas within the geographical area occupied by the species on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection.

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National Research Council Agrees to Review Draft Bay Delta Conservation Plan by April 2011

As we previously reported, representatives of the Federal government asked the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  In a letter (PDF) dated September 10, 2010 and addressed to representatives of the Departments of the Interior and Commerce, the National Research Council agreed to provide a "short report" assessing the adequacy of the use of science and adaptive management in the draft BDCP.  The Council indicates in the letter that the task will be carried out by a specially appointed panel that will include many but not all members of the Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The letter further indicates that if the National Research Council receives the draft BDCP by November 24, 2010 it will deliver its report by April 30, 2011.

In the letter, the Council states that it will follow its usual procedure in appointing the panel to review the draft BDCP and provide an opportunity for notice and comment regarding nominees to serve on the panel.  The Committee's next meeting is scheduled for December 8-10, 2010 in San Francisco.

Fish and Wildlife Service Releases Draft Revised Recovery Plan for Northern Spotted Owl

The Service released a draft Revised Recovery Plan (PDF) for the northern spotted owl dated September 8, 2010.  The species, which inhabits portions of California, Oregon, and Washington, was listed as threatened in 1990.  A chronology of regulatory actions taken by the Service with respect to the northern spotted owl is available here (PDF).  According to a news release (PDF) issued by the Service, "[t]he draft revision is not an overhaul of the existing recovery plan but includes significant refinements based on scientific and technological advancements, especially related to evaluating suitable habitat."  The Service has established a 60-day public review period for the draft Plan.  The prior Recovery Plan was completed in 2008.

Ninth Circuit Amends Earlier Opinion Regarding Adverse Modification of Critical Habitat

The U.S. Court of Appeals for the Ninth Circuit amended an opinion it filed earlier this year in Butte Environmental Council v. U.S. Army Corps of Engineers, which we wrote about here.  The case concerns a challenge to the Fish and Wildlife Service’s (Service) finding that a proposed business park would not adversely modify the critical habitat of three listed species under the Endangered Species Act (ESA). While the Ninth Circuit did not change its holding from the June opinion (PDF), it did clarify previous dicta concerning the Service’s analysis of adverse modification under the ESA.  In a footnote, the opinion now states that the court “express[es] no opinion on whether the ‘adverse modification’ inquiry under section 7 of the ESA properly focuses on the effects of an action on a particular unit of critical habitat or on total critical habitat nationwide.”  The court had previously highlighted the fact that the proposed project would affect only a very small percentage loss of the total critical habitat for the species.  In its amended opinion (PDF), the court revised its analysis to include the percentage loss for each species’ unit in addition to the percentage of nationwide loss.  It concluded that the project would destroy only a very small percentage of each affected species’ critical habitat whether viewed on a unit or nationwide basis, and, therefore, the Service’s determination that critical habitat would be destroyed was not inconsistent with its finding of no “adverse modification.”

ESA Take Prohibition Does Not Apply to Endangered Plants On Privately-Owned Wetlands

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned “waters of the United States” is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to “remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction.” The court rejected plaintiffs’ argument that the term “areas under federal jurisdiction” includes areas that qualify as wetlands and other “waters of the United States” under the Clean Water Act. The decision is important because it is the first circuit court decision to interpret the jurisdictional scope of the plant protection provisions of section 9 of the ESA.

Employees of the California Department of Fish and Game identified the endangered Sebastopol meadowfoam on private land within an area determined to be an “adjacent wetland” under the federal Clean Water Act. Suspecting that the plants had been unlawfully transplanted, a Fish and Game employee removed the plants to a Fish and Game evidence locker. Plaintiffs sued the Fish and Game employees and the landowner for violating the ESA. The plaintiffs argued that the term “areas under federal jurisdiction” in section 9(a)(2) of the ESA included areas within the regulatory jurisdiction of the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. The Ninth Circuit disagreed. It concluded that the term “areas under federal jurisdiction” was ambiguous, and interpreted the term “as not including all of the ‘waters of the United States’ as defined by the [Clean Water Act] and its regulations. The court acknowledged that the decision did not foreclose the possibility that the U.S. Fish and Wildlife Service might adopt some other statutory construction. In this case, the Service sided with the defendants and argued that ESA prohibition on “removing” endangered plants applies to endangered plants on federal land and on federal property interests such as conservation easements, leasehold estates, and special management areas.

Tenth Circuit Affirms Decision to Establish an Experimental Falcon Population in New Mexico

 The United States Court of Appeals for the Tenth Circuit affirmed (PDF) a lower court decision denying a petition for review submitted by Forest Guardians challenging the decision of the Fish and Wildlife Service (Service) to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons into portions of southern New Mexico. The species was listed (PDF) as endangered in 1986 because it was believed extirpated from its historic range of portions of Arizona, New Mexico, and Texas in the United States though it persisted in northern Mexico. In 2001, individuals of the species were sighted nesting in Luna County, New Mexico. In subsequent years, other individual Falcons were sighted in the same area. In 2005, the Service proposed a rule (PDF) under section 10(j) of the Endangered Species Act (ESA) that would authorize reintroduction of captive-bred Falcons in Arizona and New Mexico. Then in 2006 the Service issued a final 10(j) rule authorizing reintroduction in southern New Mexico. The Service noted the existence of a small number of individual Falcons in the wild in New Mexico in the rule, but it concluded that these individuals do not constitute a population. It also stated that the nonessential experimental population would be introduced in a geographically distinct area from naturally occurring Falcon populations.

Forest Guardians filed an action in 2006 in the United States District Court for the District of New Mexico to compel the Service to respond to a petition to designate critical habitat for the Falcon it had previously submitted and to challenge the 10(j) rule on the grounds that the Service violated the ESA and National Environmental Policy Act (NEPA) in promulgating the rule. The trial court held for Forest Guardians with respect to the critical habitat cause of action, but held for the Service with respect to the other causes of action. Forest Guardians then appealed. Forest Guardians challenged the Service’s application of its own definition of “population” under the ESA, but the Tenth Circuit held that the Service’s definition constitutes a reasonable interpretation of the Act and that substantial evidence supports the Service’s application of that definition in this instance. The court relied substantially on two factual conclusions reached by the Service: that a single breeding pair of falcons does not constitute a population and that dispersing falcons in New Mexico were too distant for the population in Mexico to form part of that population. Forest Guardians also challenged the Service’s issuance of the 10(j) rule on the grounds it violated NEPA, claiming that the Service predetermined the outcome of its analysis. The court rejected this claim as well.

Ninth Circuit Overturns Grazing Regulation Amendments for Violation of Endangered Species Act

In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit  upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations.  The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.

BLM began the process of amending the grazing regulations in 2002 and assembled a total of three interdisciplinary teams to review the proposed changes.  Two of these teams criticized the new regulations and concluded they would ultimately lead to environmental harm and would cause a "slow long-term adverse effect on wildlife and biological diversity in general."  BLM ignored these conclusions and in 2006 issued a final rule (PDF) adopting the proposed regulations.  The 2006 regulations made three principal changes to the regulations:  (1) they decreased the level of public input in public rangelands management, (2) they generally made it more difficult for BLM to conduct environmental enforcement on public rangelands, and (3) they ceded ownership rights to permanent rangeland structures and water from the United States to private ranchers.  With respect to the ESA, BLM concluded that the 2006 regulations were merely administrative and would not have an effect on listed or candidate species or proposed or designated critical habitat and therefore no consultation with FWS was required under section 7 of the ESA.

Section 7 of the ESA requires a federal agency to consult with the Service if the federal agency determines that any action on its part may affect any listed species or designated critical habitat.  Here, the Ninth Circuit found that BLM's conclusion that the 2006 regulations would not affect listed species or critical habitat was arbitrary and capricious.  First, the court noted that the "sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments 'may affect' a listed species or its critical habitat."  Second, the Service itself concluded that the 2006 regulations would affect special status species and their habitat.  The Service was primarily concerned with the decrease of public input and change in water ownership, which would reduce habitat quality and have a long-term adverse effect on wildlife.  Third, even BLM's own scientists advised the agency that a section 7 consultation was necessary.  Finally, plaintiffs submitted extra-record testimony that the regulations would have an adverse effect on wildlife and biological diversity, listed salmonids, and many listed bird species.  Therefore, the court concluded that BLM had no rational basis to conclude that the 2006 regulations would not affect listed species or their habitat.