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

Today, on October 31, 2011, the Supreme Court of the United States denied (pdf) review of a constitutional challenge to water delivery regulations regarding the Central Valley Project and California State Water Project intended to protect the threatened delta smelt. The petition for writ of certiorari was filed by the Pacific Legal Foundation on behalf of Stewart & Jasper Orchards, and asserted that application of the Endangered Species Act (ESA) to the delta smelt, a noncommercial fish that is only found in California, is an unconstitutional exercise of congressional power under the commerce clause of the U.S. Constitution. The government opposed (pdf) the petition by asserting, among other things, that the ESA is a comprehensive regulatory statute bearing a substantial relation to interstate commerce.

Some found it unsurprising that the Supreme Court did not take the case because there is no split in the federal courts of appeal on the issue. To date, the Supreme Court has declined to review constitutional challenges to the ESA on six different occasions.

In late March, the U.S. Court of Appeals for the Ninth Circuit held that the water delivery regulations did not violate the commerce clause. The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The petition for writ of certiorari was filed on June 22, 2011.
 

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In response to a petition (pdf) from the Pacific Legal Foundation (PLF) to delist the coastal California gnatcatcher (Polioptila californica californica) under the Endangered Species Act, the U.S. Fish and Wildlife Service made a 90-day finding (pdf) that the petition does not present substantial scientific or commercial information to indicate that delisting the species may be warranted.  PLF argued that the coastal California gnatcatcher is not a valid subspecies and should therefore be delisted.  In response, the Service acknowledged "that the taxonomic classification of the coastal California gnatcatcher has been the subject of considerable scientific debate."

The debate regarding the legitimacy of the coastal California gnatcatcher as a species has been ongoing since the time of listing of the species in 1993.  In part, the debate stems from disagreement about the role of morphology (physical appearance such as feather color or tail length) versus genetics in distinguishing among species and subspecies.

Despite the fact that it acknowledged scientific debate regarding the taxonomic classification of the gnatcatcher, the Service concluded that "[t]he genetic information provided in the petition and assertions of improper statistical analyses have been the focus of several Service and independent scientific reviews and the Service has concluded that the information is insufficient to support reclassification."  (Citations omitted from quotation.)

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A NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted on Monday to recommend that NOAA Fisheries permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead.  Under the Marine Mammal Protection Act (“MMPA”), NOAA is charged with protecting marine mammals such as the California sea lion; but, NOAA is also the lead agency responsible for saving Columbia River salmon and steelhead, which are listed under the Endangered Species Act ("ESA").  Since 2002, California sea lions have been preying on stocks of salmon and steelhead below the Bonneville Dam, where the species congregate as they prepare to move upstream.

NOAA has twice authorized lethal removal of California sea lions in this area.  In 2010, a lawsuit filed by the Humane Society stopped the program briefly (see NMFS Suspends Lethal Removal of Sea Lions in Oregon and Washington).  When the program resumed, the Humane Society filed a second lawsuit, halting the sea lion removal again.

NOAA expects to make a decision by March 2012 on whether to grant a new permit.

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The U.S. Court of Appeals for the Ninth Circuit denied (PDF) an emergency motion (PDF) for an injunction pending appeal to the extent the moving parties sought an injunction prior to the court hearing oral arguments, currently scheduled for November 8, 2011.  At issue in the underlying appeal is the constitutionality of a law (Public Law 112-10 section 1713 (Section 1713)) passed by Congress that directs the Secretary of the Interior to reissue a 2009 final rule which removed Endangered Species Act (ESA) protections for all wolves living in the Northern Rocky Mountain Gray Wold Distinct Population Segment outside of Wyoming (2009 Rule).  Section 1713 directs that this reissuance shall not be subject to judicial review. 

Without the ESA protection, the wolves can be legally hunted, and wolf-hunting season has commenced in both Idaho and Montana. 

As we previously discussed, the 2009 Rule delisted (thereby removing ESA protection) the distinct population segment of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  In August 2010, the United States District Court for the District of Montana set aside the 2009 Rule holding that the ESA does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy.  The Service, Idaho, and Montana appealed.  Pending the outcome of those appeals, in April 2011, Congress passed the law ordering reissuance of the 2009 Rule.  Several environmental groups subsequently sued the Service  alleging that the law violated the constitutional separation of powers by directing the outcome of the appeals without amending the underlying substantive law.  While the district court agreed that Section 1713 is unconstitutional and violates the separation of powers doctrine, it entered summary judgment in favor of the Service because it was bound by precedent that constrained its ability to rule for the environmental groups.  The environmental groups then appealed the district court's decision to the Ninth Circuit. 

While the Ninth Circuit denied the emergency motion for preliminary injunction for an injunctive relief prior to oral argument, the Ninth Circuit will consider the motion for injunction pending outcome of the appeal at oral argument on November 8, 2011.

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On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

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In response to a letter from two local congressmen (PDF), Republicans from the Natural Resources Water and Power Subcommittee have scheduled an oversight hearing to examine the U.S. Fish & Wildlife Service’s recent designation of critical habitat for the Santa Ana sucker (Catostomus santaanae).  As reported on this blog, the Service published a final rule (Dec. 14, 2010) designating critical habitat for the Santa Ana sucker, a small fish species occurring in southern California.  The Final Rule designates nearly 10,000 acres in the Santa Ana and San Gabriel rivers and Big Tujunga creek, spanning San Bernardino, Riverside, Orange, and Los Angeles counties.

The hearing will be held October 18, 2011, 10:00 a.m. PST in the Highland City Hall in San Bernardino County.  Ren Lohoefener, Regional Director of the Service, is scheduled to appear as a witness.

As reported in Environment and Energy Daily (Oct. 17, 2011), Water and Power Subcommittee Chairman Tom McClintock (R-Calif.) stated, "Regulatory excesses are imposing increasingly oppressive costs on operation of local water systems. . . This hearing will examine whether the enormous wealth consumed by these policies has made any significant contribution to enhancing endangered populations -- particularly compared to far more effective and less expensive alternatives."  The field hearing’s title, "Questionable Fish Science and Environmental Lawsuits: Jobs and Water Supplies At Risk in The Inland Empire,"  reflects many Republican House members’ and critics’ objections to the sucker critical habitat.  No Democrats are expected to attend.

In their letter requesting a field hearing, Representatives Ken Calvert (R-Calif.) and Jerry Lewis (R.-Calif.) linked the effects of ESA regulation, implementation, and litigation to the economic downturn:  “California Water Agencies are receiving fractions of their total water allocations and California communities are experiencing record job losses due, in some instances, to water shortages . . .”

The conflict between the protections afforded listed species under the Endangered Species Act on one hand and water supply and economic impacts on the other is not novel.  As widely reported on this blog, the Service has been engaged in protracted litigation over limitations placed on the State Water Project and Central Valley Project to protect the threatened delta smelt.

The Service’s action designating critical habitat for the sucker settled litigation initiated by California Trout and other environmental groups.  On August 23, 2011, Bear Valley Mutual Water Company and several water districts and municipalities lodged a complaint in the United States District Court for the Central District of California challenging the Service's action designating sucker critical habitat within the Santa Ana River watershed in San Bernardino, Riverside, and Orange counties.

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On October 7, 2011, the U.S. Fish and Wildlife Service ("Service") announced that the California state fish, the California golden trout (Oncorhynchus mykiss aguabonita), did not warrant listing under the federal Endangered Species Act because "conservation measures throughout the trout's historic range have done much to protect the species."   

In 2000, Trout Unlimited petitioned the Service to list the California golden trout citing habitat degradation from grazing, hybridization and introgression threats from introduced rainbow trout, predation and competition from brown trout, inadequate regulatory protections, and Whirling disease.  (See California Golden Trout Protection Not Warranted Questions and Answers (pdf).)  Two years later, the Service found (pdf) that the petition presented substantial scientific or commercial information to indicate that listing may be warranted. 

In the recent 12-month finding (pdf) declining listing, the Service noted a number of conservation measures that have taken place since the 2002 determination, including the completion of a revised Conservation Assessment and Strategy for the California Golden Trout (pdf), an agreement between the California Department of Fish and Game and the Forest Service to implement the Conservation Assessment and Strategy, and a number of coordinated activities undertaken pursuant to the agreement intended to benefit the species.  In light of these activities and their impact on the species, the Service determined that the California golden trout does not warrant listing at this time.

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On October 13, 2011, the Subcommittee on Investigations and Oversight to the Committee on Science, Space, and Technology of the U.S. House of Representatives held a hearing on the nexus of science and policy related to the Endangered Species Act (ESA).  According to a press release issued by the House, the purpose of the hearing was to "highlight how science is used in policy decisions that are made under [the ESA]."  The witnesses at the hearing were:

• Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
• The Honorable Craig Manson, General Counsel, Westlands Water District
• Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and Game
• Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
• Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
• Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists

The testimony of the witnesses is available here.  At the hearing, Mr, Frazier who heads the endangered species program at the Fish and Wildlife Service, told lawmakers the Department of the Interior would hire independent experts to evaluate a finding of bad faith made with respect to the conduct of two Department scientists by a federal district court judge in a case involving the Service's 2008 biological opinion regarding the effects of the Central Valley Project and California State Water Project on the threatened delta smelt (Hypomesus transpacificus).  (E&E News, Oct. 13, 2011, by Allison Winter.)  We reported on the court's finding here and here.

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Last week, the Fish & Wildlife Service (Service) announced a 12-month finding (PDF) that the Mohave ground squirrel (Spermophilus mohavensis) does not warrant protection as a threatened or endangered species under the Endangered Species Act (ESA). The Service’s finding was in response to a petition from the Defenders of Wildlife and a private citizen to list the species as endangered.

In April 2010, the Service issued a finding that concluded the petition presented substantial scientific or commercial information indicating that listing the Mohave ground squirrel may be warranted; however, after review of the available scientific and commercial information on the species, the Service has now concluded there are no substantial threats to the Mohave ground squirrel throughout its range. 

The Mohave ground squirrel is found in desert scrub communities and Joshua tree woodlands in the Mojave Desert in portions of Inyo, Kern, Los Angeles, and San Bernardino counties.

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Proposed revisions (pdf) to the draft Santa Clara Valley Habitat Conservation Plan / Natural Community Conservation Plan (HCP/NCCP) were released last month to address the hundreds of comments received regarding the draft plan, which was issued in December 2010. The draft plan and comment letters are available for viewing here.

The Santa Clara Valley HCP/NCCP is intended to identify conservation and mitigation measures to protect species listed under the federal Endangered Species Act (ESA) and the California Endangered Species Act (CESA), while allowing for orderly development and public agency activities. The conservation measures, including land preservation and habitat protection, are intended both to mitigate the environmental impacts of planned development, public infrastructure operations and maintenance activities, and to enhance the long term viability of endangered species. Over 20 listed species will be covered under the plan, including the California tiger salamander, California red-legged frog, western burrowing owl, and Bay checkerspot butterfly. The plan will include approximately 520,000 acres, primarily in the south portion of Santa Clara County, and is expected to have a 50-year permit term.

The plan is being prepared by the cities of Morgan Hill, Gilroy, and San Jose, the County of Santa Clara, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority, in consultation with the United States Fish and Wildlife Service (Service) and the California Department of Fish and Game (DFG). The plan’s overall planning process has cost approximately $5.1 million to date, which has been shared by the plan applicants. The Santa Clara County Board of Supervisors and the City of Morgan Hill voted in late September to continue their participation in the plan. Other plan applicants, including the San Jose City Council, will face similar decisions this month.

Once the plan is approved, resource agencies (including the Service and DFG) will issue permits to local agencies to allow limited impacts to endangered species. Local agencies will then administer the permits by providing third-party take authorization for specific projects, rather than having permits issued by a state and/or federal agency.  The draft plan calls for private developers and public agencies to pay fees of up to $16,600 per acre for land they wish to develop.

Proponents expect the plan to benefit local developers by streamlining the environmental permitting process, as well as ultimately reducing costs. Publicly funded agencies that build roads, bridges, and sewage treatment plants also support the plan because it would save time and money by expediting the often lengthy environmental review process.

Opponents of the plan, including the Santa Clara County Farm Bureau and the Cattlemen’s Association, assert that agricultural and livestock development should not be assessed development fees, and urge the plan applicants to consider alternative fee arrangements. Others are concerned that the fees for larger infill projects, from 2 to 10 acres, remain too high at about $4,000 an acre.

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On September 30, 2011, the United States District Court for the Eastern District of California upheld (pdf) a decision of the National Marine Fisheries Service (NMFS) to approve management measures developed by the Pacific Fisheries Management Council in conjunction with the Council's decision to open the commercial and recreational fishery for Fall-run Chinook salmon in the Central Valley for the 2011 season.  The NMFS decision had been challenged by the San Joaquin River Group Authority, a California joint powers authority made up of member agencies that own or operate major water infrastructure facilities on the San Joaquin, Stanislaus, Tuolumne, and Merced Rivers.  The Los Angeles Times reported on the decision, stating that the federal court "killed an effort by a group of Central Valley irrigation districts to stop commercial salmon fishing off the California and Oregon coasts, rejecting claims that the federal government acted improperly when it reopened the season this year." (Los Angeles Times, Sept. 30, 2011, by Bettina Boxall.)

Plaintiff alleged that the decision by NMFS violated the Administrative Procedure Act, Magnuson-Stevens Fishery Conservation and Management Act, and the National Environmental Policy Act.  As a threshold matter, the court held that Plaintiff failed to demonstrate it had Article III standing under the Constitution to pursue its claims.  The court further held that, assuming, arguendo, Plaintiff had standing, Plaintiff nonetheless is not entitled to summary judgment on the merits of its claims.  Rather, the court held in favor of Federal Defendants.

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