Federal Circuit Sends Case to Lower Court to Determine Whether Application of Endangered Species Act Can Result in a Taking

On February 11, 2011, the U.S. Court of Appeals for the Federal Circuit reversed and remanded (pdf) the decision of a lower court, finding that the U.S. Bureau of Reclamation's implementation of a reasonable and prudent alternative may have resulted in a taking requiring just compensation under the Fifth Amendment to the U.S. Constitution.

Pursuant to congressional authorization issued in 1902 and 1905, the Bureau of Reclamation (Bureau) manages and operates the Klamath Irrigation Project (Klamath Project), which provides water to approximately 240,000 acres of irrigable crop land, as well as to several national wildlife refuges in southern Oregon and Northern California.

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Proposed Lizard Listing Sparks Protests

A public rally to oppose the U.S. Fish and Wildlife Service's proposal to list the dunes sagebrush lizard (formerly known as the sand dune lizard) as endangered is being sponsored by the Permian Basin Petroleum Association in west Texas.  That proposal has drawn sharp criticism from Congressmen Steve Pearce (R-NM) and Mike Conway (R-TX). 

Both the PBPA and the Congressmen claim that the listing will cost jobs in the oil and gas industry by blocking exploration and extraction in counties on or near the Texas-New Mexico border for several years.  Advocates for the listing decision, such as the WildEarth Guardians, argue that the Fish and Wildlife Service determined that the listing is warranted years ago, and has already taken too long to promulgate a final listing rule.

Habitat for the dunes sagebrush lizard overlaps the habitat for another imperiled species, the lesser prairie chicken, which is currently being evaluated as a candidate for listing.

Currently, oil and gas companies, ranchers, and landowners can enter into Candidate Conservation Agreements or Candidate Conservation Agreements with Assurances that require them to undertake specified conservation measures to protect the lizard and prairie-chicken in exchange for certain assurances from the federal government that they will not be required to adopt additional conservation measures to continue their activities if either of the species is eventually listed.

The comment period on the proposal to list the dunes sagebrush lizard closes on May 9, 2011, and the earliest the Fish and Wildlife Service expects to issue a final rule is this coming December.

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Fish and Wildlife Service Flooded with Petitions to List Species under the Endangered Species Act

The New York Times reported that the number of petitions to list a species as threatened or endangered under the Endangered Species Act (ESA) received by the U.S. Fish and Wildlife Service (Service) has skyrocketed in recent years.

"Over the last four years, a few environmental groups have requested that more than 1,230 species be listed, compared with the previous 12 years in which annual requests averaged only 20 species."

(The New York Times, April 20, 2011, by Todd Woody.)  The increase from an average of 20 petitions to an average of more than 300 petitions is certain to tax the Service's resources.  While the number of petitions has ballooned, the amount Congress has appropriated for listing activities has remained relatively stable.

In response, the Service (pdf) has asked Congress to establish a cap on the total amount of resources that are allocated to responding to listing petitions.  (See page ES-11.)  The Times reports that "[t]wo environmental groups, the Center for Biological Diversity and WildEarth Guardians, have filed 90 percent of the listings petitions since 2007."  Environmental groups are divided regarding the wisdom of this approach, which involves flooding the Service with work that it cannot complete in a timely manner then suing the Service for failing to comply with statutory deadlines to respond to the flood of listing petitions.

Among the potential problems associated with the petition process is the concern that listing petitions may be submitted by entities with parochial interests.  As a result, there is a risk that listing priorities may be dictated by the flood of listing petitions rather than by a science-based assessment of which species would benefit most from the protections that accompany listing.

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Chinook Salmon Harvest Rates Set by Pacific Fishery Management Council

On April 20, 2011, the Pacific Fishery Management Council (Council) issued its final management measures for the 2011 salmon fisheries season. The report, titled Preseason Report III: Analysis of Council-Adopted Regulatory Measures for 2011 Ocean Salmon Fisheries (pdf), covers the period of May 1, 2011 through April 30, 2012, and is the last in a series of three preseason reports prepared by the Council’s Salmon Technical Team to guide salmon fishery management off the coasts of Washington, Oregon and California. The report will be submitted to the National Marine Fisheries Service (NMFS) to be approved and implemented by NMFS pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The Council expects that the measures will go into effect May 1, 2011.

The report indicates, among other things, that an ocean harvest is permitted in 2011 for Sacramento River fall run (SRFR) Chinook salmon. Based on an estimated SRFR Chinook population of 729,900 adults, the management measures provide for an escapement of 377,000 fish. Accordingly, based on this data, the harvest rate for SRFR Chinook for the 2011 season appears to be approximately 49%, or 352,900 fish.

According to the biological opinion (pdf) issued in April 2010 regarding ocean salmon fisheries, the SRFR Chinook salmon harvest is mixed-stock, meaning that winter-run Chinook may be caught along with fall-run. Given that winter-run is listed as an endangered species under the Endangered Species Act (ESA), and that winter-run could be caught as part of the SRFR Chinook harvest, the Council’s decision to authorize a harvest rate of 49% is particularly noteworthy. However, according to the report, the Council’s 2011 regulations meet or exceed the level of protection required by all consultation standards for the salmon species listed under the ESA.

The report is the culmination of the preseason process undertaken by the Council to develop recommendations for management of ocean fisheries. The salmon management measures are adopted pursuant to the Salmon Fishery Management Plan, which describes the goals and methods for salmon management.
 

NMFS Designates Critical Habitat for the Cook Inlet Beluga Whale in Alaska

This week the National Marine Fisheries Service (NMFS) designated (PDF) 3,013 square miles (nearly 2 million acres) of marine habitat in Alaska as critical habitat for the Cook Inlet beluga whale. NMFS listed the species as endangered (PDF) in 2008 under the Endangered Species Act (ESA). Critical habitat was subsequently proposed (PDF) in 2009. The final rule includes several small changes to the areas proposed as critical habitat—most importantly, it excludes the Port of Anchorage for reasons relating to national security as well as portions of military lands.

The beluga whale is a northern hemisphere species that inhabits fjords, estuaries, and shallow waters of the Arctic and subarctic oceans. The Cook Inlet population is numerically the smallest of five distinct stocks recognized in Alaska. The Cook Inlet borders the City of Anchorage and is the most populated and fastest-growing watershed in Alaska.  The final rule announcing the species’ critical habitat will become effective on May 11, 2011.

As Part of Budget Deal, Congress is Poised to Remove Gray Wolves from the Endangered Species List

As reported by a number of news outlets including The New York Times, Congress is poised to pass an appropriations bill (pdf) to fund the federal government for the remainder of this fiscal year, which ends September 30, 2011, that includes a provision to remove the gray wolf from the list of threatened and endangered species protected by the Endangered Species Act (ESA) in the states of Idaho and Montana.  The gray wolf would remain listed in Wyoming.  (The New York Times, April 13, 2011, by Felicity Barringer and John M. Broder.)

The relevant provision is section 1713 of the bill, which requires the Secretary of the Interior to reissue a final rule delisting the the Northern Rocky Mountains distinct population segment of the gray wolf throughout its range with the exception of that portion within the State of Wyoming.  It also specifies that the reissued rule is not subject to judicial review.  As we explained in a prior blog post, after the rule was previously issued, environmental groups challenged its legality and a federal district court held that it was unlawful.

In a recent blog post, we reported that a federal district court recently refused to enter a settlement agreement between the U.S. Fish and Wildlife Service and 10 conservation groups that would have lifted ESA protections for the gray wolf in Montana and Idaho.

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Federal Judge Denies Proposed Settlement to De-List the Gray Wolf

A federal judge has denied a proposed settlement agreement between the U.S. Fish and Wildlife Service (“Service”) and 10 conservation groups that would have lifted Endangered Species Act (“ESA”) protections for the gray wolf in Montana and Idaho. In the decision (pdf), U.S. District Judge Donald Molloy cited the court’s lack of authority to put only a portion of an endangered species’ population under state management. He reasoned that “the District Court is still constrained by the ‘rule of law.’ No matter how useful a course of conduct might be to achieve a certain end, no matter how beneficial or noble the end, the limit of power granted to the District Court must abide by the responsibilities that flow from past political decisions made by the Congress. The law cannot be ignored to accommodate a partial settlement. The rule of law does not afford the District Court the power to decide a legal issue but then at the behest of some of the litigants to reverse course and permit what the Congress has forbidden because some of those interested have sensibly, or for other reasons, decided to lay a dispute to rest.” The opinion also explained that the court couldn’t approve the settlement because not all parties involved in the litigation agreed with it.

The proposed settlement would have allowed 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 have remained in place in Wyoming and portions of Oregon, Washington and Utah. The settlement was an attempt to end ongoing litigation over Molloy’s August 2010 decision that 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.

In addition, according to the Seattle Times, the budget bill currently pending before Congress includes a provision that would take the gray wolf off the endangered species list in Montana, Idaho, Washington, Oregon and Utah. The bill requires the Obama administration to lift ESA protections for the gray wolf within 60 days. Under the proposed bill, ESA protections would remain in place in Wyoming.
 

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NMFS Finds that Listing May be Warranted for Chinook Salmon in the Upper Klamath Basin

In response to a petition to list the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered and designate critical habitat under the Endangered Species Act, the National Marine Fisheries Service issued a finding (pdf) that "the petition presents substantial scientific information indicating the petitioned actions may be warranted."  The petition (pdf) was filed by the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.  NMFS is soliciting information pertaining to the species and its habitat until June 13, 2011.

NMFS previously defined an evolutionarily significant unit (ESU) of Chinook salmon to include all spring-run and fall-run populations from the Trinity River and the Klamath River upstream from the confluence of the Trinity River.  This ESU is referred to as the Upper Klamath and Trinity Rivers Chinook salmon ESU.  The petition focuses on the status of the spring-run population as the basis for listing.

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Ninth Circuit Holds that Forest Service "Approval" of a Notice of Intent to Conduct Suction Dredge Gold Mining Does Not Trigger a Duty to Consult

Diver suction dredgingOn April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act.  Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).

Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "is an agency decision not to regulate legal private conduct.  In other words, the USFS's decision at issue results in agency inaction, not agency action."  Id. at *11. 

The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities.  But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."

The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7. 

A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'"  Id. at *6-7.  In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended.  Instead, the NOIs were agency inaction, not  "agency action" that could trigger a duty to consult under section 7.

The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits.  Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources.  Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources.  Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision.  It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]."  Id. at *7.

In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI."  Id. at *15.  In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways.  First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining."  Id. at *23.  Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges.  Id. at *24.  And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest.  Id.

The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).

It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.

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Federal District Court Approves Striped Bass Settlement

As reported by The Sacramento Bee, on April 5, 2011, the United States District Court for the Eastern District of California approved (pdf) a stipulated settlement agreement (pdf), over the objections of intervenors, potentially ending the ongoing dispute over the alleged impacts of striped bass predation on listed salmonids and delta smelt.  (The Sacramento Bee, April 6, 2011, by Matt Weiser)  

In 2008, plaintiffs filed a lawsuit against the California Department of Fish and Game ("Department") alleging that the enforcement of the striped bass sport-fishing regulations was resulting in the "take" of listed salmonids and delta smelt, in violation of section 9 of the federal Endangered Species Act.  Shortly thereafter, various sport fishing interests intervened in the lawsuit.

The settlement agreement obligates the Department to, among other things, collaborate with the National Marine Fisheries Service and U.S. Fish and Wildlife Service in the development of a regulatory proposal to modify the striped bass sport-fishing regulations.  The proposal, which must be based upon the best available scientific information, will be submitted to the California Fish and Game Commission along with a Department recommendation justifying the adoption of the proposal.  In addition to the development of a regulatory proposal, the settlement agreement obligates the Department to set aside $1 million to support research projects regarding predation on listed species in the Sacramento-San Joaquin Delta and/or the anadromous waters of the Sacramento and San Joaquin watersheds.

Representatives Cardoza and Costa Introduce Bill to Alter Restrictions on Water Project Operations in the Delta

On March 30, Representatives Cardoza and Costa introduced a bill in the U.S. House of Representatives, H.R. 1251, entitled the More Water for our Valley Act.  The purpose of the bill is to "provide congressional direction for implementation of the Endangered Species Act as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California."  To accomplish this purpose, the bill would modify certain existing restrictions on Central Valley Project and State Water Project operations until March 1, 2015, which were developed by the U.S. Fish and Wildlife Service and National Marine Fisheries Service as reasonable and prudent alternatives that accompanied biological opinions issued by those agencies.  In addition, the bill would authorize further modifications to be made by the Secretary of the Interior upon recommendations of the National Research Council Committee on Sustainable Water and Environmental Management in the California Bay-Delta provided those recommendations would provide a net benefit to listed fish in the Delta and would not reduce water delivery capability.  Furthermore, the bill would require the Secretaries of the Interior and Commerce to implement an action plan to provide further benefits to the listed fish.

Federal District Court Issues Final Judgment in Delta Smelt Litigation

On March 29, 2011, the United States District Court for the Eastern District of California entered a final judgment in the litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. Previously, the Court issued a memorandum decision (pdf) holding that the biological opinion is unlawful and remanding it to the Service for further consideration. Under the judgment (pdf), the Service is required to complete a new delta smelt biological opinion consistent with the Court’s memorandum decision by October 1, 2011, except that the Service does not need to make express written findings regarding the Reasonable and Prudent Alternative (RPA) – if one accompanies the biological opinion – by this deadline. Such written findings, including that the RPA is (1) consistent with the purpose of the underlying action, (2) consistent with the action agency’s authority, and (3) economically and technologically feasible, are required by November 30, 2011. The judgment also requires the United States Bureau of Reclamation to complete its review of the RPA (if any) under the National Environmental Policy Act (NEPA) by December 15, 2011. In addition, the judgment incorporates by reference the terms of the recent interim remedy agreement governing operations of the water projects through June 30, 2011, which we described here