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

In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied from the criteria in the adopted recovery plan.

The court rejected the Service’s argument that the recovery plan merely provided guidance and that the Service could delist a species based on the factors for listing and delisting in section 4(a) of the ESA without first amending the recovery plan. Recovery plans are often ignored by the regulated community. This decision is a reminder that recovery plans have real world consequences.

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The New York Times recently reported that, in an effort to offset the rising costs associated with the review of federal listing petitions, which must be acted on pursuant to statutorily mandated deadlines set forth in the federal Endangered Species Act ("ESA"), the U.S. Fish and Wildlife Service ("Service") has requested that Congress impose a cap on funds that can be spent responding to ESA listing petitions.  (The New York Times, 3/24/2011, by Lawrence Hurley.)  In the past, environmental groups have been quick to challenge the Service's failure to comply with the statutorily mandated deadlines in court.  The Department believes that a cap would dissuade such lawsuits in the future, as the Service could assert a futility defense:  that is, there simply is no funding to complete the review.  As noted in the recent report by The New York Times, environmental groups have criticized the proposal, asserting that if the Service believes it does not have sufficient funds to address the increasing number of listing petitions, the Service should simply request additional resources from Congress.

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The Ninth Circuit Court of Appeals held that the regulation of water deliveries from the State Water Project and Central Valley Project to protect the threatened delta smelt did not violate the Commerce Clause of the United States Constitution.  San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-19152 (9th Cir. March 25, 2011). 

The decision is the latest in a series of decisions by the federal appellate courts rejecting Commerce Clause challenges to the Endangered Species Act (“ESA”). The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The Supreme Court has, to date, declined to review any of the ESA Commerce Clause decisions.

The Ninth Circuit, however, rejected the argument of the Fish and Wildlife Service (and the conclusion of the district court below) that the farming company plaintiffs did not have standing to bring the lawsuit. The court concluded that the companies were not required to show a threat of imminent enforcement under the ESA. The coercive ability of the Fish and Wildlife Service to enforce the ESA is sufficient to satisfy the causation element of standing. The court’s decision provides additional support for the standing of economic interests in other pending Delta lawsuits brought under the ESA.

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The United States Fish & Wildlife Service (“Service”) has reached an agreement with the majority of the plaintiffs, including the Defenders of Wildlife, the Greater Yellowstone Coalition, and eight other conservation organizations, to settle ongoing litigation over a Federal District Court’s 2010 decision (pdf) to reinstate Endangered Species Act (“ESA”) protections for the Rocky Mountain gray wolf.

The proposed settlement allows the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to recover the species in other parts of the Rocky Mountains. Federal protections would remain in place in Wyoming and portions of Oregon, Washington and Utah. Separate negotiations are ongoing between the Service and the State of Wyoming regarding a state management plan that could facilitate a final delisting for the species in that state.

According to Department of the Interior Deputy Secretary David Hayes, “[f]or too long, management of wolves in this country has been caught up in controversy and litigation instead of rooted in science where it belongs. This proposed settlement provides a path forward to recognize the successful recovery of the gray wolf in the northern Rocky Mountains and to return its management to states and tribes."

The settlement must be approved by U.S. District Judge Donald Molloy, whose August 2010 decision addressed 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. To address this issue, the settlement provides that the Service would agree to address the delisting of wolves in the region as a distinct population segment, rather than on a state-by-state basis.

The proposed settlement would also be terminated if Congress passes its own wolf delisting language, as has been proposed in both House and Senate spending bills.

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The United States District Court for the District of Columbia upheld a decision by the Fish and Wildlife Service to exclude an area from the designation of critical habitat for the endangered Cape Sable seaside sparrow in Florida.  Center For Biological Diversity v. Salazar (D.D.C. Mar. 16, 2011) (PDF).  While conceding that the excluded area was “essential” to the sparrow’s conservation, the Service decided not to designate the area as critical habitat, in part, because of the conflict between critical habitat and the Comprehensive Everglades Restoration Project. 

The court concluded that the “balance between designating a crucial swath of critical habitat for the Sparrow, a single species, and greater flexibility for restoration of the Everglades to benefit the entire ecosystem and its many inhabiting species, is left to the Secretary’s discretion.”  Slip Op. at 32.  The decision is important because it affirms the Service’s broad discretion under the ESA to weigh and balance economic and environmental costs and benefits in the designation of critical habitat.  The Service’s decision here to balance the protection of individual species with a broader ecosystem plan stands in sharp contrast to other recent decisions by the Service to designate critical habitat in areas with approved habitat conservation plans.  These other recent critical habitat decisions create a disincentive for landowners to participate in habitat conservation plans.

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On March 13, 2011, it was reported that the U.S. Fish and Wildlife Service (“Service”) is authorized to prepare a new proposed rule and proposed critical habitat for the Gunnison sage-grouse (Centrocercus minimus). This news follows a September 27, 2010 decision (PDF) by the Service that, although the Gunnison sage-grouse warrants protection under the Endangered Species Act (“ESA”), protection would be delayed while the Service addressed the needs of other high priority species.

The Gunnison sage-grouse is a small ground bird with speckled plumage and an ornate mating ritual.  The historic distribution of the species included southwestern Colorado, southeastern Utah, northeastern Arizona, and northwestern New Mexico.  Today, there are approximately 5,000 breeding individuals in seven separate populations in southwestern Colorado and southeastern Utah.  The largest of those populations consists of about 4,000 birds inhabiting the Gunnison Basin.  Predation and the fragmentation and loss of habitat due to human activity are among the primary factors contributing to the bird’s declining populations.

If the Service decides to list the Gunnison sage-grouse, it will mark the end of a decade-long effort to list the species under the ESA. The Gunnison sage-grouse was originally placed on the candidate species list in January 2000 shortly before the Service received a petition (PDF) to list the species. Now that resources have become available and it has approval, the Service will prepare a proposed rule using data about the species and its habitat.  After publication of the proposed rule in the Federal Register and a 60-day public comment period, the Service will have one year to make a final decision whether to list the Gunnison sage-grouse as threatened or endangered.  It was reported that the Service would designate critical habitat at the same time it issued a listing decision.

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The Fish and Wildlife Service, proposed (PDF) today to designate critical habitat for the Chiricahua leopard frog (Lithobates chiricahuensis) under the Endangered Species Act (ESA).  In addition, because of a taxonomic revision of the Chiricahua leopard frog, the Service is reassessing the status of and threats to the species.

The Service proposed designation of approximately 11,136 acres as critical habitat (PDF) for the species.  The proposed critical habitat is located in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New Mexico.

The species was first listed as threatened in 2002.  At that time, the Ramsey leopard frog, found on the eastern slopes of the Huachuca Mountains in Cochise County, was thought to be a unique species. The Service has since determined that the Ramsey leopard frog is taxonomically identical to the Chiricauhua leopard frog.  As a result, the Service is now reassessing the status of and threats to the species and proposing to continue its protection as threatened under the ESA.  The current listing includes a special rule to encourage owners of occupied ponds to routinely maintain their ponds. Today’s proposal retains that rule.

According to the Center for Biological Diversity, the Chiricauhua leopard frog is threatened by predation from nonnative species, a fungal disease, and habitat degradation from livestock grazing, mining, stream diversions, groundwater pumping and loss of natural fire regimes.

The Service will consider comments on the proposed listing received or postmarked on or before May 16, 2011.
 

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The U.S. Fish and Wildlife Service has announced it will accept comments through April 9, 2011 regarding a status review of the longfin smelt (Spirinchus thaleichthys).  In a press release (pdf) announcing that the Service is now accepting comments, the Service states that, based on the status review, it will issue a final 12-month finding by September 30, 2011, that will address whether the listing may be warranted under the Endangered Species Act (ESA).  The Service has twice previously made determinations not to list the species under the ESA, most recently in a determination (pdf) published in the Federal Register on April 9, 2009.  As we explained in a prior post, the Service agreed to issue a 12-month finding by September 30, 2011, as part of a settlement agreement with the Center for Biological Diversity and the Bay Institute.

The longfin smelt has a range from Monterey Bay, California to Prince William Sound, Alaska, and there are two known, landlocked populations.  Across much of that range, longfin smelt are abundant.  But abundance data indicate that the San Francisco Bay-Delta population has declined substantially.

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As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade association claims will cost tens of millions to billions of dollars in project delays and administrative costs--costs that AOGA says the Service unlawfully failed to take into consideration in the final rule.

Specifically, AOGA claims that the Service violated the ESA by:

• Improperly designated areas that lack the physical and biological features "essential to the conservation of the species";
• Improperly including in critical habitat vast areas that lack any present or foreseeable need for special management;
• Underestimating the economic impact of the designation by tens of millions, if not billions of dollars;
• Failing to exclude areas from the designation where the relative benefits of exclusion outweigh the relative benefits of inclusion;
• Failing to base the designation on the best scientific data available; and
• Enacting a "no disturbance zone" extending one mile around all designated barrier island habitat.

Similar suits are expected to follow, since the State of Alaska and a coalition of Native American groups also filed 60-day notices to sue the Service over the designation.

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On March 2, 2011, the U.S. Fish and Wildlife Service (Service) completed its formal review of the status of the eastern cougar (Felis concolor couguar) and concluded that the subspecies is extinct.  The existence of the subspecies, listed since 1973, has long been questioned.  Dr. Mark McCollough, the Service's lead scientist for subspecies, noted that the eastern cougar has likely been extinct since the 1930s.  Though sightings had been reported, the Service believes they are not of the eastern cougar.  Rather, the Service believes that the sightings were actually of South American subspecies held in captivity and escaped or released into the wild, or of the western United States subspecies that had migrated eastward.  The Service will now prepare a proposal to remove the eastern cougar from the endangered species list.

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On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration or reregistration of a pesticide.  Among the requirements, EPA must find that the pesticide will perform without "unreasonable adverse effects" on the environment.  FIFRA further provides that all EPA registration determinations are subject to judicial review in the Court of Appeals in the first instance, rather than in district court.

In 2004, as a result of a previous action filed by several environmental groups, EPA initiated formal consultation with the Service on 37 active pesticide ingredients.  In 2008, the Service issued a biological opinion (pdf) concluding that 3 of the pesticide ingredients would jeopardize numerous salmonid species and adversely affect their critical habitat.  The biological opinion was accompanied by a reasonable and prudent alternative and an incidental take statement.

Shortly after the Service issued the biological opinion, but before EPA issued a registration determination, a group of pesticide registrants and manufacturers filed suit under the federal Administrative Procedure Act, alleging that the biological opinion was not based on the "best scientific data available," a requirement of the federal Endangered Species Act.  The Service moved to dismiss the litigation on the ground that FIFRA provided the sole means of challenging the biological opinion, and an action under FIFRA could not be initiated until EPA made a registration determination.  The district court found the Service's argument persuasive, and dismissed the action, concluding that because FIFRA provided a means for reviewing the biological opinion, and because the APA is only implicated if there is a "final agency action for which there is no other adequate remedy in a court" of competent jurisdiction, the litigation had to wait until EPA made a registration determination, after which the biological opinion and registration determination could be concurrently challenged via an action brought before the Court of Appeals. 

The Fourth Circuit reversed, interpreting FIFRA's judicial review provision as applying only to agency actions either by EPA or inherent in EPA's eventual registration determination, and finding that the biological opinion was a separate agency action by the Service with its own independent and ongoing legal consequences.  Therefore, the Court held that the biological opinion was immediately reviewable under the APA.

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On February 25, the United States District Court for the Eastern District of California entered a stipulated order (pdf) establishing operational criteria for the Central Valley Project and State Water Project through June 30, 2011, in lieu of the Reasonable and Prudent Alternative prescribed by the U.S. Fish and Wildlife Service 2008 biological opinion (pdf) regarding the effects of the Water Projects on delta smelt.  The settlement that led to the order received widespread media attention, including this story by Reuters.  The memorandum decision of the court holding that the biological opinion is unlawful and remanding it to the Service is available here (pdf).

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