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

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On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species.   See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).

The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline.  In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.

Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.

Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened.  If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear.  Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.

The environmental plaintiffs have also challenged the validity of the 4(d) rule itself.  Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.

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On October 19, 2010 the San Francisco Superior Court issued an order requiring the California Fish and Game Commission (Commission) to reconsider its determination that the American pika is not threatened with extinction.  Center for Biological Diversity v. California Fish & Game Comm'n, No. CPF-090509927 (San Francisco Superior Court).

In 2008, the Center for Biological Diversity (CBD) filed a petition to list the pika as threatened under the California Endangered Species Act (CESA).  CBD argues that the pika is threatened with extinction because climate change in the form of increasing average temperatures in California's eastern Sierra Nevada mountain range has reduced the pika's alpine habitat by driving the pika, a species especially sensitive to ambient temperatures, to move to higher, cooler elevations.  As its habitat has shrunk, its population has declined.

The petition is part of CBD's and other environmental organizations' ongoing effort, previously blogged about here, to convince state and federal wildlife agencies to list species as threatened or endangered due to climate change.  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 California, e.g., could become subject to CESA regulations protecting pika hundreds of miles away. See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

As blogged about here, the Fish & Wildlife Service recently determined that listing of the pika under the federal Endangered Species Act is not warranted, despite predicted increases in the average ambient temperatures in the pika's range.  In determining that listing of the Mohave ground squirrel may be warranted, it did not agree with the petitioners there that climate change can be identified as a significant factor because it does not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."

However, the Fish & Wildlife Service has recently listed the African penguin as endangered, due, in part, to climate change.  It is also in the process of determining whether listing is warranted for Whitebark pine, and the National Marine Fisheries Service is considering the impacts of climate change and other factors on 82 species of stony coral.

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On July 21, 2010, the United States District Court for the Middle District of Florida ordered the dismissal of an Endangered Species Act ("ESA") challenge brought by no less than three states, six cities, and a host of local agencies (collectively, "Plaintiffs"), holding that the determination of the U.S. Fish & Wildlife Service ("Service") was entitled to deference. 

The multi-district litigation, which also included a claim under the National Environmental Policy Act, alleged that the 2008 Biological Opinion issued by the Service for the U.S. Army Corps of Engineers' ("Corps") operation of the Apalachicola-Chattahoochee-Flint river basin was arbitrary and capricious.  The Plaintiffs' ESA claims centered on three listed species: the threatened Gulf sturgeon, the endangered fat threeridge mussel, and the threatened purple bankclimber mussel.  Specifically, Plaintiffs argued that the Service failed to use the proper environmental baseline, failed to issue necessary incidental take statements for the Gulf sturgeon, and failed to properly analyze potential impacts when issuing incidental take statements for the fat threeridge mussel and purple bankclimber mussel. 

With respect to the baseline, Plaintiffs argued that the Service improperly segmented its analysis of the Corps' operational activities.  The District Court found this argument unpersuasive, stating that it was "an attempt to state a claim under the ESA for what is, in fact, a claim under NEPA."

With respect to the Gulf sturgeon, Plaintiffs argued that because the Service stated in the Biological Opinion that the Corps' operational activities "could" result in take, an incidental take permit was required.  The District Court, however, rejected this argument, noting that the Service also found that take was unlikely, and therefore the Plaintiffs were essentially arguing with the Service's ultimate conclusion, not the evidence it relied on.  The District Court stated that in such a situation, it must defer to the Service's scientific determination.

With respect to the purple bankclimber mussels, the Plaintiffs argued that because the Service did not know the total population of the species, it could not justify any take allowance.  The District Court noted that the Service found that the Corps' operational activities were unlikely to affect the species, and that even if the Service is lacking adequate data, it is authorized to develop a biological opinion by giving the species "the benefit of the doubt."  Therefore, because the Service gave the species the benefit of the doubt when developing the Biological Opinion and issuing the incidental take statement, and also required the agency to perform follow-up studies and to reinitiate consultation if those studies resulted in additional relevant information, the District Court held that the Service complied with the ESA.

Finally, with respect to the fat threeridge mussel, the Plaintiffs argued that the Corps' operational activities would result in jeopardy, and the Service and Corps have an obligation to stop the decline of the species.  The District Court rejected this argument, again finding that the Plaintiffs were arguing with the Service's ultimate conclusions, not the evidence it relied on, and therefore the Service's determination was entitled to deference.

Thus, the District Court rejected all of Plaintiffs' ESA challenges, denied Plaintiffs' motions for partial summary judgment, and dismissed Plaintiffs' ESA claims.  The District Court's decision was appealed to the United States Court of Appeals for the Eleventh Circuit, and it is currently pending.

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According to an article published in the Wall Street Journal this week, the Bay Delta Conservation Plan will be subject to further delays that will preclude the planned released of a draft in November 2010.  The Bay Delta Conservation Plan (BDCP) is intended to service as a Habitat Conservation Plan under the federal Endangered Species Act and Natural Communities Conservation Plan under the California Fish and Game Code.  If approved, it would provide authorizations for operation of the Central Valley Project and State Water Project, which provide water to approximately 25 million Californians.

The delay reported will likely affect the timing of any review of the draft BDCP by the National Research Council (NRC).  As we previously reported here, the NRC agreed to appoint a panel to complete an independent review of the draft BDCP by April 2011, provided it receives the draft by November 24, 2010.

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The U.S. Fish and Wildlife Service (“Service”) announced this week the final rule for the revised 2005 critical habitat designation for the bull trout, a threatened species under the Endangered Species Act. The 2005 critical habitat designation had been struck down by a federal court last year after an inspector general’s report found improper political influence during the rulemaking process. 

The final rule, which will become effective November 17, 2010, identifies 32 critical habitat units on 3,500 water body segments across five states.  Approximately 18,975 miles of streams and 488,252 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana, and Nevada are being designated as critical habitat for the species.  An additional 754 miles of marine shoreline are also being designated in Washington.  While critical habitat for bull trout applies only to waterways, the rule recognizes that associated flood plains, shorelines, riparian zones, and upland habitat are important to critical habitat areas and that activities in these areas may affect bull trout critical habitat as well.

When compared to the proposed rule issued by the Service in January, the designation shows a net reduction of approximately 12.5% of the streams, 8.5% of lakes, and 23.5% of marine shoreline habitat.  According to the Service, these changes reflect new biological information received during the comment period resulting in the addition of some habitats and the removal of others, and exclusion of specific areas under section 4(b)(2) of the Act based on ongoing conservation measures, activities, agreements, and other factors.  For more information the proposed rule, see our earlier post. 

Bull trout are primarily threatened by habitat degredation and fragmentation, blockage of migratory corridors, poor water quality, the effects of climate change and past fisheries management practices.

The final rule will be published in the Federal Register on October 18, 2010.  For a YouTube video on the bull trout, click here.

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The Fish and Wildlife Service issued a final rule (pdf) designating critical habitat for spreading navarretia (Navarretia fossalis), a plant species native to southern California.  The rule designates approximately 6,720 acres of land as critical habitat for the species in five southern California counties: Los Angeles, Riverside, San Diego, San Luis Obispo, and Ventura.  In a previous rule issued in 2005, the Service had designated approximately 652 acres as critical habitat for the species.  The Center for Biological Diversity filed a lawsuit against the Service in the United States District Court for the Southern District of California challenging the prior rule, and the parties eventually entered into a settlement whereby the Service agreed to revise that rule.

According to the Service (pdf), spreading navarretia is an annual herb that grows between 4 and 6 inches tall.  It is primarily found in vernal pool, alkali grasslands, alkali playas and alkali sinks.

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The Fish and Wildlife Service (“Service”) announced yesterday that the Sacramento splittail, a fish endemic to California's Central Valley, does not warrant protection under the Endangered Species Act, stating that the best available science shows no recent decline in the overall abundance of the species nor threats that rise to the level of being significant to the splittail at the population level.

This decision marks the conclusion of a seven year controversy between politicians and scientists that began when the Service removed the fish from the threatened species list, overruling Service biologists recommendation to the contrary.  Julie MacDonald, a former Deputy Assistant Secretary in the Department of the Interior, was heavily involved in delisting the Sacramento splittail.  Later it was found that MacDonald owned an 80-acre farm in the splittail’s habitat, which has a range that centers on the San Francisco Estuary (see earlier post).

While biologists favored listing the Sacramento splittail as threatened in 2003, counting populations of the fish by using straight surveys, scientists now say that natural fluctuations of population numbers demonstrate a pattern of successful spawning during wet years followed by reduced spawning during dry years.  Further, the Service reports that a number of habitat restoration actions benefiting the splittail are underway including species enhancement conservation measures, creation of new seasonal floodplains, and new state fishing regulations limiting the take of splittail. The Sacramento splittail is also one of the species targeted for protection under the proposed multi-agency Bay Delta Conservation Plan.

Still, environmental groups are not happy with this decision, claiming the Service’s conclusions are “outrageous” and scientifically unjustified.  Some argue that the Service’s decision regarding the species is politically charged: "Including it on the list would add a layer of complication to an already dizzying set of issues in the Delta, where a biological collapse is putting pressure on water supplies statewide,” says Mike Taugher with the Contra Costa Times.  The Center for Biological Diversity has indicated it plans to take the Service to court to press for a reversal of the decision. 

The Service’s finding is expected to be published in the Federal Register on October 7, 2010.

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In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule (PDF) effective October 28, 2010 listing the African Penguin as "endangered" under the Endangered Species Act.  Unlike its prior listing decision for five other species of penguins, in this instance, the Fish and Wildlife Service has determined that climate change contributes to the threats facing the species "through rising sea levels, increasing sea surface temperatures, declines in upwelling intensities, predicted increases in frequency and intensity of El Niño events in the Benguela marine ecosystem, and predicted increases in sulphide eruptions."

Because the species is not native to the United States, no critical habitat will be designated for the African Penguin.  Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on African penguins.  This requirement is especially significant where, as here, the Service finds that climate change is contributing to a listed species' decline.  Because greenhouse gas (GHG) emissions anywhere may contribute to global climate change, it can be argued, for example, that the Environmental Protection Agency must consult with the Service when promulgating regulations under the Clean Air Act, or even when issuing individual Clean Air Act permits that may result in substantial increases in GHG emissions.

The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.  Finally, listing results in the prohibition of the import or export of any of the species, or their parts or products, as well as their sale in interstate or foreign commerce.

Under the terms of the settlement agreement, the Service must issue a final rule regarding listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.  Notably, the Service previously determined that listing is not warranted for two species of penguin.  In a recent press release regarding the African penguin final rule, the Center for Biological Diversity states that "The Center and TIRN [the Turtle Island Restoration Network] plan to file suit against [the Department of the] Interior for denying listing to emperor and northern rockhopper penguins despite scientific evidence that they are jeopardized by climate change and commercial fisheries."

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On October 1, 2010, the California Fish and Game Commission declared the mountain yellow-legged frog a candidate species (PDF) as defined by section 2068 of the Fish and Game Code.  The Commission accepted the petition to list the mountain yellow-legged frog as endangered at its September 15, 2010 meeting.  The Center for Biological Diversity previously submitted (PDF) a petition to the Commission to list the mountain yellow-legged frog as endangered on January 27, 2010.  The Commission transmitted the petition to the California Department of Fish and Game for review.

The mountain yellow-legged frog consists of two species.  The southern mountain yellow-legged frog (Rana muscosa) is native to the southern Sierra Nevada and the Transverse Ranges.  The Sierra Nevada mountain yellow-legged frog (Rana sierrae) is native to the northern and central Sierra Nevada.  Though once abundant in their respective habitats, re-surveys of historic locations (PDF) show that 95.2% of R. muscosa and 93.3% of R. sierrae populations are locally extinct.  Now that the Commission has declared the mountain yellow-legged frog a candidate species, the Department of Fish and Game must submit a written report within one year indicating whether listing the species is warranted.

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On Wednesday, September 22nd, Sens. Mike Crapo and Jim Risch of Idaho introduced SB 3825 (.PDF), which would remove the Rocky Mountain gray wolf from the list of threatened or endangered species under the Endangered Species Act (ESA) in the states of Idaho and Montana.  The proposed legislation, titled the State Wolf Management Act of 2010, is intended to turn wolf management over to the states to promote certainty among citizens, hunters, and sheep and cattle ranchers.  The bill was introduced in response to a federal court’s ruling in early August, which put gray wolves in Idaho and Montana under the protection of the ESA.

In Defenders of Wildlife v. Salazar (.PDF), plaintiffs asserted, among other things, that the U.S. Fish and Wildlife Service (FWS) had violated the ESA by de-listing the gray wolf in the states of Montana and Idaho while leaving federal protections in place for wolves in Wyoming.  In ruling in favor of the plaintiffs, Judge Donald Molloy held that the FWS had violated the ESA by only listing distinct population segments of the gray wolf as endangered.  The court found that the ESA mandates that the entire region’s wolf population be listed as an endangered species, rather than the wolf’s status being different from state to state.  The court’s ruling reinstated the federal protections on the gray wolf in all three states until Wyoming brings its wolf management into alignment with Idaho and Montana.

Idaho and Montana have successfully restored the wolf population within their borders in recent years, and the proposed legislation reflects the position that the states can manage the wolves in a sustainable and responsible way.  The increase in the wolf population has brought livestock losses for ranchers, and, according to the Billings Gazette, the bill would enable Idaho and Montana to reinstate a wolf hunting quota to help manage the wolf population.  The bill would require the Department of the Interior to de-list the gray wolf in Idaho and Montana, as well as in limited portions of Washington, Oregon and Utah, within one year.  The bill is currently before the Senate Committee on Environment and Public Works.
 

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