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

On August 30, 2011, the U.S. Fish and Wildlife Service (Service) announced that it will designate under section 4 of the federal Endangered Species Act approximately 47,383 acres of critical habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense).  The Service had previously re-opened the comment period on its proposed critical habitat designation on June 21, 2011, in order to allow interested parties to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit.  (For a history of the Service's critical habitat designation, please see Lauren Valk's January 21, 2011 and June 23, 2011 posts.)  Although the final designation will include the 4,945 acres proposed on June 21, the total area designated is a reduction of 26,840 acres from the original 2005 proposed rule.  The final rule will be published tomorrow in the Federal Register.

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On August 25, 2011, the United States Court of Appeals for the Ninth Circuit denied (pdf) an emergency motion for an injunction pending appeal to re-instate Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. Environmental groups appealed the case to the Ninth Circuit on August 13, 2011, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010.

In the emergency motion, the environmental groups asserted (pdf), among other things, that the legislation violated the separation-of-powers clause of the United States Constitution because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. The Service asserted (pdf) that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. According to the environmental groups, Idaho plans to start its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.
 

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The Fish and Wildlife Service (“Service”) announced a proposed rule (pdf) this week to revise critical habitat for the federally endangered Coachella Valley milk-vetch (Astragalus lentiginosus var. coachellae).  The proposed rule would designate approximately 25,704 acres of land in Riverside County, California as critical habitat for the plant, which is endemic to the Coachella Valley. The four geographic units proposed as critical habitat include sand transport and deposition areas associated with: San Gorgonio River and Snow Creek, Whitewater River, Mission Creek and Morongo Wash, and the Thousand Palms area.

The proposed rule is the result of a lawsuit filed against the Service by the Center for Biological Diversity challenging the final critical habitat designation for the plant in 2005.  At that time, the Service designated zero acres of critical habitat because it found that all habitat with essential features was located within areas to be conserved and managed by the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP/NCCP") or was within areas conserved within the Coachella Valley Preserve System under the Coachella Valley fringe-toed HCP.

For similar reasons, the Service is again considering excluding from the proposed designation over 18,446 acres of land covered by the MSHCP/NCCP, the City of Desert Hot Springs, and the Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians.  It reasons that "the land managers sufficiently provide conservation for the plant; exclusion will encourage the continuation and strengthening of cooperative partnerships; or areas subject to the implementation of management plans provides equal to or more conservation than the designation of critical habitat would provide.”

Habitat components essential to the plant’s long-term survival include sands from transport channels/corridors and deposition sites.  Unoccupied stream channels within drainage systems provide for water transported sands essential for the conservation of the plant.

Comments and information on the proposed revision can be submitted electronically beginning on August 25, 2011 and must be received by October 24, 2011.

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The Fish and Wildlife Service (Service) announced a 90-day finding (pdf) that delisting the Valley Elderberry Longhorn Beetle (Desmocerus californicus dimorphus) may be warranted.  The Pacific Legal Foundation (PLF) initially petitioned the Service to delist the beetle in September 2010.  In April 2011, PLF filed a lawsuit seeking a court order directing the Service to issue a finding on PLF's petition.  The 90-day finding commences the Service's status review of the species to determine whether delisting is warranted.  The Service is requesting available data on the beetle.  The deadline for submitting comments to the Service is October 18, 2011.  The Service will then issue a 12-month finding as to whether the delisting is warranted or not. 

The beetle is endemic to the Central Valley of the State of California.  Until the beetle is formally delisted, all protections under the Endangered Species Act remain in place.  The address to send comments can be found on the Service's Q and A (pdf) about the 90-day finding. 

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On August 15, 2011, the National Marine Fisheries Service (NMFS) published a Federal Register notice (pdf) announcing the five-year review reports for six species of salmon and steelhead listed under the Endangered Species Act (ESA). NMFS completed reviews for five Pacific salmon species evolutionary significant units (ESUs), and one steelhead distinct population segment (DPS) in California. Specifically, reviews were completed for the Sacramento River winter-run Chinook salmon (pdf), the Central Valley spring-run Chinook (pdf), the Central Valley steelhead (pdf), the Central California Coast coho salmon (pdf), the Southern Oregon/Northern California coho salmon (pdf), and the California Coastal Chinook salmon (pdf).

NMFS completed the reviews pursuant to section 4 of the ESA, which requires federal agencies to conduct reviews of listed species at least once every five years. Based on these reviews, NMFS determines whether a species should be delisted, or reclassified from endangered to threatened (or threatened to endangered).

In the reports, NMFS concluded that each of the species is to retain its current ESA listing classification. NMFS found that, although many salmon and steelhead populations within the ESUs and DPSs have experienced declines in abundance over the last five years, their overall status indicates that their risk of extinction has not changed since 2005. The current listings are as follows:

• Sacramento River winter-run Chinook salmon (Endangered)
• Central Valley spring-run Chinook (Threatened)
• Central Valley steelhead (Threatened)
• Central California Coast coho salmon (Endangered)
• Southern Oregon/Northern California coho salmon (Threatened)
• California Coastal Chinook salmon (Threatened)

According to NMFS, the declines in salmon and steelhead populations are most likely due to poor ocean conditions and drought. Factors that continue to pose a threat to their survival and recovery include a wide range of activities, including overfishing, predation, loss of habitat, hydropower development, hatchery practices, changes in ocean conditions and productivity, drought, and the effects of global climate change.

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Pursuant to a state law (pdf) enacted in 2010, the legislature required the California Natural Resources Agency to convene a cabinet-level committee to develop a strategic vision for the Department of Fish and Game and the Fish and Game Commission, and submit it to the governor and Legislature before July 1, 2012.  The state has established a website that describes the committee, referred to as the executive committee, a citizen commission, and a stakeholder advisory group.  The stakeholder advisory group is holding a series of meetings over the next 10 days to address a variety of topics including sustainable financing, governance and mission, natural resources stewardship and protection, and science.  The meetings are open to the public.

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An edited volume recently released by Resources for the Future Press and Earthscan focuses on federalism and the U.S. Endangered Species Act (ESA).  The editors are Kaush Arha and Buzz Thompson, both of whom are associated with the Woods Institute at Stanford University.  According to these editors, the volume "explores the critical role that states can and should play in protecting the nation's vast wealth of biodiversity."  The volume includes case studies of federalism and the ESA focused on individual species and chapters that address federalism and the ESA at the conceptual level.  I co-authored a chapter with Eileen Sobeck of the U.S. Department of the Interior regarding listing decisions, conservation agreements, and state-federal collaboration.  The volume is available for purchase from the publisher and online retailers.

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On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.

In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs allege that FEMA's administration of the NFIP in participating communities in and upstream of the Sacramento-San Joaquin Delta (Delta) may affect three listed salmonid species and the delta smelt.  According to plaintiffs, FEMA's administration of the NFIP encourages development in and adjacent to the 100-year floodplain -- an area that includes designated critical habitat for listed salmonids, and that provides water quality benefits that may affect the salmon and smelt.  In addition, plaintiffs allege that FEMA has the discretion to modify its ongoing implementation of the NFIP in the Delta communities to benefit the listed species.  Thus, FEMA is required to enter consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services).

Among other things, FEMA argued that it does not retain discretion to modify its implementation of its floodplain mapping under the NFIP, and that issuing Letters of Map Revision based on placement of fill (LOMR-Fs) cannot have any impact on listed species.

The court rejected these arguments, holding that FEMA's own alteration of how it implements the NFIP in the Puget Sound region in Washington State for the benefit of listed salmonids demonstrates FEMA's ongoing discretionary involvement and control, and holding that other evidence in the record shows there is a question of material fact whether issuing LOMR-Fs may affect listed species or their critical habitat in the Delta by encouraging development that alters the regulatory, 100-year floodplain.  Thus, the court denied, in part, FEMA's motion for partial summary judgment.

The court, however, found the reasoning in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) persuasive on the question whether FEMA has the discretion to withhold or condition issuance of flood insurance policies to applicants in participating communities that have already met certain minimum eligibility requirements.  Thus, the court granted FEMA's motion in this limited respect, holding that by statute, FEMA must issue flood insurance to persons in eligible participating communities.

Nevertheless, the court's rejection of FEMA's other legal arguments leaves open the possibility that FEMA will be required to consult with the Services with respect to its implementation of the NFIP in the Delta communities.

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In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).

The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended delisting. That recommendation was not based on the recovery plan criteria but on a reconsideration of the five criteria set out in section 4(a)(1) of the Endangered Species Act (“ESA”) for listing a species. The final delisting rule (pdf) was published in 2008.

Plaintiffs, a group of six environmental organizations and one individual, argued that when FWS establishes recovery criteria for a species in a formally adopted recovery plan then FWS is required to abide by those criteria in any delisting decision until such time as the recovery plan is amended. FWS countered that the ESA says a species can be delisted based on reconsidering the five ESA factors used to list a species and that a recovery plan is only a guidance document.

Rejecting FWS’ argument, the Court first found the ESA requires FWS to “develop and implement” recovery plans.  Thus, if the recovery plan sets out delisting standards, FWS must consider both those standards as well as the five statutory listing standards. The Court next found the FWS delisting rule had ignored two of the recovery plan delisting standards. The Court held that recovery plans can only be amended by notice and comment procedures and FWS had not done so. FWS’ argument that it had complied with the intent of the recovery plan fell on deaf ears.

The Court vacated the delisting rule until the delisting was done in compliance with the delisting factors and the recovery plan. If FWS wants to change the factors in the recovery plan, it must do so using notice and comment procedures.  FWS has reinstated (pdf) the listing rule. 
 

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On August 15, 2011, after a little more then a decade of protection, the Fish and Wildlife Service (Service) announced that the Lake Erie water snake (Nerodia sipedon insularum) was recovered and that it has been removed from the list of threatened and endangered species.  The Service, which listed the Lake Erie water snake as a threatened species in 1999, stated that the recovery was achieved through minimizing and reducing "the threats to the snake by sustaining and protecting summer and hibernation habitats and ensuring the permanent protection of shoreline habitat."  The Lake Erie water snake is just the 23rd species that has been delisted based upon a finding of recovery. 

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The Fish and Wildlife Service announced it is listing the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as endangered on an emergency  basis under the Endangered Species Act.  The agency decision (pdf) appears in the August 10, 2011 Federal Register.  The species "is currently known to occur at only a few small remote islands within the Florida Keys."  This current distribution is dramatically smaller than the historic distribution, according to the Service: "the Miami blue has undergone a substantial reduction in its historical range, with an estimated > 99 percent decline in area occupied."  Along with the emergency listing decision for the Miami blue butterfly, the Service took action to protect three butterfly species that are similar in appearance: the cassius blue butterfly (Leptotes cassius theonus), ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and nickerbean blue butterfly (Cyclargus ammon).  In an article reporting on the Service's decision, one journalist reported that "after reviewing the dire data on the Miami blue, the agency moved up its listing from a 2012 date initially proposed" in a lawsuit settlement.  (Miami Herald, August 9, 2011, by Curtis Morgan.)

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On August 8, 2011, the Center for Biological Diversity (CBD) reported that the U.S. Fish and Wildlife Service (Service) listed five fish species located in Alabama, Arkansas, Kentucky, and Tennessee as endangered under the federal Endangered Species Act.  The five fish species include the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus crypticus), and laural dace (Chrosomus saylori).  All five fish species were previously identified on the Service's candidate list, which identifies species that qualify for listing, but whose final listing action is precluded by higher priority species.  The report by CBD states that the final listing action is a result of the recent settlement agreement between the Service, WildEarth Guardians, and the Center for Biological Diversity.  (For a discussion of the settlement agreement, please see our prior posts on May 11, 2011 and July 14, 2011.) 

The Service's listing determination states that the Service intends to propose critical habitat for the newly listed species within the "next few months."  

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On August 3, 2011, a federal judge upheld (pdf) a congressional budget rider that removed Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. The legislation was included as part of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (pdf) (H.R. 1473) (the Act), which was passed by Congress and signed by the President in April 2011. Section 1713 of the Act directed the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except for in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010. The rider was authored by Rep. Mike Simpson (R-Idaho) and Sen. Jon Tester (D-Mont).

Environmental groups challenged the legislation on the grounds that Congress had violated the separation-of-powers clause of the United States Constitution because it ordered an outcome in ongoing litigation without amending the underlying law and blocked judicial review, effectively negating the role of the judiciary. The Service argued that the rider was properly within the scope of Congress’ authority because it did, in fact, amend the ESA by making gray wolves an exception. The rider, however, does not reference the ESA, and only references the Service’s 2009 rule.

Unsurprisingly, in his decision, U.S. District Judge Donald Molloy upheld the statute.  But he opined that the “way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the [Act] is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.” The judge further argued that the rider “sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”
 

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The United States District Court for the District of Oregon issued a decision (pdf) invalidating the National Marine Fisheries Service's (NMFS) 2008 and 2010 biological opinions for operation of the Federal Columbia River Power System (FCRPS) by the Army Corps of Engineers and Bureau of Reclamation after the parties to the litigation challenging those decisions filed cross-motions for summary judgment. The court held that NMFS improperly made a no jeopardy determination with respect to certain listed salmonids on the basis of unidentified habitat mitigation measures.

The FCRPS is comprised of 14 sets of dams and associated reservoirs, and the biological opinions covered operation of the facilities through 2018.  The 2008 biological opinion included a no jeopardy determination based, in part, on agreements with a number of entities including certain tribes and states. In response to concerns raised by the court, NMFS issued an adaptive management implementation plan in 2009 and then issued a supplemental biological opinion (pdf) in 2010 incorporating that plan. Plaintiffs National Wildlife Federation and the State of Oregon filed lawsuits challenging the 2008 and 2010 biological opinions.

In reviewing the parties' positions, the court noted that NMFS identified specific habitat mitigation measures through 2013 as the basis for its no jeopardy determination, but NMFS did not identify specific and verifiable mitigation plans beyond 2013.  For this reason, the court held that NMFS "improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified."  Slip Op. at 11.  The court acknowledged federal defendants' argument that future habitat mitigation actions are certain to occur because the federal agencies committed to achieving specific, numerical improvements in habitat quality and survival.  Nonetheless, the court stated that the habitat mitigation program is "plagued with uncertainty."  Id. at 13.  The court went on to conclude that "Federal defendants simply cannot substitute their 'commitment' to survival improvement for specific actions they have evaluated and determined will provide the necessary biological response."  Id. at 16.

The court did not reach other claims advanced by plaintiffs including the arguments that NMFS used a flawed jeopardy standard in the biological opinions and failed to use the best available scientific data in measuring the effects of the action and the benefits of their proposed reasonable and prudent alternative on the listed species.

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