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

On December 14, 2010, the U.S. Fish & Wildlife Service published its final rule (PDF) redesignating critical habitat for the Santa Ana sucker, a small fish species occurring in watershed draining the San Gabriel and San Bernardino mountains of southern California.  The Final Rule designates a total of 9,931 acres across San Bernardino, Riverside, Los Angeles, and Orange counties and is comprised of 7,097 acres in the Santa Ana River, 1,000 acres in the San Gabriel River, and 1,233 acres in Big Tujunga Creek.  The Final Rule increased the sucker’s net critical habitat by approximately 1,026 acres over the Service’s 2005 rule (PDF).

The Santa Ana sucker was listed as threatened in the Santa Ana River, San Gabriel River, and Big Tujunga Creek in 2000.  In 2005, the Service designated critical habitat for the sucker in the San Gabriel River (5,765 acres) and Big Tujunga Creek (2,540) totaling 8,305 acres.  In the 2005 final rule, the Service did not designate critical habitat for those portions of the Santa Ana River covered by habitat management plans--the Western Riverside Multiple Species Habitat Conservation Plan and the Santa Ana Sucker Conservation Program--consistent with established policy.  Nor did the Service designate portions of the Santa Ana River not covered by habitat management plans, which are also unoccupied.  In its 2005 final rule the Service explained that although these areas provide necessary flood conditions and sediments and small cobblestones that is passes to the downstream area occupied by the sucker, those features alone are not sufficient to meet the statutory required statutory standard --“essential to the conservation of the species” -- particularly in light of Congressional direction to be “exceedingly circumspect” in designating critical habitat outside of areas currently occupied by the species. 

In its 2010 Final Rule the Service performs an about-face, which is evident in new critical habitat designation of 7,097 acres in the Santa Ana River.  The Service lifts the exclusion of those portions of the Santa Ana River subject to the Western Riverside Multiple Species Habitat Conservation Plan (approved in 2004) and the Santa Ana Sucker Conservation Program (2000) because they have not yet been sufficiently implemented to yield benefits to the sucker.  The Service continues its reversal by designating as critical habitat upstream unoccupied areas in the Santa Ana River based on necessary water flows and coarse sediments deemed essential for the conservation of the species. 

Acreage reductions in the San Gabriel River and Big Tujunga Creek units, as well as mapping changes within the Santa Ana River critical habitat unit, reflect refined mapping capabilities, changes to the criteria used to identify critical habitat, such as a slope limit of 7 degrees, and reevaluation of the 2005 rule, which, was compelled by court order from the U.S. District Court of the Central District of California as a result of a stipulated settlement agreement with California Trout and other environmental groups.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On December 14, 2010, the United States District Court for the Eastern District of California issued a 225 page decision (pdf) granting in part plaintiffs' motions for summary judgment in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. Dec. 14, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.  The court held for plaintiffs on numerous grounds.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since the Service acts as both the action agency (as operator of the hatchery) and consulting agency (as the agency required to issue biological opinions for the species).

Plaintiffs challenged both the biological opinion and the incidental take statement issued by the Service on a number of grounds.  The Ninth Circuit summarized its holding as follows:

[T]he Service committed legal error by limiting the scope of the action to five years; failing to articulate a rational connection between its findings in the 2008 BiOp and its no jeopardy conclusion; and issuing an inadequate incidental take statement. The Hatchery’s reliance on a legally flawed biological opinion was arbitrary and capricious.

With respect to the Service's decision to limit the scope of the action to five years, the Ninth Circuit noted that the hatchery had been operating for 70 years "and is expected to continue operating into the future."  The court held that the Service's failure to take into account a long view of the hatchery's effects was arbitrary and capricious.  With respect to the Service's no jeopardy determination, the Ninth Circuit said it was not possible to square the conclusion that the population trend of bull trout in Icicle Creek is negative with the conclusion that the distribution and abundance of the species in the action area is not likely to change.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Introduced by eight U.S. Representatives, HR 6485 (.pdf) provides that the inclusion of the gray wolf on any list of endangered or threatened species under Section 4 of the Endangered Species Act (ESA) will have no force or effect. Titled the State Sovereignty Wildlife Management Act, the bill is one of several (see SB 3825 (.pdf) and SB 3864 (.pdf)) that has been introduced over the past few months with the goal of returning wolf management to the states. The proposed legislation is meant to improve the balance of both wolf and prey populations by allowing individual states to develop management plans that address their unique needs.

The recent bills, including HR 6485, have been proposed in response to a federal judge’s decision in August that resumed ESA protection for wolves in Montana and Idaho. In Defenders of Wildlife v. Salazar (.pdf), the issue before the court was whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states.

The court’s decision has frustrated Montana’s and Idaho’s efforts to manage and control their growing wolf populations. According to the Helena Independent Record, the population of gray wolves in the Northern Rockies is more than 1700, which far exceeds the reintroduction goal of 300 when the wolf was originally listed under the ESA. Thus, according to its sponsors, the legislation will enable the states to control the wolf populations’ while limiting their effect on big game populations and local livestock.

Certain sponsors of the bill are hopeful about the possibility of attaching the bill in the lame-duck session, possibly as part of an omnibus spending bill or a continuing resolution. Others are unsure whether it will have an opportunity to pass, given that earlier wolf bills have had little success.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 24, 2010, the U.S. Fish and Wildlife Service announced a final rule (PDF) designating 187,157 square miles of on- and off-shore habitat in northern Alaska as critical habitat for two populations of polar bear listed as threatened under the Endangered Species Act. 

The Service originally proposed to designate 200,541 square miles of critical habitat.  However, the final designation removed land that turned out to lie beyond the U.S. territorial waters, five U.S. Air Force (USAF) radar sites, the Native communities of Barrow and Kaktovik, and all existing man-made structures.  According to the Service, the radar sites are already subject to Integrated Natural Resource Management Plans, and the Native communities have a history of coordinating with the Service regarding polar bear management and conservation.

Because approximately 95% of the designated habitat consists of sea ice in the Beaufort and Chukchi Seas where oil and gas development occurs, there has been significant concern about the new rule's economic impact on industry, landowners, Alaska Native Regional Corporations, and other stakeholders.  According to the Service's economic analysis (PDF 10MB), the designation of critical habitat will not result in any significant incremental economic impact because the polar bear is already protected under the Endangered Species Act as a threatened species, under the Marine Mammal Protection Act of 1972 (MMPA), and under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) signed in 1973.  Thus, activities such as oil and gas exploration and production that require federal permits or other approvals are already subject to incidental take regulations.  As a result, the Service has determined that designation of critical habitat will not result in additional polar bear conservation measures, and thus economic impacts are forecast to be limited to additional administrative costs.

Nevertheless, stakeholders are concerned that the designation of critical habitat will spur litigation, which creates regulatory uncertainty and discourages investment.

The final rule will become effective 30 days after it appears in the Federal Register.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 30, 2010, the United States Fish and Wildlife Service ("Service") designated approximately 783 acres of land in Riverside and San Diego Counties, California, as critical habitat for the plant San Diego ambrosia (Ambrosia pumila).  This is approximately 329 acres less than the Service had previously proposed.  The Service's designation excluded approximately 118 acres of critical habitat that fell within the Western Riverside County Multiple Species Habitat Conservation Plan.  In its final economic analysis, the Service estimated that the critical habitat designation would have an incremental cost of less than $9,000 over the next 20 years. 

San Diego ambrosia is distributed from northwestern Riverside County to northwestern Baja California, Mexico.  It grows approximately 2 to 12 inches high and produces yellowish to greenish-colored flowers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 23, 2010, in Humane Society of the United States v. Locke, the U.S. Court of Appeals for the Ninth Circuit held (pdf) that NMFS violated the Marine Mammal Protection Act (MMPA) by failing to adequately explain its finding that sea lions are having a “significant negative impact” on the decline or recovery of salmonid species listed under the Endangered Species Act (ESA) in the Columbia River. The ruling invalidated NMFS’s decision authorizing the states of Washington, Oregon, and Idaho to lethally remove California sea lions from the Bonneville Dam area. The 2008 decision (pdf) allowed the states to take the lesser of either 85 sea lions per year, or the number required to reduce the observed predation rate to one percent of the salmonid run at the dam. The authorization had been provided pursuant to section 120 of the MMPA, which allows “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which . . . have been listed as threatened . . . or endangered species under the [ESA].”

The court based its decision, in part, on the fact that NMFS had previously determined that fisheries that caused similar or greater mortality among the same salmonid populations were not having significant negative impacts. Specifically, NMFS had twice concluded in 2007 that the taking of ten percent of the local salmonid populations would not appreciably reduce the likelihood of recovery of the listed species. The Ninth Circuit reasoned that, absent a satisfactory explanation from NMFS, it was unable to reconcile this conclusion with the NMFS decision at issue, which determined a predation rate of one percent would negatively impact the listed species. In finding that NMFS failed to adequately explain these disparate factual determinations, the court ordered NMFS to provide an explanation sufficient to permit meaningful judicial review. According to the Seattle Times, NMFS is disappointed by the decision but hasn’t decided on its next step.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link