Federal District Court Denies Request for Preliminary Relief in Dispute Regarding Management of Sharp Park Golf Course

The United States District Court for the Northern District of California issued an order (pdf) denying a motion for preliminary relief filed by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California. At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA). Plaintiffs sought an injunction that would substantially restrict activities necessary to allow for continued operation of the golf course.

The Sharp Park golf course has been in continuous operation since 1930. For a substantial portion of that period, two listed species -- the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia) and threatened California red-legged frog (Rana draytonii) -- have been present at Sharp Park. Plaintiffs argued that pumping during the rainy season to control water levels in water bodies on site, mowing, and golf cart use are likely to cause take of listed species. They further argued that the standard for granting preliminary relief in an ESA case is whether take is likely to occur. The court rejected this argument, recognizing that preliminary relief is an extraordinary remedy and that plaintiffs must show a likelihood of irreparable harm.

The court determined that plaintiffs failed to meet their burden of establishing irreparable harm. In sum, the court held:

The expansion of the Frog population, coupled with defendants’ careful attention to moving any vulnerable egg masses and their continuing interactions with [the Fish and Wildlife Service] seeking authorization to do so, make this a situation that does not warrant the temporary, immediate, and drastic relief afforded by a preliminary injunction.

Slip Op. at 14.
 

Ninth Circuit Affirms Lower Court Decision for Strike Rule Delisting Grizzly Bears

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species.  The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly.  However, the Ninth Circuit reversed the district court's holding that the Service's determination regarding the adequacy of existing regulatory mechanisms was not reasonable. 

The subject of the appeal was the Service's decision to remove the Yellowstone grizzly from the list of threatened and endangered species.  The Service first listed the grizzly as threatened in the lower 48 states in 1975.  At the time of listing, the Yellowstone area grizzly population was estimated to number between 136 and 312 bears.  The Service developed a grizzly bear recovery plan in 1982 and revised the plan in 1993.  By 2006, the Service determined that the recovery plan's demographic and habitat based recovery criteria were being met, and the total grizzly population in the greater Yellowstone area was estimated at more than 500 bears, which scientists concluded was approaching Yellowstone National Park's carrying capacity.  Pursuant to the recovery plan, the Service developed a Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Strategy), which the Service finalized in March 2007.  The Service published a final rule (pdf) removing Yellowstone grizzly from the threatened species list in March 2007. 

The Greater Yellowstone Coalition challenged the Service's final rule in district court in November 2007.  The district court found that the Service failed to rationally support its conclusions that adequate regulatory mechanisms were in place to protect the grizzly and that declines in whitebark pine did not threaten the grizzly.  The district court vacated and remanded the final rule. 

The Ninth Circuit agreed with the district court and found that the Service failed to articulate a rational connection between the scientific data and its conclusion that changes in whitebark pine production are not likely to impact the Yellowstone grizzly to the point where it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.  The court explained that the data in the final rule actually demonstrated a relationship between whitebark pine seed shortages, increased bear mortality, and decreased female reproductive success.  The increasing shortage of whitebark pine is due to stresses on the trees from mountain pine beetles and white pine blister rust, both of which may be exacerbated by climate change. As we previously reported here, environmental groups sued the Service to act on a petition to list the whitebark pine due to climate change, and the Service subsequently made a warranted but precluded finding for listing the whitebark pine, which we blogged about here

The court rejected the Service's notion that employing adaptive management justified the delisting, explaining that the future possibility of relisting is not a reasonable justification for delisting, and that "for adaptive management of a potential threat to suffice as a basis for a delisting determination, . . . more specific management responses, tied to more specific triggering criteria, are required." 

Finally, the Ninth Circuit agreed with the Service that there are adequate regulatory mechanisms in place to protect a recovered Yellowstone grizzly population.  The court explained that "delisting cannot require the imposition of legal protections commensurate with those provided by the [Endangered Species Act] itself."  Therefore, the court explained, "it is reasonable to conceive of 'adequate' regulatory mechanisms as offering a recovered species something less than the stalwart protections of the ESA, but considerably more than no special protection at all."

The effect of the court's decision is to continue Endangered Species Act protection for the Yellowstone grizzly.

Ninth Circuit Upholds Biological Opinions for Montana Mining Project--Grizzly Bears and Bull Trout Critical Habitat Adequately Addressed

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or jeopardize the continued existence of grizzly bear population in the lower 48 states of the United States. 

FWS determined that construction and operation of the mine would not adversely modify bull trout critical habitat based primarily on the relatively small footprint of project impacts to critical habitat-- less than three stream miles-- as compared to the much larger 135-stream mile critical habitat “core area.” The Court agreed that such “large-scale critical habitat analysis” is appropriate provided localized impacts are not masked or ignored. The BiOp included a complete evaluation of the physical and biological characteristics necessary for the bull trout’s survival and concluded that all essential elements would remain functional throughout the project’s lifetime.  For this and other reasons, the Court affirmed FWS’s no adverse modification conclusion. 

The Court also upheld the BiOp’s no jeopardy conclusion for grizzly bears based on the project’s comprehensive mitigation plan for the affected Cabinet-Yaak population, which was expected to promote grizzly recovery over the long-term.
 

Court Issues Timeline for Polar Bear Assessment

As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (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) (Special Rule) without conducting an environmental assessment.  As we discussed here, the Special Rule 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.

On November 18, 2011, the court remanded (PDF) the Special Rule to the Service for the preparation of an environmental assessment (EA) and new rulemaking determination.  The court set a deadline of April 13, 2012 for the Service complete a draft EA and to submit a notice of availability of the draft EA and proposed special rule to the office of the Federal Register for publication.  The Service has until December 6, 2012 to complete a final EA and final rulemaking determination and to submit a notice to the Federal Register for publication regarding the availability of those documents. 

The Interim Final Special Rule (PDF) is reinstated and effective until the new special rule for the polar bear becomes effective. 

Fish and Wildlfie Service Announces Online Only Format for Endangered Species Bulletin

 

The U.S. Fish and Wildlife Service has announced that its Endangered Species Bulletin will be available exclusively in an online-only format going forward.  The Bulletin will be updated bi-monthly and will include a single in-depth feature articles, additional supporting articles, and other content.  The website for the Bulletin provides access to an archive that includes past editions back to 2000.

Public Comment Period for Proposed Designation of Hawaiian Monk Seal Critical Habitat Extended

The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal 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.  NMFS provided a 90-day comment period, ending August 31, 2011.

NMFS received numerous requests for an extension of the comment period.  The requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation.  In response to those requests, NMFS elected to extend the deadline.  The public will now have until January 6, 2012 to comment on NMFS's proposed designation.

Documents and reference materials related to the proposed rulemaking are available via the NMFS Pacific Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD.

Federal District Court Rejects Challenge by Pesticide Manufacturers to Biological Opinion and Reasonable and Prudent Alternative

The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS).  In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects.  But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.

Plaintiffs claimed that NMFS improperly employed and relied on two models.  NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids.  With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations.  But the court stated that “it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct.”  It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.

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