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

Recently, we reported on an unusual bad faith finding made by the United States District Court for the Eastern District of California in 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 (Hypomesus transpacificus).  Thus far, the Department of the Interior has reacted to the bad faith finding by expressing its confidence in agency personnel involved in the matter.  Mike Taugher of the Contra Costa Times reported that Department of the Interior spokesman Adam Fetcher issued the following statement: "We stand by the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science."  He also reported that, in an internal agency communication, the Service's Regional Director Ren Lohoefener has given the relevant Interior personnel his vote of confidence.

Congress does not appear to be satisfied with the Obama Administration's handling of this divisive matter.  In a letter (pdf) to Secretary Salazar, Democratic Congressman Jim Costa characterized the conduct of the Department of the Interior's personnel as "nothing less than outrageous."  Republican Congressman Devon Nunes called for an immediate investigation into Secretary Salazar and other Department of the Interior personnel in response to the court's ruling.  Even prior to the court's bad faith finding, in response to the court's decision to issue an injunction this fall (which we reported on here), Senator Feinstein stated that it is increasingly clear "that key biological opinions done by the Department of the Interior are not based on sound science."

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The United States District Court for the Eastern District of California issued a 279-page memorandum decision (pdf) on cross-motions for summary judgment in consolidated cases involving challenges to the June 4, 2009 biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of continued operation of the Central Valley Project and State Water Project in California on five listed fish species. The court considered dozens of claims advanced by plaintiffs and held for plaintiffs in whole or in part with respect to about half of the claims while holding for defendants with respect to the balance of the claims. In light of the deferential standard of review of final agency actions under the Administrative Procedure Act, the fact that plaintiffs succeeded on so many claims is extraordinary. Furthermore, even where the court held in favor of federal defendants, in some instances the court expressed skepticism about the basis for federal defendants’ position. For example, while the court agreed with federal defendants that in light of the standard of review NMFS did not act unlawfully by failing to apply available life-cycle models, the court nonetheless indicated failure to apply any life cycle model “approaches bad faith.”

We will post a more detailed description of the decision shortly.

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In 1978, the Loggerhead Sea Turtle (Caretta caretta) was listed as threatened under the federal Endangered Species Act.  On September 16, 2011, the National Oceanic and Atmospheric Administration (NOAA) and U.S. Fish and Wildlife Service (Service) issued a Final Rule revising the listing for the Loggerhead Sea Turtle from a single threatened species to nine distinct population segments.  In the Final Rule five distinct population segments were listed as endangered and four were listed as threatened.  Jim Lecky, director of protected species at NOAA Fisheries, stated that the "division of loggerhead sea turtles into nine distinct population segments will help us focus more on the individual threats turtles face in different areas."  This assessment was echoed by Cindy Dohner, the Service's southeast regional director, who stated that "[t]oday's listing of separate distinct population segments will help us better assess, monitor, and address threats, and evaluate conservation successes, on a regional scale."   The Final Rule notes that in the future, the Service and NOAA will propose to designate critical habitat for the two distinct population segments occurring within the United States. 

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On September 16, 2011, in litigation challenging a biological opinion and reasonable and prudent alternative issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt, the United States District Court for the Eastern District of California made a finding of agency bad faith by the U.S. Fish and Wildlife Service.  The finding was incorporated into the court's ruling from the bench on motions to stay filed by federal defendants and intervenor environmental groups after the court issued a decision on August 31, 2011, enjoining implementation of a component of the reasonable and prudent alternative referred to as the Fall X2 Action.  That Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.

We reported on the decision to issue the injunction here.  The court's findings of fact and conclusions of law in support of the injunction can be accessed here (pdf).

The motions for stay were filed at the same time defendants filed notices of their intent to appeal the court's decision to the United States Court of Appeals for the Ninth Circuit.  Plaintiffs the State of California, public water agencies, and agricultural interests, who sought the injunction of the Fall X2 Action, opposed the motion to stay.

With respect to the issue of bad faith, the court made extensive findings including the following statement:

I'm going to be making a finding in this case of agency bad faith. There is simply no justification. There can be no acceptance by a court of the United States of the conduct that has been engaged in in this case by these witnesses. And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.

The court also indicated its intent to lift the injunction until October 16, 2011, on the grounds that during that period plaintiffs would suffer no injury.

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The California Legislature has sent to the Governor legislation authorizing the Department of Fish and Game to permit the incidental take of 36 fully protected species pursuant to a natural community conservation plan approved by the Department. (Senate Bill 618 (Wolk).) The legislation, in effect, gives fully protected species the same level of protection as is provided under the Natural Community Conservation Planning Act (“NCCP Act”) for endangered and threatened species. (Cal. Fish & Game Code § 2835.)  The legislation removes a significant regulatory barrier to the development of regional conservation plans under the NCCP Act.  The NCCP Act, enacted in the 1990s, authorizes the incidental take of species “whose conservation and management” is provided for in a conservation plan approved by the Department of Fish and Game.

Existing state law prohibits the take of any of the 36 identified “fully protected species.”  The fully protected species laws were enacted prior to the California Endangered Species Act and the federal Endangered Species Act and were intended to prohibit hunting, catching, or harvesting of specific species.  The fully protected species laws were interpreted, however, to also prohibit “take” of the species from land development, farming, ranching and other activities – even when the activities had received take permits under the state and federal endangered species laws.

The 36 fully protected species are found in many areas of California and include such species as the salt marsh harvest mouse (Reithrodontomys raviventris), brown pelican (Pelecanus occidentalis), California least tern (Sterna albifrons browni), California clapper rail (Rallus longirostris levipes), peregrine falcon (Falco peregrinus anatum), bighorn sheep (Ovis canadensis), blunt-nosed leopard lizard (Crotaphytus wislizenii silus), and the San Francisco garter snake (Thamnophis sirtalis tetrataenia). Several of the fully protected species are also protected by the federal and state endangered species laws.
 

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The United States District Court for the District of Columbia has approved (pdf) two settlement agreements among environmental groups and the Fish and Wildlife Service to address a backlog of species that are candidates for listing under the Endangered Species Act.  One (pdf) of the agreements was entered into with Wildearth Guardians, and the second (pdf) was entered into with the Center for Biological Diversity.  On the same day that the Court entered the settlements, it issued a decision (pdf) and order denying a motion by a hunting group to intervene in the matter.  We previously reported on the litigation here and here.  As the Los Angeles Times reported, "[t]he court gave the U.S. Fish and Wildlife Service four years to clear the backlog of more than 850 plant and animal species that are awaiting determinations and bogged down in various stages of the process" (Los Angeles Times, Sept. 9, 2011).

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Last week, the Fish and Wildlife Service (Service) announced (PDF) a 12-month finding to list the Franciscan manzanita (Arctostaphylos franciscana) -- a plant previously thought to be extinct in the wild -- as endangered under the Endangered Species Act (ESA).  The plant, native to the San Francisco peninsula, had not been seen in the wild since 1947.  As we previously reported here, in fall 2009, a botanist identified a single specimen in an area adjacent to Doyle Drive in San Francisco.  A conservation plan was quickly designed for the plant, which was then transplanted to the Presidio of San Francisco for protection.

The Service has opened a 60-day comment period seeking data and comments from the public on the proposed listing and whether designation of critical habitat for the Franciscan manzanita is prudent or determinable.  At this time, the Service believes that critical habitat is not determinable due to a lack of knowledge of what physical and biological features are essential to the conservation of the species, or what other areas outside the site that is currently occupied may be essential for the conservation of the species.

The 60-day comment period closes November 7, 2011.  According to the Service, comments may be submitted by accessing the following website: http://www.regulations.gov.  In the Keywords box, enter Docket No. FWS–R8–ES–2010–0049 and follow the instructions for submitting comments. 

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The U.S. Fish and Wildlife Service (Service) recently announced (PDF) the availability of the 2011 Revised Recovery Plan for the Mojave Population of the Desert Tortoise (Gopherus agassizii) (PDF).  The Plan calls for an adaptive management approach, something the Service says is necessary to "accommodate changing management needs" of the species.  In contrast, an earlier earlier recovery plan, finalized in 1994, focused on traditional mitigation measures to achieve recovery of the threatened desert tortoise.

Key elements of the 2011 Recovery Plan include developing, supporting, and building partnerships to facilitate recovery; protecting existing populations and habitat, and instituting of habitat restoration where necessary; augmenting depleted populations in a strategic, experimental manner; monitoring progress toward recovery, including population trend and effectiveness monitoring; conducting applied research and modeling in support of recovery efforts within a strategic framework; and implementing a formal adaptive management program that integrates new information and utilizes conceptual models that link management actions to predicted responses by Mojave desert tortoise populations or their habitat.

The Service characterizes the 2011 Recovery plan as a "living document."  Ren Lohoefener, director of the Service's Pacific Southwest Region, stressed that the "ability to conserve the Mojave population of the desert tortoise and lead to eventual recovery of this threatened species depends on science and innovation."  The 2011 Recovery Plan calls for regional recovery implementation teams that bring together individuals from land management, scientific, conservation, and land use groups to work with the Service to implement, track, and evaluate recovery actions.  According to the Service, "[b]y continuous examination of vulnerability, exposure, sensitivity, and adaptive capacity of the desert tortoise, resource managers will be able to update the Plan as it is being implemented with conservation measures that will help the desert tortoise recover."

The 2011 Recovery Plan's adaptive management approach is highlighted by the Service's current plan to add a chapter focusing on measures related to renewable energy projects, something that environmental groups claim is sorely lacking.  The Service notes that, when the Recovery Plan was being developed, they did not anticipate the extent to which the landscape of the desert ecosystems in the Pacific Southwest might become modified as a result of newfound federal renewable energy priorities.  While the Recovery Plan does discuss renewable energy development in a number of locations (for example, it notes that impacts from large-scale energy development might impact the desert tortoise through habitat fragmentation, isolation of desert tortoise conservation areas, and the subsequent possibility of restricted gene flow between those areas), it does not provide a single, comprehensive strategy for addressing renewable energy.  The Preamble to the 2011 Recovery Plan notes that the new chapter on renewable energy "will act as a blueprint to allow the Service and [its] partners to comprehensively address renewable energy development and its relationship to desert tortoise recovery."

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On August 31, 2011, the U.S. District Court for the Eastern District of California enjoined implementation (pdf) of a water management action (referred to as the “Fall X2 Action”), which the U.S. Fish and Wildlife Service (Service) and Bureau of Reclamation (Reclamation) proposed to take pursuant to a 2008 biological opinion (BiOp) for operation of the California State Water Project and federal Central Valley Project in the Sacramento – San Joaquin River Delta (Delta).  Under the BiOp’s reasonable and prudent alternative, the Fall X2 Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.  The Service and Reclamation took the position that this Action would benefit the delta smelt.  Plaintiffs the State of California, public water agencies, and agricultural interests sought to enjoin the Action, arguing it would provide no benefit for the species but would impose restrictions that would result in the loss of billions of gallons of water.

In its decision prohibiting implementation of the Fall X2 Action as proposed by the Service, the Court found that the estimated cost of the Fall X2 Action to water users would be 670,000 acre feet of water if 2012 is a critically dry or dry year, or 300,000 acre feet if 2012 is a below normal or above normal year.  The Court determined that this water loss would impact long-term water supply reliability for both domestic and agricultural users, and that there would be further impacts to groundwater recharge programs, with resulting direct environmental impacts to groundwater levels, groundwater quality, and energy use.  The Court further reasoned that such water supply reductions would cause economic impacts to farmers and could have socioeconomic impacts on agricultural communities, although the magnitude of any such economic and/or socioeconomic impacts given the “very good” water year in 2011 was unclear.

With respect to the benefit of the Fall X2 Action on the delta smelt, the Court found that the “scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies 'still don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.”

In balancing the hardships, the Court found that the record supported a requirement that the location of X2 in the fall not be allowed to shift east of the confluence of the Sacramento and San Joaquin Rivers.  Specifically, the Court found that positioning the location of X2 at 79 km would significantly reduce the water supply impact (from 300,000 acre feet or more to 90,000 acre feet), and would serve the stated objective of the Service to collect delta smelt population data to determine whether the Action might benefit the species.  The Court balanced the imperiled status of the species, the “equivocal and highly disputed support” for the Fall X2 Action, and the “even weaker and unjustified support” for positioning the location of X2 at the 74 km marker, against the “substantial and damaging water supply impact of doing so,” and determined that positioning the location of X2 at the 79 km marker achieved equity. 

In sum, the Court’s decision provides that the Fall X2 Action may not be implemented at 74 km as proposed by the Service and Reclamation; rather the federal agencies may only require the location of X2 to be held at 79 km this fall.  The underlying case, which the court decided (pdf) in plaintiffs favor, is currently on appeal to the Ninth Circuit.

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