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

In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows.  According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA.  But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing."  In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal.  The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."

Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views."  Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science."  Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."

Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all.  Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.

Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.

While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened.  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).  As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA 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 ESA 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 EPA may assert its authority under the Clean Air Act to regulate GHGs.

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A plan to remove four dams along the Klamath River, which flows from Oregon through California to the Pacific Ocean, has major proponents including the federal government, the States of California and Oregon, and a number of environmental groups.  But in a June 13, 2011 report (pdf), an independent review panel has raised serious questions regarding the likelihood that the dam removal proposal will achieve the principal conservation goal of increasing the population of Chinook salmon (Oncorhynchus tshawytscha) in the Klamath River system.

The panel acknowledged the potential benefits of the plan for Chinook, noting that the "Proposed Action appears to be a major step forward in conserving target fish populations compared with decades of vigorous disagreements, obvious fish passage barriers, and continued ecological degradation."  But the panel went on to express uncertainty regarding the relative benefits of the plan for the species.  It noted that there are many  limiting factors on Chinook salmon in the Klamath River system, and voiced "strong reservations" that the plan will be implemented in a manner that addresses those limiting factors other than the presence of the dams, which include water quality problems, disease, interbreeding with hatchery salmon, and predation.  Furthermore, the panel noted the possibility that there would be conflicts between management options to meet the needs of Chinook salmon and other fish that are presently listed under the Endangered Species Act or that could be listed in the near future.

One news article reporting the release of the report included a grim assessment by one of the panel members: "'I think there's no way in hell they're going to solve' the basin's water-quality problems, said Wim Kimmerer, an environmental research professor at San Francisco State, one of six experts who reviewed the plan. 'It doesn't seem to me like they've thought about the big picture very much.'"  (Los Angeles Times, June 25, 2011, by Bettina Boxall.)  It is unclear what fallout will result from release of the panel report.

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The wildfires in Arizona have raged through forests and burned down homes, but as recently reported by the Washington Post, three packs of endangered Mexican gray wolves (Canis lupus baileyi) appear to have been spared.  (Story by Associated Press, June 23, 2011).  Firefighters have spotted two of the three packs moving around with their pups, and researchers were able to confirm the survival of at least three wolves from the third pack via radio collar data.  It is currently unknown whether pups from the third pack have survived the fires, but a spokesman for the Arizona Game and Fish Department said that they are confident that all of the wolves and their pups are alive.

The story notes that given the extent of the fires, it is unlikely that the Mexican spotted owl (Strix occidentalis lucida) has fared as well.

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The United States District Court for the District of Arizona entered summary judgment (pdf) for the United States Forest Service in a case filed by Defenders of Wildlife and other plaintiffs alleging the Forest Service failed to fulfill its duty to conserve under section 7(a)(1) of the Endangered Species Act (ESA).  The case focused on efforts to conserve the Mexican gray wolf (Canis lupus baileyi) by reintroducing an experimental population of the species into the Blue Range Wolf Recovery Area, which includes portions of east-central Arizona and west-central New Mexico.  Plaintiffs complained that too often wolves reintroduced into the Recovery Area were removed by the Forest Service for preying on livestock, arguing that the Forest Service's livestock permitting program is interfering with Mexican wolf recovery efforts.

Plaintiffs pursued two specific claims against the Forest Service under section 7(a)(1).  First, they argued that the Forest Service violated section 7(a)(1) by failing to develop and implement its own Mexican wolf conservation program.  In response, the Forest Service argued that it fulfilled its obligation under section 7(a)(1) by carrying out a conservation program, namely the Mexican wolf recovery plan (pdf), developed by the Fish and Wildlife Service.  The court interpreted section 7(a)(1) to impose a requirement on the Forest Service to "carry out a substantive conservation program for the Mexican gray wolf."  But the court went on to hold that Plaintiffs' position that the Forest Service must develop its own program and may not implement a program developed by the Fish and Wildlife Service "puts form over substance" and is not supported by the statute or relevant caselaw.

Second, Plaintiffs argued that the Forest Service has not contributed to the conservation of the Mexican wolf and, instead, demonstrated a preference for wolf removal to protect domestic livestock.  The court opined that, to the extent that the Forest Service took no action to conserve the species, such inaction would plainly violate the section 7(a)(1) duty to conserve.  But, in this case, the court held that the record demonstrates affirmative action to carry out the Fish and Wildlife Service wolf conservation program.

The court's holdings are consistent with the balance of the jurisprudence interpreting section 7(a)(1) of the ESA, which support the proposition that federal agencies "have substantial discretion in determining how best to fulfill their section 7(a)(1) obligations."  As a result, the decision reiterates the difficulty would-be plaintiffs will face if they pursue a claim under section 7(a)(1) of the ESA.

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The National Marine Fisheries Service (NMFS) announced its determination to retain the listing of the Oregon Coast (OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) as threatened under the Endangered Species Act (ESA).  The agency's determination was published (pdf) in the Federal Register on June 20, 2011.  NMFS first proposed listing of the Oregon coast coho salmon in 1995 and first listed (pdf) the species in 1998.  The status of the species has been the subject of considerable controversy and a number of lawsuits.  Most recently, a 2008 determination to list the species was challenged by Douglas County, Oregon and other plaintiffs.  That lawsuit was resolved by a settlement that required NMFS to undertake a status review, which formally ended with the agency's June 17, 2011 announcement that it intended to retain the listing of the species.  Among the issues that led to the controversy over the status of the species, two prominent points of disagreement were the extent to which NMFS should consider hatchery fish and the extent to which NMFS can properly rely on unproven conservation measures when making listing determinations.  One news article on the subject reported NMFS's determination as a "blow to Oregon," which had sought to devise a conservation program in partnership with the federal government in order to avoid a decision to list to species under the ESA (OregonLive.com, June 17, 2011, by Scott Learn).

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The Fish and Wildlife Service (Service) announced (pdf) that it has re-opened the comment period on its August 18, 2009 proposed designation of critical habitat for the Sonoma County Distinct Population Segment of the California tiger salamander (Ambystoma californiense) under the Endangered Species Act.  The Service is reopening the comment period to allow interested parties an opportunity to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit as described in the January 18, 2011 notice (pdf).  In total, the Service is proposing to designate approximately 55,800 acres of land as critical habitat for the species.  The deadline to submit comments is 11:00 pm Eastern Time on July 5, 2011.

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On June 16, 2011, the National Ocean and Atmospheric Administration (NOAA) released a draft of its scientific integrity policy (pdf).  The policy comes in response to President Obama’s March 9, 2009 memorandum directing the Office of Science and Technology Policy (OSTP) to consult with relevant executive departments and agencies to recommend a plan to achieve “the highest level of integrity in all aspects of the executive branch’s involvement with scientific and technological processes.”  Director of OSTP John Holdren issued further guidance on scientific integrity in a December 17, 2010 memorandum.

NOAA’s draft policy is comprehensive, covering both employees and contractors involved with scientific activities.  It provides a “Code of Conduct” that establishes formal guidance for NOAA scientists.  It also includes a training component.  The policy encourages scientists to publish their data and findings and to talk to the media about their research, in an effort to be leaders in the scientific community.

The policy has drawn praise from the Union of Concerned Scientists (UCS).  Director Francesca Grifo cautioned, however, that NOAA will need the support of its parent agency, the Department of Commerce, to implement the policy.  Though expressing praise for the policy, Grifo had several recommendations for its improvement, including the use of visitor logs to inform the public about who is meeting with agency officials and publicly reporting on the progress of efforts to address alleged scientific misconduct.

In addition to the draft policy, NOAA also released a handbook (pdf) that outlines procedures to respond to allegations of misconduct. Both draft documents are available at www.noaa.gov/scientificintegrity. The policy is open for public comment until August 15, 2011.

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As reported on June 15, 2011 by John Ellis and Mark Grossi of the Fresno Bee, the United States District Court for the Eastern District of California denied a motion for temporary restraining order that sought to order the Department of the Interior to lift pumping restrictions in the Sacramento-San Joaquin Delta.  Judge Wanger ruled that the pumping restrictions were necessary to protect migrating fall-run Chinook salmon, explaining that under the Central Valley Project Improvement Act (CVPIA) the Bureau of Reclamation (BOR) must protect all fish, not just endangered species.  The San-Luis and Delta Mendota Water Authority and Westlands Water District had argued that under the CVPIA, BOR is obligated to export and store as much water as possible when the Delta is in excess water conditions, which they argued it will be until early July due to the high amount of snow and rain California has received.  The water agencies further argued that  fall-run Chinook are not protected under the Endangered Species Act.

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On June 13, 2011, President Obama and Vice President Biden announced the Administration’s Campaign to Cut Waste. As part of that campaign, the Administration is seeking to eliminate a multitude of websites the government now maintains.  Both the President and Vice President singled out a website dedicated to the desert tortoise (Gopherus agassizii) – a species native to the southwest and listed (pdf) as threatened under the Endangered Species Act -- as one example of the type of government waste they intend to eliminate.  The media has reported frustration in response to the Administrations focus; one article on the topic noted that “the talk has irritated some scientists and environmentalists” (The Press Enterprise, June 15, by David Danelski and Ben Goad).

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The House Committee on Natural Resources is set to hold hearings on a bill that will allow for the lethal removal of California sea lions (Zalophus californianus) caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The Endangered Salmon Predation Prevention Act (H.R. 946), introduced in March 2011, would allow the states of Washington and Oregon, and four local tribal organizations, to get year-long leases to lethally remove a limited number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to Representative Doc Hastings (R-Wash.), the Chairman of the Committee on Natural Resources, “[a]s Northwest residents spend hundreds of millions of dollars each year to protect salmon, California sea lions camp out at Bonneville Dam and gorge themselves on endangered fish. . . . With all other methods exhausted, lethal removal of the most aggressive sea lions is often the only option left to deter predation, help protect endangered salmon and recoup more of our region’s substantial investment in salmon recovery.”

The legislation follows a May 2011 agreement reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, the National Marine Fisheries Service (NMFS), and the states Oregon and Washington to temporarily suspend the lethal removal of the sea lions until September 2011. The agreement was due to litigation pending in response to the recent NMFS authorization to resume the lethal removal of the sea lions.

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On June 8, 2011, Senator Inhofe (R-OK) filed an amendment (SA 429 (pdf)) to S. 782, the Economic Development Revitalization Act of 2011, that would amend section 4 of the Endangered Species Act to exempt the lesser prairie-chicken (Tympanuchus pallidicinctus) from protection under the Act.  According to Inhofe, if the U.S. Fish and Wildlife Service were to list the lesser prairie-chicken, it would greatly restrict the development of wind energy in Oklahoma.

Senator Inhofe's proposed amendment comes on the heels of Senator Cornyn's proposed amendment (SA 396 (pdf)) to S. 782 that would exempt the dunes sagebrush lizard (Sceloporus arenicolus) from the Endangered Species Act, as previously discussed here. 

In 1998, the Service issued a 12-Month Finding (pdf) in which it determined that listing the lesser prairie-chicken as threatened is "warranted but precluded" by other higher priority listing actions.  Most recently, in a Candidate Notice of Review (pdf) published on November 10, 2010, the Service announced that it has retained the second-highest Listing Priority Number, LPN 2, for the prairie-chicken because it continues to face significant and imminent threats throughout its range from agricultural activities and wind, oil, and gas development.

As explained in a prior entry, House Republicans Steve Pearce (R-NM) and Mike Conway (R-TX) and the Permian Basin Petroleum Association adamantly oppose listing the dunes sagebrush lizard and the lesser prairie-chicken for fear that doing so would halt oil and gas production and cost jobs in southeastern New Mexico and west Texas.  Opponents to listing these species add that both species are currently protected under voluntary Candidate Conservation Agreements (CCAs) and Candidate Conservation Agreements with Assurances (CCAAs).  However, both amendments would "exempt" these species from the Act, thus nullifying the primary incentive for private landowners and developers to enter into such CCAs or CCAAs with the Service.

Proponents of the listings such a Wild Earth Guardians argue that failure to list these species could result in their extinction, and that attempts to amend the Endangered Species Act to exempt species from its protection undermines the Act and increases the cost to protect and allow for the recovery of endangered species.

At this time, neither amendment has been taken up for a vote.

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On June 7, 2011, the U.S. Fish and Wildlife Service (Service) issued a final rule under section 4 of the federal Endangered Species Act revising the critical habitat designated for the Pecos assiminea (Assiminea pecos), and designating critical habitat for the Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), and Noel's amphipod (Gammarus desperatus).  The designated critical habitat for the four endangered species, which occur primarily in sinkholes, springs, and associated spring runs and wetland habitats, is located in Chaves County, New Mexico, and Pecos and Reeves Counties, Texas.  

Although the shrimp (Noel's amphipod) and three snails were added to the endangered species list in 2005, the Service initially designated only 396.5 acres of critical habitat for the Pecos assiminea; the Service did not designate any critical habitat for the other three species.  In 2009, however, in response to a complaint filed by Forest Guardians (now WildEarth Guardians), the Service agreed to revisit its critical habitat designation.  As a result, the Service designated in its final rule approximately 70.2 acres as critical habitat for the Roswell springsnail and Koster's springsnail, approximately 75.9 acres as critical habitat for the Noel's amphipod, and approximately 494.7 acres as critical habitat for the Pecos assiminea. 

The Service notes in the final rule that, as previously stated in 2005, the primary "threats to the four invertebrates include reducing or eliminating water in suitable or occupied habitat through drought or pumping; introducing pollutants to levels unsuitable for the species from urban areas, agriculture, release of chemicals, and oil and gas operations; fires that reduce or eliminate available habitat; and introducing nonnative species into the invertebrates' inhabited spring systems such that suitable habitat is reduced or eliminated."

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Senator Cornyn (R-Texas) has filed an amendment to S. 782 (pdf), a bill entitled the Economic Development Revitalization Act of 2011, that would block the U.S. Fish and Wildlife Service from listing the dunes sagebrush lizard (Sceloporus arenicolus) as endangered.

The amendment would make good on half of the proposal of House Republicans from West Texas and southeastern New Mexico earlier this Spring (blogged about here) to use legislation to exempt the lizard and the lesser prarie chicken from the Endangered Species Act.

Opponents of the proposed rule (pdf) to list the lizard as endangered claim that there is insufficient scientific information to support the listing, and that the Service failed to accurately estimate the economic impact of the listing decision, claiming it would halt oil and gas production in the Permian Basin, which supplies nearly half the oil produced in Texas.

The Service believes that the science supports the listing, and that oil and gas wells, pads, access roads, and other associated infrastructure have destroyed and fragmented the imperiled shinnery oak and dune habitat that the lizard needs to survive, and poses a significant threat to the
species throughout its range.

The comment period on the proposal to list the dunes sagebrush lizard closed 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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The National Marine Fisheries Service has proposed (pdf) revising the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii.  One article reporting on the proposal states that "[t]he Hawaiian monk seal is facing some of the most severe threats to survival of any federally protected animal."  (The Maui News, June 3, 2011, by Audrey McAvoy.)

The Hawaiian Monk Seal was listed (pdf) as endangered throughout its range under the ESA in 1976.  In 1986, critical habitat for the species was designated at all beach areas, sand splits and inlets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 18.3 meters around Kure Atoll, Midway Islands (except Sand Island), Pearl and Hermes Reef, Lisiankski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island.  In 1988, critical habitat was expanded to include Maro Reef and waters around previously designated areas out to the 36.6 meter isobath. 

Comments on the proposed rule must be received no later than August 31, 2011.

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In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.

Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.

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On June 1, 2011, the U.S. Fish and Wildlife Service provided notice of a proposed revision to the Riverside fairy shrimp's designated critical habitat that would add approximately  2,678 acres, raising the total designated critical habitat to approximately 2,984 acres.  The additional lands proposed to be designated are located in Ventura, Orange, Riverside, and San Diego Counties in California.

The proposed revision is to a 2005 final critical habitat designation that identified 306 acres.  The notice recently issued by the U.S. Fish and Wildlife Service states that the proposed revision incorporates "new information specific to Riverside fairy shrimp genetics across the species' range that was not available when we completed our 2005 final critical habitat designation . . . , and new information on the status and distribution of Riverside fairy shrimp that became available since the 2005 critical habitat designation for this species." 

Comments on the proposed designation must be received or postmarked on or before August 1, 2011.

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