House Natural Resources Committee to Examine Endangered Species Act Reauthorization This Fall

On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law.  Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program.  The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules - unless they were to downlist or delist species.

The ESA has not been updated in 23 years, and Chairman Hastings stressed that "Congress needs to do its job to reauthorize the law."  He stated, "The law is expired, failing to achieve its fundamental goal of species recovery, and has become a tool for expensive debilitating lawsuits."  Moreover, he stressed, that Congress has "a duty to act on the ESA's reauthorization and it needs to be updated in a calm, careful and bipartisan way."

According to Chairman Hastings, "The Interior Appropriations Bill that Chairman Simpson has brought to the House Floor prioritizes funding to ensure that core responsibilities and environmental protections are met."  As applied to the ESA, the bill originally focused on the continued funding of recovery activities while limiting funds for new listings and habitat designations.

Prioritizing funds for recovery activities, while limiting those available for listings, was an attempt to curb the growing number of lawsuits against the Fish and Wildlife Service and the National Marine Fisheries Service.  Chairman Hastings stated, "By striking this provision, the Dicks amendment would reopen the litigation floodgates."

Despite Chairman Hastings' misgivings, passage of the Dicks Amendment is being hailed by some as "a major triumph for the Fish and Wildlife Service and environmentalists."  The Center for Biological Diversity (Center) called the vote a "victory for imperiled species."  Characterizing the original provisions of the appropriations bill related to the ESA as the "extinction rider," the Center's endangered species program director, Noah Greenwald, said that "it would have been a disaster for hundreds of animals and plants across the country that desperately need the help of the Endangered Species Act to survive."

The House is set to vote on the full appropriations bill in the coming days.  If passed, it will move to the Senate.

Article Describes the Use of Surrogate Species in Conservation Planning in the Sacramento-San Joaquin Delta

The journal Conservation Biology recently posted a forthcoming article on their website that I co-authored with Drs. Dennis Murphy and Kenneth Cummins entitled, A Critical Assessment of the Use of Surrogate Species in Conservation Planning in the Sacramento-San Joaquin Delta, California (U.S.A.). The principle purpose of the article is to assess the use of surrogate species in the Sacramento-San Joaquin Delta. Specifically, we examined “the use of surrogate species, in the form of cross-taxon response-indicator species,” that is, “one species from which data are used to guide management planning for another, distinct species.” In the Delta, we explain that “there has been increasing reliance on surrogates in conservation planning for species listed under federal or state endangered species acts, although the agencies applying the surrogate species concept did not first validate that the surrogate and target species respond similarly to relevant environmental conditions.” We note that, during the same period when there was increasing reliance on surrogates in the Delta, “conservation biologists demonstrated that the surrogate concept is generally unsupported by ecological theory and empirical evidence.” Further, we contend that “[r]ecently developed validation procedures may allow for the productive use of surrogates in conservation planning, but, used without validation, the surrogate species concept is not a reliable planning tool.” The article may be purchased from the publisher, here. Or, if you are interested in obtaining a copy, please contact me, here.

NMFS Suspends Lethal Removal of Sea Lions in Oregon and Washington

The National Marine Fisheries Service (“NMFS”) has suspended its letter of authorization (“LOA”) under Section 120 of the Marine Mammal Protection Act (“MMPA”) allowing the States of Oregon and Washington to lethally remove California sea lions caught eating endangered salmon and steelhead in the Columbia River.  NMFS cited pending litigation in Federal court and limited sea lion activity for its decision, and invited the states to renew their request for an LOA in 2012.  NMFS’ decision comes in the wake of an agreement (see earlier post) between wildlife advocates and the two states to temporarily suspend lethal sea lion removal as well as legislation introduced in the House of Representatives that would permit the states to remove sea lions without complying with the MMPA (see prior post regarding H.R. 946).

D.C. Circuit Overturns Designation of Critical Habitat for the San Diego Fairy Shrimp

On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a tire rut on 143 acres of land in 2001 provides substantial evidence that the land was "occupied" by the shrimp in 1997, the year the Service listed the species.  The court determined that that the single 2001 observation alone is not substantial evidence because the Service "has not reasonably explained how that one, isolated observation demonstrates that plaintiffs' property was 'occupied' by the San Diego fairy shrimp in 1997 (the relevant statutory date) . . . ."

The court emphasized that the Service had based its listing decision on one observation of the shrimp at one location on the 143-acre property, and that the Service failed to observe any San Diego fairy shrimp in any of the six follow-up surveys of the property in 2001.  During the litigation, the Service pointed out that an unidentified species of fairy shrimp was observed in 2001 in a pond next to the tire rut, and it also suggested that wherever adult fairy shrimp are observed, one can assume that they left behind buried eggs, that buried eggs can lie dormant for years, and that a property with dormant, buried eggs is, by definition, "occupied" by the fairy shrimp.  However, the court rejected the Service's additional evidence and reasoning, not because it was insubstantial or unpersuasive, but because the Service had not relied on it when it designated the land as critical habitat based on its determination that the shrimp "occupied" the land in 1997.

The court acknowledged that the substantial evidence standard of review under the Administrative Procedure Act is deferential, but "deference is not abdication."  Moreover, while the Service is not required to conduct its own research to augment the "best scientific data available" under the Endangered Species Act, under the Administrative Procedure Act, the best scientific data must be enough to support the Service's designation of critical habitat. 

In the Court of Appeal's judgment, the best scientific data that the Service relied on for its decision to include the 143-acre property in the fairy shrimp's critical habitat simply fell short.

The decision leaves in place the Service's designation of 2,939 acres of land in Orange and San Diego Counties as critical habitat for the fairy shrimp.  And on remand, the Service may re-designate all or part of the 143-acre property as critical habitat.  But unless and until that happens, the owners may develop the land without the fear that they may adversely modify designated critical habitat for the fairy shrimp, an act that would be subject to numerous restrictions and requirements under the Endangered Species Act.

Fish and Wildlife Service Finds Listing Whitebark Pine is "Warranted but Precluded"

The Fish and Wildlife Service (Service) made a "warranted but precluded" finding (PDF) for the whitebark pine (Pinus albicaulis).  This finding means that the Service has determined that the whitebark pine should be listed, but that it will not currently list the species because there are other higher priority species in the queue and there is a lack of funding.  Therefore, the Service has added the whitebark pine to its candidates species list and will develop a proposed rule to list the species as priorities and funding allow. 

As we previously reported, the Natural Resources Defense Council sued the Service in March 2010 to act on a 2008 petition to list the species.  In July 2010, the Service made a 90-day finding that listing the species may be warranted. 

The trees are being harmed by a disease known as white pine blister rust, as well as by beetles and climate change.  The Service found that the primary threat to the species is from the white pine blister rust, which is nearly ubiquitous throughout the range of the species and results in the mortality of a majority of infected individuals, with all age classes of the trees being susceptible.  Warmer climates have facilitated large outbreaks of the mountain pine beetle, which feeds on the whitebark pine.  Climate change and warmer temperatures will also decrease suitable habitat for the species.

The Service assigned the whitebark pine a Listing Priority Number of 2 based on its finding that the species faces threats that are of high magnitude and imminent.  This is the highest priority number that can be provided to a species. 


Fish and Wildlife Service Announces Revised Work Plan to Address Species Listing

On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species.  The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues.  The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.

The Service has been subject to a barrage of litigation regarding the listing of species.  Petitions to list more than 1,000 species have been filed since 2007, and this has created an enormous backlog for species awaiting listing determinations.  Dan Ashe, Director of the Service, stated, "This work plan will allow the Service to more effectively focus our efforts on providing the benefits of the ESA to those imperiled species most in need of protection." 

As we previously reported, the Service and WildEarth had entered into an settlement agreement in May 2011 (May Agreement) under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (PDF) in the Federal Register.  In return, WildEarth agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program.  WildEarth also agreed to limit the amount of petitions it submits each fiscal year for the duration of the May Agreement.  The court stayed its approval of the proposed May Agreement when CBD opposed approval after being left out of the negotiation process.  CBD had filed many of the original lawsuits for species covered by the May Agreement.

The new work plan modifies some of the deadlines imposed by the May Agreement with WildEarth.  It sets deadlines for 40 species, while incorporating the framework set in the May Agreement for how the Service will address decisions related to hundreds of other species.


Settlement Likely to Result in Additional Critical Habitat for Endangered Leatherback Sea Turtles

In a settlement agreement (pdf) filed in federal court on July 5, 2011, the National Marine Fisheries Service (NMFS) agreed to issue a final rule by November 15, 2011, likely revising the critical habitat for the endangered leatherback sea turtle (Dermochelys coriacea) to include waters off the U.S. West coast. 

NMFS initially designated critical habitat for the leatherback in 1979, issuing a final rule (pdf) designating critical habitat only in waters adjacent to Sandy Point Beach, St. Croix, U.S. Virgin Islands.  In 2007, the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network filed a petition (pdf) requesting that NMFS revise the critical habitat designation to include areas off the California and Oregon coasts.  While NMFS determined (pdf) in 2007 that the petition presented substantial scientific information indicating that the petitioned action may be warranted, it did not issue a proposed rule (pdf) to revise the critical habitat designation until January 5, 2010.  Under the proposed rule, NMFS would revise the leatherback's designated critical habitat to include approximately 70,600 square miles of ocean waters.

On April 19, 2011, because NMFS had not issued a final rule revising the leatherback's designated critical habitat, the environmental organizations filed a lawsuit alleging that the failure to issue a final rule was in violation of the federal Endangered Species Act.  On July 5, 2011, the parties filed a settlement agreement obligating NMFS to issue a final rule by November 15, 2011.  While NMFS is not obligated under the settlement agreement to adopt the proposed rule, or any other specific substantive outcome, it is anticipated that the final rule will designate critical habitat off the coasts of California, Oregon, and Washington. 

Fish and Wildlife Service Issues Revised Recovery Plan for Northern Spotted Owl

On June 30, 2011, the Fish and Wildlife Service (Service) issued a revised recovery plan (PDF) for the Northern spotted owl (Strix occidentalis caurina).  Most people are familiar with the spotted owl because of the intense media attention it received during the 1990s when a fight erupted over whether to continue to allow timber harvesting in the forests of the Pacific Northwest, which conservationists argued was causing loss of critical habitat for the species.  The Service first issued a recovery plan for the spotted owl in 2008, and numerous parties challenged that plan in court.  In 2009, the Service filed for a voluntary remand of the 2008 recovery plan and critical habitat designation.  

The Revised Recovery Plan has three main provisions for achieving spotted owl recovery: protecting "high value" habitat, actively managing forests to improve forest health, and reducing competition from barred owls (Strix varia). 

When the spotted owl was first listed in 1990, the main threat to the species was the loss of habitat due to timber harvest and catastrophic fire.  As a result, logging restrictions were implemented.  But since that time, another threat, competition from barred owls, which have moved into the spotted owl's range, has grown significantly.  The Service currently views the threat from barred owls as "extremely pressing" requiring "immediate consideration."  Barred owls are "larger, more aggressive, and more adaptable than spotted owls" and are believed to "displace spotted owls, disrupt their nesting and compete for food."  In addition, there have been observations of barred owls killing spotted owls and mating with the females.  Therefore, one of the main provisions of the Revised Recovery Plan is to manage the barred owl, including experimental removal, using both lethal and non-lethal methods.

The Revised Recovery Plan does not include a mapped habitat conservation network, and the Service is under court-order to issue a proposed critical habitat designated by November 15, 2011 and a final critical habitat designation by November 15, 2012. 

As reported in the New York Times, the spotted owl is "declining by an average of 3 percent per year across its range."  (New York Times, June 30, 2011 by William Yardley.)  While the Revised Recovery Plan proposes to expand protected areas for the spotted owl, scientists are uncertain whether the barred owl can be managed adequately to allow recovery of the spotted owl.  It is expected that the Revised Recovery Plan will also be the subject of future litigation.

Bill Introduced to Limit Recovery of Attorneys' Fees under the Equal Access to Justice Act

Over 38 members of the U.S. House of Representatives have introduced the Government Litigation Savings Act (H.R. 1996) to amend provisions of the Equal Access to Justice Act (“EAJA”) to limit recovery of attorneys’ fees and other expenses in cases brought against federal agencies.

EAJA was passed in 1980 to help individuals, groups or businesses with limited access to financial resources defend themselves against harmful government actions. Under EAJA, plaintiffs who prevail on their claims against the federal government may seek recovery of attorneys’ fees and certain other expenses. See 28 U.S.C. § 2412. The original legislation required annual reports to Congress on the amount and nature of the EAJA payments, but these reporting requirements lapsed in 1995.

Proponents of the legislation contend that, since 1995, special-interest groups, notably environmentalists, have abused the law, and are now the biggest beneficiaries of EAJA payments. According to Rep. Cynthia Lummis (R-WY), one of the bill’s sponsors, ““[t]his common sense legislation would help restore integrity to EAJA and return the program to the original intent of Congress.”

The proposed legislation would impose a $200,000 cap on the amount of fees recoverable in any action, and would increase transparency and reporting requirements. In addition, EAJA currently provides that any “prevailing” party is eligible to recover attorneys’ fees; the proposed legislation would require such prevailing party to have “a direct and personal monetary interest” in the civil action. The current limits on net worth would remain in place, while the cap on legal rates would increase from $125 to $175 per hour.

Groups that meet the EAJA eligibility requirements routinely seek to recover fees under EAJA after successfully challenging governmental actions under the Administrative Procedure Act, 5 U.S.C. 706. While the proposed legislation would limit recovery of such fees, many environmental laws, including the Endangered Species Act, the Clean Water Act and the Clean Air Act, have their own citizen suit and attorneys’ fees provisions that authorize citizens to file certain types of actions against the federal government or regulated parties. For example, under the citizen suit provision of the Endangered Species Act, parties who prevail on claims challenging a federal agency’s performance of its listing or critical habitat duties may recover reasonable attorney and expert witness fees. See 16 U.S.C. § 1540(g). 

The funds used for reimbursement under EAJA come out of each agency’s budget, rather than a central fund. Conversely, funds recovered under the citizen suit provisions of environmental laws are paid from the Judgment Fund. Each year, Congress appropriates money for the Judgment Fund to be used to pay monetary judgments and awards, including attorneys’ fees, against the federal government. See 31 U.S.C. 1304The Government Litigation Savings Act will only affect funds paid from each agency’s budget under EAJA, and will not impact funds paid from the Judgment Fund.

Ashe Confirmed by Senate, Becomes Fish and Wildlife Service Director

On June 30, 2011, the U.S. Senate confirmed Dan Ashe as Director of the U.S. Fish and Wildlife Service.  Ashe has held various positions with the Service over the past 15 years.  His immediate predecessor was Rowan Gould, who served as Acting Director beginning in February 2010 when then-Director Sam Hamilton passed away.  Though the position requires Senate confirmation, it has frequently been filled by career Service employees.  The Department of the Interior announced Ashe's confirmation in a press release, available here.