En Banc Ninth Circuit Holds ESA Consultation Requirement Applies to Renewal of Long-Term Water Contracts

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

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District Court Holds That the Incidental Take Statement Requirement Under Section 7 of the Endangered Species Act Does Not Apply to Listed Plant Species

Last Thursday, a U.S. District Court for the Northern District of California held (pdf) that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species.

In Center for Biological Diversity v. Bureau of Land Management, No. C 03-02509 SI (N.D. Cal. Apr.3, 2014), environmental group plaintiffs challenged a biological opinion issued by the U.S. Fish and Wildlife Service (Service) to the Bureau of Land Management (BLM). BLM had engaged in section 7 consultation with the Service regarding BLM’s management of the Imperial Sand Dunes Recreation Area in southeast California, an area home to rare species that is often frequented by off-road vehicle enthusiasts. Specifically, BLM sought consultation for potential management impacts on Peirson’s milk-vetch (Astragalis magdalenae var. peirsonii), a threatened plant species. After consultation, the Service issued a biological opinion that did not contain an incidental take statement for Peirson’s milk-vetch.

Under section 7 of the ESA, if a biological opinion concludes that a federal action is not likely to jeopardize the continued existence of a listed species but that the action is likely to result in incidental take of that species, the agency issuing the biological opinion must include an incidental take statement covering that species. Usually, the required incidental take statement only covers animal species. In this case, the environmental groups argued that an incidental take statement must be issued for plants as well.

Noting that no court has ever held that section 7 requires an incidental take statement for listed plants, the court disagreed with the environmental groups. The court looked to the structure and legislative history of the ESA to support its conclusion. Specifically, the court noted that section 9 of the ESA only prohibits take of listed fish or wildlife, not plant species; the take provisions in section 10 likewise only apply to animals.

District Court Upholds Controversial Settlement Agreements between U.S. Fish and Wildlife Service and Environmental Groups

This week, the United States District Court for the District of Columbia upheld (pdf) two settlement agreements – one between the U.S. Fish and Wildlife Service (Service) and WildEarth Guardians, and the other between the Service and the Center for Biological Diversity – that collectively require the Service to determine whether to list 251 species under the Endangered Species Act (ESA) in accordance with certain deadlines. See National Association of Home Builders v. U.S. Fish and Wildlife Service, No. 12-2013 (Mar. 31, 2014).  Plaintiffs, who included organizations representing landowners and businesses in areas where the 251 species may occur, argued the settlement agreements violate the procedural requirements of section 4 of the ESA because they prohibit the Service from determining that protection for a species is warranted, but precluded by higher priority listings. Defendants moved to dismiss the case for lack of jurisdiction and failure to state a claim. The court granted defendants’ motion, finding plaintiffs could not demonstrate standing – specifically, injury in fact – because the settlement agreements do not require any specific substantive outcome; the agreements only require the Service to make determinations pursuant to a set schedule. For further information regarding the controversial settlement agreements, please see our posts dated December 10, 2013 and May 11, 2011.

California Court Recognizes Conservation Exception to Fully Protected Species Law

On an issue of first impression, a California court has created a judicial exception to the “take” prohibition in the state’s fully protected species statutes.  On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited “take” of the species.  Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf).  The decision addresses a common conundrum in California:  whether actions to protect a species authorized by the state and federal endangered species acts are nevertheless prohibited by the state’s fully protected species law.  The decision is the latest round in the long-running battle over the development of the Newhall Ranch project in northern Los Angeles County.

As a condition of approval of its project, the landowner agreed to implement various measures to protect the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) – a fish protected by the state and federal endangered species acts and also by the California fully protected species law.  The measures included live trapping and transplanting of the stickleback away from construction areas.  The petitioners argued that the trapping and translocation measures would necessarily result in “take” of the stickleback prohibited by the fully protected species law.

The court read the “take” prohibition in the fully protected species law in conjunction with the definition of “conservation” in the California Endangered Species Act to conclude that the measures to conserve a species, including trapping and transplanting the species, do not constitute “take” prohibited by the fully protected species law. The decision is an important interpretation of the interplay of the two state laws and should provide greater flexibility to project proponents seeking to implement measures designed to conserve a fully protected species.

Ninth Circuit Issues Long-Awaited Delta Smelt Decision

Today, the United States Court of Appeals for the Ninth Circuit issued a decision (pdf) relating to the 2008 biological opinion (BiOp) 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. The long-awaited decision (oral argument was held on September 10, 2012) reversed in part and affirmed in part the district court’s judgment invalidating the BiOp and remanding it to the Service. The opinion is authored by Judge Bybee, with partial concurrence and partial dissent by both Judge Rawlinson and visiting Eighth Circuit Judge Arnold.

While the panel reversed several aspects of the lower court’s decision concerning the merits of the case under the Endangered Species Act, the panel affirmed the district court’s order remanding the BiOp so that the U.S. Bureau of Reclamation can prepare an environmental impact statement pursuant to the National Environmental Policy Act.
 

Oversight of Pesticide Ingredients May Trigger a Duty to Consult under the Endangered Species Act

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293 (pdf), plaintiffs sued the Environmental Protection Agency (EPA), alleging that EPA’s oversight of pesticide ingredients, including trifluralin, triggered a duty to consult with the National Marine Fisheries Service about trifluralin’s possible effects on species listed under the Endangered Species Act (ESA). EPA and defendant intervenors representing the farming industry filed Rule 12(e) motions, requesting more definite statements, and alleging the complaint was so vague and ambiguous that the parties were unable to prepare responses. The United States District Court for the Northern District of California agreed, and held that the amended complaint was too ambiguous as to which affirmative agency actions required EPA to consult about trifluralin before registering it. The court ordered plaintiffs to provide a comprehensive list of every affirmative act that allegedly triggered the duty to consult and the date of each act in an amended complaint.

 

District Court Upholds Biological Opinion for Wind Energy Project in Imperial County, California

On November 20, 2013, the United States District Court for the Southern District of California rejected a challenge by various plaintiffs and upheld the biological opinion and incidental take statement issued by the U.S. Fish and Wildlife Service (Service) for the Ocotillo Wind Energy Facility Project (Project) located in the Sonoran Desert in Imperial County, California.  See The Protect Our Communities Foundation v. Ashe, No. 12-cv-2212 (S.D. Cal. Nov. 20, 2013) (pdf).  The proposed Project, a utility-scale wind power project, would be comprised of 112 wind turbines located on more than 10,000 acres of public land operated by the Bureau of Land Management (BLM).  Because the Project required authorization from the BLM, a federal agency, and overlapped with known usable forage habitat for the endangered Peninsular Bighorn Sheep, a distinct population segment of the desert bighorn sheep (Ovis Canadensis nelson), consultation with the Service was required under Section 7 of the Endangered Species Act.

In 2011, the BLM initiated consultation with the Service and submitted a biological assessment.  Although the Project would potentially reduce suitable forage habitat by approximately 3,962 acres, in 2012 the Service issued a biological opinion concluding that “the proposed action is not likely to jeopardize the continued existence” of the Peninsular Bighorn Sheep.  The Service also issued an incidental take statement authorizing the incidental take of up to five adult ewes and five lambs. 

Plaintiffs challenged the biological opinion in federal court.  As summarized by the district court, the plaintiffs’ challenge was based on the following four arguments:  (1) “the biological opinion is arbitrary and capricious because it improperly downplays the significance of lower elevation, valley-floor habitat,” (2) the biological opinion “is arbitrary and capricious because it ignores evidence that bighorn sheep are poor dispersers,” (3) the biological opinion “is arbitrary and capricious because it improperly downplays the potential for the project to cause stress and associated adverse effects,” and (4) the biological opinion “fails to use the best available scientific evidence.”

Foreshadowing its ultimate holding, the district court began its analysis by explaining that the biological opinion and the conclusions therein are subject to a “highly deferential” standard of review.  The district court then addressed and dismissed each of the plaintiffs’ arguments, finding that the biological opinion “is rationally based on the facts and data from the administrative record,” and the Service “used the best scientific data available.”  For example, the district court found that the biological opinion “presents a rational connection between the facts found and the conclusion that the Project would not affect connectivity among Bighorn sheep habitats.”  Accordingly, the district court upheld the biological opinion and entered judgment in favor of the Service.
 

U.S. District Court Approves Settlement Requiring the U.S. Fish & Wildlife Service to Study the Impact of Pesticides on the California Red-Legged Frog

On November 4, 2013, the U.S. District Court for the Northern District of California approved a settlement agreement between the U.S. Fish & Wildlife Service (Service) and the Center for Biological Diversity (CBD) regarding the impacts of seven pesticides on the California red-legged frog (Rana draytonii), which is listed under the Endangered Species Act. Pursuant to the settlement, the Service is required to consult with the U.S. Environmental Protection Agency regarding whether the use of glyphosate, malathion, simazine, pendimethalin, permethrin, methomyl and myclobutanil will harm the species. The Service must issue a draft biological opinion for two of the chemicals within one year; biological opinions for the five remaining chemicals must be completed within two years.

The settlement agreement is the result of a lawsuit brought by CBD in 2011, which originally sought to require consultation for 64 pesticides. Under the terms of the agreement, CBD may bring suit again over the remaining 57 pesticides after two years have passed.

These types of settlement agreements have recently come under scrutiny. For example, Sen. Chuck Grasseley (R-IA) and Rep. Doug Collins (R-GA) have introduced legislation intended to curtail these so-called “closed-door settlements” with environmental groups. For more details regarding these legislative efforts, please see our posts dated June 4, 2013 and March 29, 2013.
 

Court Enjoins "Salvage Harvest" Project in Area Scorched by the Mill Fire

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage and Hazard Tree Removal Project (Project), authorizing "salvage harvest" activities in areas that overlapped with Northern spotted owl habitat.  According to the Forest Service's statement of purpose, the Project was intended to address, among other things, the hazardous conditions created by the Mill Fire.  In addition to approving the Project, the Forest Service made an "emergency situation determination."  As a result of this determination, the Forest Service was authorized to implement the Project immediately after publication of its notice of decision, and the right to administrative appeal was eliminated.  

On April 26, 2013, a plaintiff environmental group served the Forest Service with a "60-day notice to sue" under the Endangered Species Act (ESA).  Three days later, on April 29, 2013, the plaintiff filed suit in federal court.  The complaint alleged that the Forest Service violated the National Forest Management Act and the National Environmental Policy Act (NEPA).  Although the plaintiff did not allege a separate ESA claim, it did "nest" an ESA claim within the alleged NEPA violation.  Specifically, the plaintiff alleged that, because the Forest Service violated the consultation requirement in the ESA, the Forest Service was required to prepare an Environmental Impact Statement (EIS) for the Project.    

On September 6, 2013, the United States District Court for the Eastern District of California found that the Forest Service had violated NEPA and failed to consult as required under the ESA.  Conservation Congress v. U.S. Forest Service, No. Civ. S-13-0832 (Sept. 6, 2013) (pdf).  The district court enjoined the Forest Service from conducting any "salvage harvest" activities within the Project area.  

With respect to the NEPA claim, the court stated that "if the Forest Service's proposed action threatens to violate federal environmental law - including the Endangered Species Act - an EIS is required."  After noting that consultation is required under the ESA whenever a project may affect a listed species (whether beneficially or negatively), and citing to numerous documents in the record wherein the Forest Service asserted that the Project would beneficially affect the Northern spotted owl, the court concluded that consultation with the U.S. Fish and Wildlife Service (Wildlife Service) was required under the ESA.  

Because consultation was required, the court next analyzed the communications between the Forest Service and Wildlife Service regarding the Project to determine if such consultation occurred.  The Forest Service admitted that it did not "formally consult" with the Wildlife Service, but alleged that it had complied with the ESA's consultation requirement by informally consulting with the Wildlife Service.  As part of its analysis, the court examined whether the Wildlife Service had issued a letter confirming that it concurred with the Forest Service's determination.   

The court found that the Forest Service had failed to informally consult with the Wildlife Service, since instead of requesting informal consultation and a concurrence from the Wildlife Service, the Forest Service merely requested "technical assistance regarding the scientific soundness of its analysis."  Additionally, the court found that the Forest Service had failed to comply with the ESA's consultation requirement because, even if an informal consultation had taken place, "it did not result in the required concurrence of [the Wildlife Service]."  

Accordingly, the court held that the Forest Service violated the ESA, and thereby violated NEPA.  In reaching this conclusion, the court rejected the Forest Service's argument that the ESA challenge was barred because of the plaintiff's failure to comply with the ESA's 60-day notice requirement.  The court explained that in this case, because the Forest Service had issued an emergency situation determination, if the plaintiff complied with the 60-day notice requirement the Project "could be over and done with by the time it could file the ESA claim."  Therefore, under the specifics of this case, the Court found the failure to comply with the 60-day notice requirement was not fatal.  

Court of Appeals Holds Claims Against the U.S. Fish and Wildlife Service for Failure to Comply with the Endangered Species Act are Moot

On August 20, 2013, the U.S. Court of Appeals for the District of Columbia held (pdf) that appellants’ claims against the U.S. Fish and Wildlife Service (Service) for an alleged failure to take certain actions under the Endangered Species Act (ESA) with respect to the straight-horned markhor (Capra falconeri jerdoni) were moot. 

In 1976, the Service classified the markhor as endangered under the ESA. The species’ primary habitat is the Torghar Hills along the Pakistan-Afghanistan border. In response to the reduction of the markhor population, local tribal leaders formed the Society for Torghar Environmental Protection (STEP), and developed the Torghar Conservation Project, which sanctioned a limited number of markhor hunts and used the proceeds to benefit local tribes, thus encouraging community involvement in the species’ recovery.

In 1999, as a result of these efforts, the Service received a petition seeking reclassification of the species from endangered to threatened under the ESA. The Service issued a favorable initial finding, but took no further action regarding a final finding on the petition’s merit. In 2010, the Service received a second petition with the same request.

A group of safari clubs, hunters, international conservationists, and STEP brought suit against the Service regarding the Service’s failure to downlist the markhor and issue a final finding, and for the Service’s alleged unreasonable delay in processing applications to import parts of the species, or “trophies,” into the United States. The district court dismissed the claims as time-barred and petitioners appealed. 

Seven days after the reply brief in the appeal was filed, the Service issued a 12-month finding reclassifying the markhor and proposing to downlist the species. Moreover, during the pendency of the district court proceedings, the Service processed and denied all four applications to import markhor trophies. The Court of Appeals held that the Service’s issuance of the 12-month finding, and the denial of the applications, rendered the claims against the Service moot. 

D.C. District Court Upholds U.S. Fish & Wildlife's Determination that the Tri-State Population of the Marbled Murrelet Warrants Listing Under the Endangered Species Act

In American Forest Resource Council v. Ashe, 1:12-cv-00111 (D.D.C. Sept. 5, 2013), the U.S. District Court for the District of Columbia upheld the U.S. Fish & Wildlife Service’s (Service) determination that the Washington, Oregon, and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus) warrants listing under the Endangered Species Act (ESA) as a “distinct population segment” (DPS).

Under the ESA, three factors should be considered when determining whether a population constitutes a DPS: (1) the discreteness of the population segment in relation to the remainder of its species; (2) the significance of the population segment to its species; and (3) the population segment's conservation status in relation to the ESA's listing standards. Based on these factors, in 2010 the Service determined that the tri-state population of the marbled murrelet warrants listing under the ESA. Plaintiffs challenged the Service’s decision on the grounds that the tri-state population was not significant, as required by factor two, because the Service had not provided evidence that the central California murrelets interbreed with the northern California murrelets within the DPS. Plaintiffs asserted that the two populations must interbreed in order for the tri-state DPS to be considered significant. In a prior proceeding, the court remanded the decision to the Service to determine whether the two populations interbreed.

The Service completed the remand, finding the central and northern populations do interbreed, albeit rarely. Based on the low levels of interbreeding, plaintiffs argued the Service’s decision should be set aside because the tri-state population is not significant. The court rejected this argument, finding the Service’s conclusion rationally based on all relevant factors, including that the central and northern populations within the DPS occasionally interbreed.

The court also granted the Service’s voluntary request for remand regarding its critical habitat designation for the species. The Service requested the remand in order to comply with case law requiring the Service to specify how designated areas meet the ESA’s definition of critical habitat. As we reported here, the court previously rejected the parties’ proposed consent decree regarding the Service’s critical habitat designation for the species.

District Court Holds Claims Under Section 10 of the Endangered Species Act do not Require 60-day Notice of Intent to Sue

On July 22, 2013, the U.S. District Court for the Western District of Washington held (pdf) that plaintiffs’ claims regarding the U.S. Fish and Wildlife Service’s (Service) alleged violation of section 10 of the Endangered Species Act (ESA) were not subject to the 60 day notice of intent to sue (NOI) requirement.

In 1997, the Washington Department of Natural Resources (DNR) adopted a habitat conservation plan to govern logging in the forests of southwest Washington.  The marbled murrelet (Brachyramphus marmoratus) is one of a number of endangered and threatened species covered under the plan.  In 2012, the Service approved a “minor amendment” to the conservation plan. 

 

Plaintiffs brought suit against the Service, alleging that the Service violated section 10 of the ESA and the Administrative Procedure Act (APA) by processing the amendment as “minor” rather than “major.”  Major amendments require public comment and statutory findings.

 

The court held that violations of section 10 of the ESA are properly brought under the APA, not under section 10 – which authorizes suits for substantive violations of the ESA – because section 10 is an “implementing provision,” not a substantive one.  As a result, plaintiffs’ suit was not subject to the 60-day NOI requirement. 

 

 

Ninth Circuit Affirms Lower Court Decision Upholding Commercial Fishing Restrictions in Alaska to Protect Endangered Steller Sea Lions

On July 23, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a lower court decision upholding restrictions on commercial fishing in Alaska to protect the western Distinct Population Segment (DPS) of the Steller sea lion (Eumetopias jubatus), which is listed under the Endangered Species Act (ESA). The measures, imposed in 2010 by the National Marine Fisheries Service (NMFS), restrict the mackerel and cod fisheries in the western Aleutian Islands. NMFS determined such restrictions were necessary to ensure an adequate supply of prey for the western DPS of the species.

The commercial fishing industry and the State of Alaska challenged the restrictions, arguing that NMFS violated the ESA by basing the fishing restrictions on declines in sub-region populations, rather than on the entire population of Steller sea lions. Plaintiffs also argued that NMFS utilized the wrong standard when concluding there was a causal link between continued fishing and the population decline of the species.

Affirming a decision by the U.S. District Court for the District of Alaska, the Ninth Circuit held that NMFS did not violate the ESA when it based the restrictions on declines in sub-regions of the population. The Court further held that “the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population.”

The western DPS of the species was listed as endangered under the ESA in 1997.
 

Court Holds Biological Assessment Reviewable, But Denies Temporary Injunctive Relief

On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").

In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its designated critical habitat.  The biological assessment asserted that the Project would not effect the bull trout because the fish was not present in the surrounding watershed.  In 2012, the U.S. Fish and Wildlife Service ("Wildlife Service") issued a letter of concurrence.  Plaintiffs subsequently filed suit alleging that the Forest Service and Wildlife Service violated the Endangered Species Act and National Environmental Policy Act.  The plaintiffs alleged that the defendants violated the Endangered Species Act because they failed to use the best available science when analyzing the Project's effects on bull trout.  Specifically, the plaintiffs alleged that the defendants ignored reports from 1995 and 2005 concluding that the status of the bull trout in the surrounding watershed was "unknown."

In opposing the motion for preliminary injunction, the defendants first argued that because the plaintiffs were essentially challenging the biological assessment, and a biological assessment generally does not constitute a final agency action subject to review, the Endangered Species Act challenge failed as a matter of law.  The district court rejected this argument, stating that the biological assessment "is subject to review because the [Letter of Concurrence] expressly relied on the [biological assessment] when determining the bull trout did not exist in the . . . watershed and that no formal consultation was necessary."  

Next, setting the stage for its eventual decision, the district court stated that "[a]n agency is not obliged to conduct independent studies to improve upon the best available science or to resolve inconclusive aspects of scientific information," and that "[w]hen there are differing views as the impact of any agency action on a protected species, . . . an agency has the discretion to rely on the reasonable opinion of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" 

Addressing the substance of the plaintiffs' argument, the prior reports concluding that the status of the bull trout in the surrounding watershed was unknown, the court found that the 1995 report was based on the same snorkeling surveys that defendants' relied on, which "failed to find bull trout" in the surrounding watershed.  Accordingly, although defendants relied on snorkeling surveys that were more than 15 years old, the court found that defendants complied with the Endangered Species Act because the surveys represented the best available science, and defendants were not obligated to conduct new surveys or studies.  

The court also found that the defendants properly assessed bull trout habitat to conclude that bull trout did not and cannot exist in the watershed.  Thus, the court held that plaintiffs failed to establish a likelihood of success on the  merits.

District Court Holds U.S. Forest Service Failed to Consult Under Section 7 of the Endangered Species Act

On June 24, 2013, the U.S. District Court for the District of Montana held (pdf) that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to consult on the impacts of a vegetation management project on Canada lynx (Lynx canadensis) in the Helena National Forest.

Plaintiffs argued that the Service violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the impacts of the proposed project on grizzly bears (Ursus arctos horribilis) and Canada lynx. The Service argued that consultation was not required because grizzly bears and Canada lynx are not species that are present in the project area.

Plaintiffs argued that the Service improperly conflated the legal standard for consultation under section 7 with the legal standard for designation of critical habitat under section 4 of the ESA. Specifically, the section 4 “occupancy” standard requires evidence of reproduction or verified sightings of the species, whereas the section 7 “may be present” standard is less rigorous.

The court held for plaintiffs regarding the Canada lynx, finding there was evidence that the lynx may be present in the project area. With respect to grizzly bears, however, the court found that, while the Service may have applied the incorrect standard, this amounted to harmless error because there was no evidence that the species may be present in the project area.

The project is a timber sale planned for 2,891 acres in the Helena National Forest. A mountain pine beetle outbreak killed many trees in the region, and the goal of the project is to create vegetative conditions that resist fire and further insect infestation, reduce hazardous fuels, improve water quality, and provide timber.

Plaintiffs also brought claims under the National Environmental Policy Act and the National Forest Management Act. These claims were unsuccessful.
 

Extra Record Evidence Saves Forest Service From Section 7(d) Violation

Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental take statement authorizing the U.S. Forest Service to permit grazing activities in habitat for the threatened bull trout (Salvelinus confluentus).  In 2012, due to changed circumstances, the Forest Service reinitiated consultation with FWS.  Despite not having completed a new biological assessment, the Forest Service adjusted grazing activities on two pastures.  In support of this adjustment, the Forest Service made a finding under section 7(d) of the Endangered Species Act that the new grazing plan would not jeopardize the continued existence of the bull trout.  Western Watershed Project, an environmental organization, filed suit shortly thereafter, alleging that the Forest Service violated section 7 and section 9 of the Endangered Species Act. 

Section 7 of the Endangered Species Act states that after initiating consultation, a Federal agency "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section."  Section 9 of the Endangered Species Act generally prohibits the unauthorized take of a listed species. 

With respect to the section 7(d) claim, the court found that "the Forest Service did not discuss the potential impact of trailing nearly 3,000 cattle over [the] spawning grounds just days before spawning would begin on August 15th," and that as a result the "required rational connection was not made in the [section] 7(d) determination[.]"  The court, however, considering expert declarations submitted after-the-fact by the Forest Service, found that a rational connection was subsequently made.  Citing the Ninth Circuit's decision in Western Watersheds Project v. Kraayenbrink, 632, F.3d 472 (9th Cir. 2011), the court held that it could rely on the extra-record declarations when ruling on the section 7(d) claim.  

As a result, after finding that the plaintiff failed to demonstrate a likelihood of success on its section 9 claim, the court denied plaintiff's motion for preliminary injunctive relief.         

Plaintiffs Claim Victory in Sharp Park Case Despite Mixed Record of Success

On July 1, 2013, the United States District Court for the Northern District of California issued an order (pdf) granting, in part, Plaintiffs’ motion for attorneys fees in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958. In the order, the court awarded plaintiffs just 25 percent of the fees requested. The court had previously dismissed the case as moot, which we reported here.

Plaintiffs initiated the lawsuit in an effort to require the City to obtain an incidental take permit under section 10 of the Endangered Species Act (ESA) for the operation of Sharp Park golf course. After the court denied Plaintiffs' motion for preliminary injunctive relief and Plaintiffs' subsequent motion for summary judgment, it dismissed the lawsuit as moot due to the fact that the Fish and Wildlife Service issued a biological opinion under section 7 of the ESA.  Plaintiffs both appealed from the order dismissing the action and sought fees and costs based on the contention they achieved their litigation objectives.

The court found an award of attorneys’ fees and costs to be appropriate under the so-called catalyst theory because, in its view, there was a causal relationship between the ultimate outcome and the lawsuit, and as such an award of some fees was required by law. At the same time, the court noted that “plaintiffs did not prevail on a single substantive motion before the court,” and that the “grossly inefficient allocation of resources” by plaintiffs’ counsel “seems unwarranted by this simple ESA action.” The court went on to state that “little seems to have been gained by plaintiffs,” and “plaintiffs do not seem satisfied with the outcome of the suit.” These apparently are among the factors the court took into account when it reduced the fee award by 75 percent in relation to the amount requested by Plaintiffs.

Nossaman serves as outside counsel to the City and County of San Francisco in the matter.

Ninth Circuit Holds Cumulative Effects Analysis Not Necessary For Informal Consultation

 

In a published opinion (pdf) affirming the denial of preliminary injunctive relief, the U.S. Court of Appeals for the Ninth Circuit held that "there is no statutory mandate to consider cumulative effects during informal consultation."  Conservation Congress v. U.S. Forest Serv., No. 12-16452 (June 13, 2012).

In order to address issues in the Shasta-Trinity National Forest, the U.S. Forest Service proposed the Mudflow Vegetation Management Project (Project).  The Project included a variety of activities, including thinning, sanitation, and regeneration.  Because the Project area included designated critical habitat for the threatened Northern Spotted Owl (Strix occidentalis caurina), the Forest Service prepared a biological assessment (BA) analyzing the impacts of the Project on the Owl and its critical habitat.  The BA concluded that the Project "may affect, but is not likely to adversely affect" the Owl or its critical habitat.  Shortly after preparing the BA, per the requirements of section 7 of the Endangered Species Act (ESA), the Forest Service initiated informal consultation with the U.S. Fish and Wildlife Service.  The Fish and Wildlife Service subsequently concurred with the "not likely to adversely affect" determination, thereby ending the consultation process.  

Because of new literature, updated information, and a revision to the Owl's designated critical habitat, the Forest Service and Fish and Wildlife Service informally reconsulted two more times.  Each time the Forest Service concluded that the project was "not likely to adversely affect" the Owl or its critical habitat, and each time the Fish and Wildlife Service concurred in the Forest Service's determination. 

In 2011, the plaintiff filed a complaint in federal court alleging that the Forest Service and Fish and Wildlife Service violated the ESA and National Environmental Policy Act.  With respect to the ESA, the complaint alleged the Forest Service's BA failed to adequately evaluate the potential effects of the Project, and the Fish and Wildlife Service's concurrence with the "not likely to adversely affect" determination was arbitrary or capricious.  After filing the complaint, the plaintiff moved for preliminary injunctive relief in order to enjoin the Forest Service from proceeding with the Project.  The plaintiff argued that the Forest Service was required to perform a "cumulative effects" analysis as part of its informal consultation with the Fish and Wildlife Service, and the Fish and Wildlife Service improperly disregarded evidence demonstrating that the Project would adversely affect the Owl or its critical habitat.  The district court denied injunctive relief, and the plaintiff appealed.

The Ninth Circuit, interpreting section 7 and its implementing regulations, held that the plaintiff could not demonstrate a likelihood of success on the "cumulative effects" argument because "there is simply no statutory mandate to consider cumulative effects during informal consultation."  The Ninth Circuit reasoned that because the Fish and Wildlife Service promulgated regulations requiring the consideration of cumulative effects during the formal consultation process, and a similar regulation had not been promulgated for the informal consultation process, the consideration of cumulative effects during the informal consultation process was not mandatory.  In reaching this conclusion, the Ninth Circuit also distinguished prior Ninth Circuit precedent stating that the evaluation of cumulative effects is a crucial step in the section 7 consultation process, explaining that in those cases the Court was considering challenges to biological opinions issued through the formal consultation process.

The Ninth Circuit also made short work of the plaintiff's evidentiary argument, finding that in light of the totality of the evidence and the deferential standard of review, the defendants "reasonably concluded" that the Project was not likely to adversely affect the Owl or its critical habitat.  Accordingly, the Ninth Circuit affirmed the district court's denial of preliminary injunctive relief.

ESA Lawsuit Filed Challenging Operations At The Trinity River Fish Hatchery

The Trinity River Hatchery, which is operated by the California Department of Fish and Wildlife and funded by the U.S. Bureau of Reclamation, has a production capacity of approximately 40 million salmonid eggs.  Operations at the Hatchery are intended to mitigate for lost salmonid habitat due to the construction and operation of various water projects.  However, a recent lawsuit filed by the Environmental Protection Information Center alleges that instead of mitigating for impacts to endangered and threatened salmon and steelhead, the Hatchery is "taking" the protected species in violation of the Endangered Species Act.  Specifically, the complaint (pdf) alleges that protected salmonids are being collected for use as broodstock without the explicit approval of the National Marine Fisheries Service, and that the released hatchery fish compete with, prey upon, or interbreed with the protected species.  A representative for the plaintiff stated that it filed the lawsuit "to shine a light on failed policies and open up a public process that is focused on the recovery of wild runs of salmon and steelhead."

District Court Awards Fees to ESA Defendant, Ordering Plaintiffs Jointly and Severally Liable

On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys' fees under the Endangered Species Act's fee shifting provision.  See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).

The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of litigation, (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."  The district court first found, relying on a 1983 Supreme Court decision analyzing the Clean Air Act's fee shifting provision, that a fee award is only "appropriate" when the requesting party is also the "prevailing party."  In addition to being a prevailing party, however, the district court also found that for a defendant to be entitled to fees under the Endangered Species Act, one of the following criteria had to be satisfied: (i) the action must have been frivolous, unreasonable, or without foundation; or (ii) plaintiffs must have continued the litigation after it became clear that the action was frivolous, unreasonable, or without foundation.

Because the action was dismissed with prejudice after it was determined that plaintiffs lacked standing, the district court found that the defendant was a prevailing party.  As for the second element, the district court found that because it was "conclusively determined that" the key plaintiff for purposes of standing "was a paid plaintiff, hired by the other plaintiffs and their counsel," the case "was groundless and unreasonable from its inception, and, therefore, that [defendant] should recover the attorneys' fees it incurred when it was forced to defend itself in litigation."

Because of the egregious nature of the facts, the district court also took the remarkable step of ordering plaintiffs jointly and severally liable for the fee award.

Court Dismisses Suit for Failure to Strictly Comply with 60-Day Notice Requirement

In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat.  In dismissing the case, the court held that it lacked subject matter jurisdiction over the matter because plaintiffs’ notice of intent to file the action failed to comply with the ESA’s notice requirements.  Noting that the purpose of the ESA’s 60-day notice requirement is to alert the government of alleged violations so that they may be resolved without litigation, the court held that plaintiffs’ notice failed to fulfill that purpose.  Specifically, the court held that plaintiffs did not sufficiently inform USFS of the specific alleged violations that they later asserted in their complaint.  Plaintiffs’ failure to strictly comply with the notice requirement was an absolute bar to their subsequent action.  The court’s holding emphasizes the importance of strict compliance with the 60-day notice requirement prior to challenging alleged violations of the ESA.

U.S. District Court Dismisses ESA Section 7 Claims Brought Against the EPA

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts constituting agency action for purposes of triggering section 7 consultation for each of the 382 pesticides. The court rejected plaintiff’s argument that the EPA’s ongoing discretionary control and authority over the pesticides constituted agency action. To establish that there was a duty to consult, plaintiffs would need to allege specific facts identifying affirmative actions taken by the EPA with regard to each of the challenged pesticides.

The court also held that plaintiffs failed to allege sufficient facts to establish that they had standing to bring the case. As plaintiffs were required to allege specific facts with regard to each individual pesticide in order to invoke the section 7 consultation requirement, the court held that plaintiffs were likewise required to allege facts to establish standing for each individual pesticide. The court reasoned that standing to challenge one pesticide did not establish standing with regard to another pesticide.

In addition, the court held that plaintiffs did not plead sufficient facts to establish that the district court had subject matter jurisdiction over the claims. To the extent that plaintiffs’ “core objections” were to EPA’s pesticide registrations, the suit was governed by the administrative framework of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), not the citizen suit provision of the ESA. The court opined that whether it had subject matter jurisdiction under FIFRA, or whether the claims fell outside the ambit of FIFRA, must be established by plaintiffs with respect to each particular pesticide challenged.
 

Ninth Circuit Invalidates Consent Decree: Parties Must Go Back to The Drawing Board

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land spanning from San Francisco to the Canadian border.  The plan is intended to protect the long-term ecological health of the forests (including ecologically critical species) while also allowing for sustainable timber production.  In order to assess the impact of logging activities, survey and management standards were adopted as part of the Northwest Forest Plan.

In 2007, federal agencies issued final environmental documents supporting the elimination of the survey and management standards.  Environmental plaintiffs subsequently sued the federal agencies alleging violations of the National Environmental Policy Act, Endangered Species Act, National Forest Management Act, and Federal Land Policy Management Act.  After the district court held that the federal agencies violated the National Environmental Policy Act, the parties began negotiating the terms of a settlement agreement. 

Eventually, all of the parties, except for a single intervenor-defendant, agreed on terms and moved for entry of a consent decree.  Instead of eliminating the survey and management standards, the settlement agreement proposed to modify the standards.  The intervenor-defendant objected to entry of the consent decree on the basis that all modifications to the survey and management standards were statutorily required to go through a public-participation procedure, and entry of the settlement agreement would bypass that process.  The district court, rejected this argument and entered the consent decree.

On appeal, however, the Ninth Circuit found the intervenor-defendant's argument persuasive, and reversed the decision of the district court, holding that the district court abused its discretion when it entered the consent decree. 

Consent decrees are a common means of settling environmental litigation.  They are also, however, a potential means for abuse.  In fact, as noted in recent headlines, some members of Congress have proposed to modify the consent decree process in an effort to avoid the potential for abuse.  (See our blog post "ESA Legislation Proposed to Prohibit Certain Settlements and Awards.")  With all of this bad press, one wonders whether the courts are also starting to distrust consent decrees.  (See our blog post "Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet.")  Only time will tell. 

Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ESA. The Service designated critical habitat for the species in 1996. In 2008, plaintiffs filed a petition with the Service to delist the tri-state population, arguing the DPS was not sufficiently discrete to warrant ESA protection. After completing a status review in June 2009, the Service concluded the tri-state population was a valid DPS because it was “discrete” and “significant.” Accordingly, the Service determined that delisting was not warranted in January 2010. The Service also revised the critical habitat designation for the species in October 2011. Plaintiffs challenged both the Service’s decision not to delist the species and the critical habitat designation.

With respect to critical habitat, plaintiffs and the Service sought a consent decree, pursuant to which the Service would vacate the 2011 critical habitat designation, and issue a revised designation by September 2018. The court declined to approve the consent decree, concluding that complete vacatur of the critical habitat designation was not a fair and equitable resolution of plaintiffs’ claims or in the public interest.

Plaintiffs also challenged the Service’s 2010 decision, arguing the Service’s conclusion that the tri-state population was “significant” was arbitrary and capricious under the Administrative Procedure Act. Plaintiffs argued that central California murrelets should not be included in the tri-state murrelet population because they are genetically distinct from the other murrelets in the DPS. Plaintiffs further argued that, if the central California population was not included in the tri-state population, the DPS would not be considered “significant” under the ESA. It was undisputed that the Service had not determined whether the central California population interbreeds with other tri-state populations, which would have shown whether the central California population was genetically distinct. In holding for plaintiffs, the court found it was improper for the Service to conclude that the tri-state DPS was significant without determining whether central California murrelets interbreed with other murrelets in the DPS.

The court rejected plaintiffs’ other arguments regarding the Service’s decision not to delist the species, including with respect to its determination that the tri-state DPS is “discrete.”

Federal Court Holds Local Law Preempted By ESA Settlement

The Palila (Loxioides bailleui) is a small bird native to Hawaii that was listed as endangered in 1967.  In 1998, the U.S. District Court for the District of Hawaii, pursuant to a stipulation submitted by the parties, issued an order requiring the State of Hawaii to conduct semi-annual  "aerial sightings" for ungulates (e.g., pigs, deer, sheep, goats, cattle) in the Palila's critical habitat area.  Further, if any ungulates are sighted, the order requires the State to "commence aerial shooting" of the ungulates. 

In 2012, the County of Hawaii, who was not a party to the stipulation or the underlying Endangered Species Act (ESA) litigation, enacted an ordinance prohibiting "any person to engage in the eradication of any animal for any reason while being transported by helicopter, airplane, or any other similar means."  Afraid that compliance with the 1998 order would result in a violation of local law, the parties to the underlying ESA litigation filed a motion with the district court seeking both a declaration that the County ordinance was preempted by federal law, and an injunction prohibiting the County from enforcing the ordinance with respect to activities conducted pursuant to the 1998 order.  In opposing the motion, the County not only refused to agree that it would not enforce the ordinance, but also indicated that aerial eradication efforts could potentially be prosecuted under State law. 

The district court held (pdf) that, under the Supremacy Clause to the U.S. Constitution, the County of Hawaii was preempted from prosecuting any violation of the 2012 ordinance or State law if the violation occurred as a result of any action to enforce the specific terms of the 1998 order.  The district court expressly noted that, while the County of Hawaii was not a party to the original ESA litigation, this did not prohibit the court from issuing an injunction in order to protect its prior decision.   

Court Grants Federal Government Additional Year to Issue New Biological Opinions for California Water Projects

On April 9, 2013, the United States District Court for the Eastern District of California ruled (pdf) on a motion (pdf) by the United States and the State of California to extend the period of time to issue new biological opinions regarding the effects of continued operation of the Central Valley Project and State Water Project on a number of fish species listed as threatened or endangered under the federal Endangered Species Act.  The U.S. and California sought a three year extension of the time to issue biological opinions that were previously held to be unlawful.  The court granted a one year extension and left open the potential to seek two additional one year extensions but only in the event that the court is satisfied that the parties are making "substantial progress" toward developing relevant scientific information in a collaborative manner.

The court required the parties to submit a joint status report detailing their effort to implement the so-called Collaborative Science and Adaptive Management Process (or CSAMP) on or before February 15, 2014.  The court explained that at that time it will "entertain a request to extend the remand schedule by an additional year, with the understanding that if substantial progress has been made along the lines outlined by Movants, such an extension will be granted."  But the court went on to caution the parties that further extensions may not be granted: "The opposite is equally true. If substantial progress has not been made, further extensions will be nonexistent."

U.S. District Court Holds U.S. Fish and Wildlife Service's Decision to Delay Revisions to Critical Habitat Is Not Judicially Reviewable

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea turtle (Dermochelys coriacea).  The United States District Court for the District of Columbia ruled that the Service's decision was not judicially reviewable under either the Administrative Procedures Act (APA) or the Endangered Species Act (ESA). Sierra Club v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D. D.C. March 19, 2013) (pdf).

The leatherback sea turtle has been federally protected since 1970. The Service has designated certain areas within California, Oregon, Washington, and the U.S. Virgin Islands as critical habitat for the turtle.

In 2010, the Sierra Club petitioned the Service to include the beaches and nearby waters of the Northeast Ecological Corridor of Puerto Rico (NEC) as part of the turtle’s critical habitat. Under the ESA, an interested person may petition the Service to designate critical habitat for a protected species. The Service must respond within 90 days with a determination of whether the petition presents substantial scientific information indicating that a revision of the critical habitat for that species is warranted. If the petition presents such information, the Service must announce within 12 months its intentions with regard to the requested action.

In its 90-day response to the Sierra Club’s leatherback sea turtle petition, the Service concluded the petition presented substantial scientific information indicating that revision of the critical habitat designation was warranted. In its 12-month determination, however, the Service stated that it intended to delay revision of the critical habitat until a later date. 

The Sierra Club challenged this decision, alleging that it was arbitrary and capricious, and unlawfully delayed agency action.

In granting the Service's motion for summary judgement, the court held that the Service’s 12-month determination is not judicially reviewable. The court reasoned that Congress provided the Service with broad discretion to make critical habitat determinations, and chose not to set any measureable standard to evaluate such determinations. The court concluded that “this type of decision is generally not suitable for judicial review, and neither the [ESA] nor the [APA] provide sufficient guidance for the Court to evaluate the [Service's] determination.” As a result, “[t]he 12-month determination is a decision committed to the agency’s discretion by law, and thus unreviewable” by a court.

Texas Commission on Environmental Quality Held Liable for Whooping Crane Deaths in Violation of ESA

After an unusual eight day bench trial, the United States District Court for the Southern District of Texas held (pdf) State officials in Texas violated the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana).  In holding for plaintiff The Aransas Project, the court found that defendants’ actions, inactions, and refusal to act proximately caused unlawful take of at least 23 whooping cranes during the winter of 2008-09.  The court enjoined the State from granting new water permits affecting the Guadalupe or San Antonio Rivers and required the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the ESA.

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U.S. District Court Denies Motion to Limit ESA Claims to Administrative Record

In Conservation Congress v. U.S. Forest Service, No. CIV. 2:12-02416 (E.D. Cal. Feb. 26, 2013), the United States District Court for the Eastern District of California denied (pdf) a motion brought by the U.S. Forest Service and U.S. Fish and Wildlife Service to limit review of claims brought under the citizen suit provision of the Endangered Species Act (ESA) to the administrative record.  The court denied defendants' motion because it "would be premature to determine at this early stage of the proceedings" whether plaintiffs' claims “should be strictly limited to the administrative record.”

Plaintiffs are challenging defendants' actions relating to three proposed logging projects in the Mendocino National Forest under the ESA and the National Environmental Policy Act. Among other things, plaintiffs are asserting that defendants failed to consult under section 7 of the ESA.  

Defendants brought a motion to limit review of plaintiffs' ESA citizen suit claims to the administrative record.  Specifically, defendants argued that Administrative Procedure Act principles of record review apply to claims brought under the citizen suit provision of the ESA.  Consistent with other recent decisions, the court rejected defendants' argument.     

The court ruled that defendants could later object to the court’s consideration of extra-record materials, but allowed plaintiffs to pursue discovery regarding their ESA citizen suit claims.

 

Ninth Circuit Orders Endangered Species Act Case to be Reheard En Banc

On March 5, 2013, the United States Court of Appeals for the Ninth Circuit ordered Natural Resources Defense Council v. Salazar, 1:05-cv-01207, to be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3.  Environmental groups brought the action against the U.S. Bureau of Reclamation (Reclamation), asserting Reclamation violated section 7 of the Endangered Species Act (ESA) by renewing 41 water supply contracts without consulting with various Central Valley Project (CVP) water users. 

In July 2012, a three-judge panel in the Ninth Circuit upheld Judge Oliver Wanger’s district court decision, finding plaintiffs did not have standing to challenge several of the water supply contracts.  As we reported here, the court concluded that plaintiffs failed to establish a causal connection between the threatened injury (harm to delta smelt) and Reclamation’s action because the water supply contracts contained a shortage provision.  The provision expressly allows Reclamation to take any action necessary to meet its legal obligations, including not delivering water to the CVP water users in order to comply with section 7 of the ESA.  The court held that, without a threatened injury, there is nothing to redress. 

The court also upheld the district court’s determination with respect to other water supply contracts that section 7 of the ESA only applies to discretionary federal actions.  The court reasoned that, under the Reclamation Act of 1902 and State Water Resources Control Board Decision 990, Reclamation must operate the CVP in conformity with California water law, which requires senior appropriative water rights to be satisfied before junior water rights.  Thus, the court held Reclamation’s discretion was limited with regard to these water contracts, and section 7 of the ESA was not triggered. 

 

Federal Circuit Affirms Dismissal of ESA Fifth Amendment Takings Claim

On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed (pdf) the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe."  The claim is unusual because it arose in the context of the federal Endangered Species Act (ESA).

Casitas Municipal Water District (Casitas) has a contract with the federal Bureau of Reclamation and a license with the State of California authorizing it to divert water for the Ventura River Project (Project).  The contract with the Bureau of Reclamation states that Casitas "shall have the perpetual right to use all water that becomes available through the construction and operation of the Project."  The license with the State of California provides that Casitas may divert up to 107,800 acre-feet of water per year from the Ventura River and other tributaries and to put up to 28,500 acre-feet of water per year to beneficial use for the Project.  

After the West Coast steelhead trout (Oncorhynchus mykiss) was listed as an endangered species, and in order to avoid potential liability under section 9 of the ESA , the Bureau of Reclamation consulted with the National Marine Fisheries Service.  The consultation ended when the National Marine Fisheries Service issued a biological opinion for the Project.  To avoid liability under the ESA, the biological opinion provided, among other things, that a fish ladder be constructed and that a flow regime be implemented to increase the amount of water running through the fish ladder during the steelhead migration period.  

In 2005, Casitas filed an action against the United States in the U.S. Court of Federal Claims alleging that it had lost water as a result of the conditions imposed on the operation of the Project, and therefore the United States had taken its property without just compensation.  While the Court of Federal Claims initially dismissed the claim, the Federal Circuit reversed and remanded the matter so that the lower court could analyze the claim under the "physical takings rubric." 

On remand, Casitas asserted at trial that operation of the fish ladder deprived it of 3,942 acre-feet of water on an annual basis.  Casitas did not demonstrate, however, that this foregone water would have otherwise been put to a beneficial use.  Specifically, the Court of Federal Claims found that Casitas failed to demonstrate that its customers (whether actual or potential) received less water as a result of the operating criteria.  Therefore, the Court of Federal Claims held that the takings claim was not ripe, and dismissed the complaint without prejudice. 

On appeal, now for the second time, the Federal Circuit affirmed the decision of the lower court.  On appeal, both Casitas and the United States conceded that the property right involved was limited to "beneficial use."  Casitas, asserted, however, that beneficial use included the mere storage of water or diversion to storage of water.  Relying on California precedent, the Federal Circuit disagreed.  

While the Federal Circuit affirmed the decision of the lower court, this story is not necessarily over.  As held by the lower court and the Federal Circuit, a takings claim will be ripe if the operating criteria impinge on Casitas' right to beneficial use.  The Federal Circuit also explained that because the taking would be analyzed as a physical taking, the statute of limitations with respect to the taking will not begin to accrue until there has been a reduction in Casitas' right to beneficial use.  Therefore, there is still the distinct possibility that a federal court will find that implementation of a biological opinion can result in a compensable taking under the Fifth Amendment.

Court of Appeals Upholds Polar Bear Listing Based on Climate Change Impacts

In a major victory for advocates of regulatory action to address climate change, the Court of Appeals for the District of Columbia Circuit rejected challenges to the listing of the polar bear as a threatened species.  In Re:  Polar Bear Endangered Species Listing and Section 4(d) Rule Litigation (D.C. Cir. No. 11-5219, March 1, 2013).  The court held that the decision to list the polar bear based on predicted reductions in the sea ice habitat of the polar bear as a result of climate change is reasonable and adequately supported by the record.
The polar bear listing is the first and most high profile example of the use of the Endangered Species Act to force the federal government to adopt regulations addressing climate change.  Environmental organizations have sought to list several other species under the ESA based on potential climate change impacts on the species.  The petitioners for the listing of the polar bear have indicated their intention to use the regulatory protections provided by the ESA to challenge fossil fuel development and other activities with material greenhouse gas emissions.
 
Among several other arguments, the State of Alaska and other opponents of the listing argued that the U.S. Fish and Wildlife Service (Service) improperly used determinations by the Intergovernmental Panel on Climate Change (IPCC) in the evaluation of the likelihood of survival of the polar bear.  The court concluded that while the Service relied on the IPCC climate forecasts, the Service did not bind itself to the IPCC determinations to evaluate the survival of the polar bear.

Fourth Circuit Strikes NMFS Biological Opinion Regarding Pesticide Registrations

In a unanimous panel decision, the United States Court of Appeals for the Fourth Circuit held (pdf) that a biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of three pesticides on certain salmonids “was not the product of reasoned decision-making.”  The Fourth Circuit refused to “silently rubber stamp” an agency decision where NMFS failed to provide a satisfactory explanation for key aspects of that decision.  Further, the court refused to allow NMFS to offer post hoc rationalizations for its decision in the form of an expert affidavit and arguments advanced by counsel in the course of the litigation.  In contrast to the lower court decision, which deferred to NMFS and found that it is not the duty of the court to sit in judgment of scientific standards, the Fourth Circuit took a hard look at the agency determination even as it applied a deferential standard of review.

NMFS issued the biological opinion after consulting with the Environmental Protection Agency (EPA) regarding the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  NMFS concluded that the pesticides would jeopardize numerous species and adversely affect their critical habitat.  Having drawn these conclusions, the agency developed a reasonable and prudent alternative to the action proposed by EPA, which included a number of limitations on the use of those pesticides.

Pesticide manufacturers claimed NMFS failed to justify numerous aspects of its analysis, and the court focused on three of these.  First, the pesticide manufacturers argued that, in its analysis regarding the effects of the action on the listed species, NMFS failed to justify the assumption in its population model that salmonids would be exposed to lethal levels of the pesticides continuously for a 96-hour period.  The court noted that the assumption was severely criticized after NMFS released a draft biological opinion, but NMFS failed to respond to such criticism.  NMFS argued that it recognized the model’s limits in light of the assumption and that disclosing those limits justified its action.  The court rejected this argument, holding that the agency failed to articulate a satisfactory explanation for its action; the court reasoned that acknowledging the assumption was flawed necessitated more explanation, not less.

Second, the pesticide manufacturers claimed NMFS relied on outdated monitoring data.  The court stated that, after the draft biological opinion was released, a number of stakeholders directed NMFS to more recent available data.  The court held that NMFS “never adequately explained why it relied on older data despite the existence of new data and the potential drawbacks of using the older data.”  The court went on to explain that when an agency acknowledges that data it relies upon are outdated or inaccurate, it should analyze the new data or explain its choice to limit its analysis to the older data.

Third, the pesticide manufacturers claimed that the imposition of uniform no-spray buffers is unreasonable given that the buffers applied to water courses of varying depth and width.  NMFS argued it was not required to explain why it chose the reasonable and prudent alternative that it settled upon.  The court noted that the absence of an explanation was especially relevant in view of the potential economic consequences of the requirement.  While the court held that NMFS is not required to specify a reasonable and prudent alternative that is the best option for industry, it must address the economic feasibility of the option it selects.

The Fourth Circuit’s decision re-affirms that, although agency decisions are due deference, such deference is not boundless.  Those decisions must be reasoned and the agency cannot ignore deficiencies in its analysis.  The Fourth Circuit’s decision is consistent with the ESA’s requirement that the agency must use the best available data during the consultation process.

District Court Upholds Federal Grant of Right-of-Way to Private Wind Energy Developer

In Sierra Club v. Kenna, 2013 U.S. Dist. LEXIS 4743, *1 (January 11, 2013), the United States District Court for the Eastern District of California upheld (pdf) the Bureau of Land Management’s (BLM) grant of right-of-way over federal land, providing a wind energy project - located entirely on private land - access to a state road and other essential infrastructure. The plaintiffs challenged BLM’s action on the grounds that BLM failed to consider impacts to bird species listed under the federal Endangered Species Act (ESA) caused by the operation of the wind turbines.

A wind energy developer applied to BLM for a right-of-way over federal land for the purpose of establishing a road to service a proposed wind energy farm and installing underground power transmission lines and fiber optic communications lines. The wind farm, a 12,781-acre facility consisting of up to 102 wind turbines, would be located entirely on private land in Kern County. The wind farm was expected to result in some level of avian fatalities due to the collision with moving turbine blades, among them, the federally listed California condor (Gymnogyps californicus) and southwestern willow flycatcher (Empidonax traillii extimus).

Section 7 of the ESA imposes on all agencies a duty to consult with either the U.S. Fish and Wildlife Service (FWS) (terrestrial and freshwater fish species) or the National Marine Fisheries Service (NMFS) (anadromous fish and marine species) before engaging in any discretionary action that may affect a listed species or critical habitat. Among the actions of an agency that may constitute an "action" within the meaning of the regulation are the granting of licenses, contracts, leases, easements, rights-of-way, and permits.

In this case, BLM did not seek section 7 consultation with FWS for the wind farm’s potential effects on the condor and flycatcher because BLM determined that its scope of review must be confined to the environmental impacts of the activities within the right-of-way. BLM based its decision on the conclusion that the right-of-way approval and the wind farm were not connected because the developer could and would obtain access to the wind farm over private land should BLM deny the right-of-way application.

The court agreed. According to the court, BLM need only show that evidence existed in the administrative record to show that its determination – that the right-of-way facilities were not the "but for" cause of the wind farm – was not arbitrary, capricious, or contrary to law. The court found that facts in the record supported BLM's conclusion that the wind farm could have been completed without the benefit of BLM's grant of right-of-way. Thus, the court held that BLM’s conclusion that the right-of-way approval and the wind farm were not interdependent for purposes of the ESA, was not arbitrary, capricious, or contrary to law. BLM was, therefore, not erroneous in determining that section 7 consultation was not required for the wind farm.

The court also held that BLM’s discretion to influence the developer’s private conduct with regard to the wind farm - by conditioning the grant of right-of-way on developer concessions to benefit the listed bird species - was too tenuous to federalize the wind farm. While BLM may have some level of influence in such a situation, the court noted, the actual discretion belongs to the private party to accept the bargain or not. To explain, the court provided a remarkable analogy between a regulatory agency’s authority to place conditions on a permit and gambling: “In this court's view, agency discretion must refer to something more than the ability to play a good hand of poker.”
 

Washington State District Court Holds Claims Brought Under Citizen Suit Provision of the Endangered Species Act are Not Limited to Record Review

In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held (pdf) that claims arising under the citizen suit provision of the Endangered Species Act (ESA) are not subject to the strictures of the record review doctrine. The court held that, since the ESA citizen suit provision creates an express, adequate remedy at law, and the Administrative Procedure Act (APA) only applies when there is “no other adequate remedy in court,” plaintiffs claims were not governed by the APA, and the court’s review was not limited to the administrative record.

Plaintiffs had filed suit against the Environmental Protection Agency (EPA), asserting that the EPA violated section 7 and section 9 of the ESA by failing to implement the reasonable and prudent alternatives and reasonable and prudent measures set forth in two biological opinions regarding the effects of certain pesticides on species listed under the ESA. Prior to completing the briefing on a pending motion for summary judgment, the parties stipulated that the court would preliminarily resolve a dispute regarding whether plaintiffs’ claims were limited to review of the administrative record.

In holding for plaintiffs, the court relied on Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), and Washington Toxics v. EPA, 413 F.3d 1024 (9th Cir. 2005). In those cases, plaintiffs’ brought claims under the ESA citizen suit provision, challenging a federal agency’s failure to consult under section 7 of the ESA. In both cases, the United States Court of Appeals for the Ninth Circuit held that, because the ESA citizen suit provision independently authorizes a private right of action, the APA does not govern plaintiffs’ claims.

The court ordered the parties to supplement the administrative record with relevant material. The court will consider such materials when it rules on the merits of plaintiffs’ claims in coming months.
 

Court Vacates Critical Habitat Designation for Polar Bear

On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical habitat, and the Service failed to provide an adequate response to comments submitted by the State of Alaska.  With respect to one of the areas designated by the Service, the district court explained that "the Service cannot designate a large swath of land in northern Alaska as 'critical habitat' based entirely on one essential feature that is located in approximately one percent of the entire area set aside." 

Ninth Circuit Upholds Idaho Roadless Rule, Finding U.S. Fish and Wildlife's Reliance on U.S. Forest Service Commitments Reasonable

In Jayne v. Sherman, --- F.3d ---, 2013 U.S. App. Lexis 417, *1 (9th Cir. Jan. 7, 2013), the United States Court of Appeals for the Ninth Circuit upheld (pdf) a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the Idaho Roadless Rule. Plaintiffs argued that FWS violated the Endangered Species Act (ESA) by improperly relying on commitments from the U.S. Forest Service regarding the impact of the rule on listed grizzly bear and caribou. In rejecting plaintiffs’ arguments, the court found that FWS reasonably relied on the Forest Service’s commitments to preserve and protect the habitat of the species.

The Idaho Roadless Rule, adopted in late 2006, governs the use of 9.3 million acres of “inventoried roadless areas” within National Forests in Idaho. The rule creates five categories of land based on the land’s specific attributes, and then applies different management schemes to each category. Under section 7 of the ESA, the Forest Service consulted with FWS regarding the effects of the rule on grizzly bear and caribou. Section 7 of the ESA mandates consultation where an agency action may affect a listed species and prohibits agency action that, either directly or indirectly, is "likely to jeopardize the continued existence" of any endangered or threatened species or "result in the destruction or adverse modification" of its critical habitat. 16 U.S.C. § 1536(a)(2). Indirect effects are defined as "those that are caused by the proposed action and are later in time, but still are reasonably certain to occur." 50 C.F.R. § 402.02. In September 2008, FWS issued a biological opinion finding that the Idaho Roadless Rule was not likely to jeopardize the continued existence of any listed species. Specifically, FWS determined that, since the rule did not directly approve the building of any particular road, it did not have a direct impact on the listed species. But, since the rule made it easier to build roads in some areas in the future, it could have an indirect impact on the species if the road building was “reasonably certain to occur.”

FWS found that the Forest Service’s Long Range Management Plan (LRMP) in the Idaho Panhandle National Forest, as well as future Forest Service commitments to preserve the species’ habitat, offered sufficient protection for the grizzly bear and caribou. Specifically, based on assurances from the Forest Service regarding a proposed amendment to the LRMP that would limit motorized access in the region and a stated intention to maintain and manage the species habitat in accordance with the best available science, FWS concluded that road construction was not reasonably certain to occur, and thus would not adversely effect the listed species.

Plaintiffs challenged FWS’s determination, citing National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008), to argue that it was improper for FWS to rely on promises to protect a listed species. In National Wildlife Federation, the Ninth Circuit held that the National Marine Fisheries Service (NMFS) improperly relied on agency commitments to install structural improvements on the Columbia River to protect listed salmon because the commitments were “general” in nature and not “solid guarantee[s].” The court reasoned that, since the proposed action would cause “immediate negative effects” on the listed species, NMFS could only rely on promises of future action that were “specific and binding.” The Ninth Circuit distinguished National Wildlife Federation on the grounds that, with respect to the Idaho Roadless Rule, there were no “immediate negative effects” on the listed species because road construction was not reasonably certain to occur. As such, there was no compelling reason to require promises to be “binding” or “guaranteed.” The court found that FWS had not acted arbitrarily in relying on the Forest Service’s commitments because there was no evidence casting doubt on such commitments or suggesting that the commitments were based on an implausible rationale. The court upheld FWS’s conclusion that the Idaho Roadless Rule would not jeopardize the grizzly bear or caribou.

The court’s holding stands for the proposition that an agency may rely on non-binding commitments from the federal government in determining that an action will not jeopardize a listed species, so long as the action will not have an “immediate negative effect” on the species. This is a departure from the court’s prior decisions, which required proposed habitat and/or species protections to be “clear, definite commitment[s]” and “solid guarantee[s].” In addition, it is unclear whether the court’s requirement of an “immediate negative effect” would be applied on a sliding scale. That is, it is unclear whether future negative effects could rise to the level of requiring commitments to be “solid,” as is required when immediate negative effects are present.

The court also upheld a final environmental impact statement that the Forest Service prepared pursuant to the National Environmental Policy Act (NEPA), finding that the Forest Service reasonably estimated the Idaho Roadless Rule’s impact on logging and mining by assuming that its lean budget would not allow construction of any permanent roads in the region. Similarly, the court upheld the Forest Service’s NEPA determinations with respect to phosphate mining and logging activities in the Winegar Hole area.
 

D.C. Circuit Rejects Challenge to Controversial ESA Settlement

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural interest in the settlements because they "establish an illegal procedure - the elimination of the Service's statutory authority to find that a proposal to list a species is warranted but precluded by higher priorities."  As for injury, the Safari Club asserted that it had a concrete interest in the litigation because its members hunted three of the candidate species and, so long as the species remained on the candidacy list, its members would be able to continue to hunt the species without fear of violating the Endangered Species Act.  The D.C. Circuit rejected these arguments, finding that there was nothing in the settlement agreements that forced the Service to violate the ESA, and that the Safari Club's interest in delaying the listing of a species to benefit hunting activities was not a protected interest under the ESA.  

As for the alleged procedural injury, the D.C. Circuit found, interpreting the ESA, that there was nothing in the ESA requiring "the Service to find that listing a species is precluded under any specific circumstances."  And, Congress did not authorize judicial review of a warranted finding; "[i]nstead, a person aggrieved by a warranted finding may challenge the Service's final rule listing the species."  In light of these findings, the Court held that the Safari Club could not demonstrate a procedural injury arising from the settlements.

The D.C. Circuit also found that the warranted but precluded process established by the ESA was not intended to promote the take of a candidate species.  Instead, it was intended to be a safety valve for an overburdened agency.  Therefore, because the asserted interest (continued hunting) was contrary to the ESA's statutory purpose (protection of the species), the Safari Club could not establish a concrete injury for purposes of Article III standing.

Accordingly, the D.C. Circuit affirmed the denial of the Safari Club's motion to intervene as a matter of right.  While the Safari Club also moved for permissive intervention, the D.C. Circuit declined to address that issue on appeal, noting that it was an open question as to whether Article III standing is required for permissive intervention.

Earlier this month we reported that the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc. filed a lawsuit in the District of Columbia challenging the ESA settlements.  While the lawsuit raises many of the same arguments recently rejected by the D.C. Circuit, there do appear to be additional arguments pertaining to the procedural process which the D.C. Circuit did not address.  However, because of the substantial overlap, we do anticipate that motion practice will be forthcoming.    

District Court Allows Action for ESA Violations to Proceed regarding Naval Operations off the Atlantic Coast

On December 26, 2012, in Strahan v. Roughead (pdf), the United States District Court for the District of Massachusetts denied a motion brought by federal defendants to dismiss as moot plaintiffs’ claims that the Navy is operating vessels in a manner that takes listed whales in violation of section 9 of the Endangered Species Act (ESA) and failing to consult with the National Marine Fisheries Service (NMFS) regarding the impacts of such operations in violation of section 7 of the ESA. The pro se plaintiff is alleging that the Navy, “through the operation of its vessels and its military training operations,” routinely harms the blue whale (Balaenoptera musculus), the fin whale (Balaenoptera physalus), the humpback whale (Megaptera novaeangliae), and the North Atlantic right whale (Eubalaena glacialis) along the United States Atlantic coast.

The Navy moved the court to dismiss the action as moot, arguing that it consulted with NMFS and obtained incidental take statements that cover the activities challenged by plaintiff in the complaint. In denying the motion, the court held that plaintiff’s complaint “contains factual allegations asserting, in essence, that the Navy is not acting in compliance with the terms of its incidental take statements.” The court noted that while the incidental take statement can shield an action agency or applicant from liability, that is only the case if the action agency or applicant is complying with the terms and conditions of the incidental take statement. The court also held that none of the Navy's incidental take statements authorize takes stemming from ship strikes or vessel traffic, which are alleged to occur in the complaint. The court then noted that such allegations, if proven, would require reinitiation of consultation under section 7 and deprive the Navy of immunity from section 9 liability.

Judge Denies Motion to Amend Order Vacating Designation of Slickspot Peppergrass as Threatened under the Endangered Species Act

On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."  The court based its decision to vacate the listing on the Service's failure to adequately define "foreseeable future" as it applied to the species.  The Final Rule defined "foreseeable future" as "that time period over which events can reasonably be anticipated."  The court found that this definition was too generic, and that the definition of "foreseeable future" must be made on a species-by-species basis and through an analysis of time frames applicable to the particular species at issue.  It remanded the issue to the Service for further consideration.

The Service published its Final Rule listing slickspot peppergrass as threatened on October 8, 2009.  Multiple parties, including Idaho Governor C.L. "Butch" Otter (R), sued the Service contending that: (1) the listing was not based upon the "best available science"; (2) a species may only be listed under the ESA if it is likely to become an endangered species in the foreseeable future, and the Service failed to provide an adequate definition of the "foreseeable future" in its Final Rule; (3) the Final Rule improperly discounted the significance of state conservation efforts; and (4) the Service failed to provide the State of Idaho with a letter outlining the justifications for the listing, which is required under section 4 of the ESA when a state files comments disagreeing with all or part of a proposed regulation.

Slickspot peppergrass is a small, flowering plant in the mustard family.  It is endemic to Idaho, and has never been found outside of the state.  The species is found in "slickspots," which have been described as small circular patches of ground with unusual soil chemistry that create visually distinct openings in the surrounding sagebrush environment.  Scientists believe that the slickspots took thousands of years to form and, once destroyed, cannot be re-created. 

The litigation was the fourth occasion since 2001 that a federal court had been asked to review a decision by the Service concerning whether slickspot peppergrass should be listed as threatened or endangered.

Federal District Court Dismisses Lawsuit Alleging San Francisco Harmed Endangered Species at Sharp Park

In an order issued on December 6, 2012, the United States District Court for the Northern District of California dismissed a lawsuit brought by Wild Equity and other plaintiffs alleging violations of the Endangered Species Act’s take prohibition by the City and County of San Francisco.  The decision, in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958, closes a chapter in the longstanding effort of local environmental groups to shut down the historic Sharp Park golf course, which is located along the Pacific Ocean in the City of Pacifica and owned and operated by the City and County of San Francisco.  Furthermore, it clarifies that an applicant may rely on take authorization provided by a biological opinion before an action agency has issued a permit to the applicant provided the applicant complies to the terms in the biological opinion and associated incidental take statement (ITS) and those terms do not make take authorization contingent upon permit issuance.  Nossaman served as outside counsel to San Francisco in the matter.

In filing the lawsuit, plaintiffs alleged that, by operating the Sharp Park golf course, San Francisco illegally and routinely harmed endangered San Francisco garter snakes and threatened California red-legged frogs.  Among other things, plaintiffs claimed that operation of pumps to manage water bodies at Sharp Park, golf cart use, and routine maintenance operations, such as mowing, resulted in take of the listed species.  After filing the complaint in early 2011, plaintiffs moved for a preliminary injunction later that year that would have effectively shut down the course.  The court denied plaintiffs’ motion and subsequently stayed the lawsuit after San Francisco informed the court that the Army Corps of Engineers was engaged in consultation with the Fish and Wildlife Service with respect to an application from San Francisco for a Clean Water Act section 404 permit.

After the Service issued a biological opinion in October 2012, San Francisco and golfers that had intervened in the action filed a motion to dismiss the case as moot.  Plaintiffs argued that the biological opinion and ITS did not moot the matter because the Corps had not issued the section 404 permit.  They also claimed that the ITS, itself, included language indicating it does not take effect until the Corps acts by issuing a permit.  The court rejected both arguments holding that the statute and caselaw establish that an ITS shields persons from liability provided that they comply with its terms and that the “language in the ITS clearly contemplates that the document is self-effectuating.”  The holding is consistent with the language and structure of the ESA, and its holding that an ITS can be self-effectuating is particularly helpful to applicants faced with a lag between issuance of an ITS by the consulting agency and a permit or other authorization by the action agency.

Court Concludes Balancing is Unnecessary for Critical Habitat Designation, Only Consideration

On November 30, 2012, the United States District Court for the Northern District of California held (pdf) that because the National Marine Fisheries Service had considered the economic impacts of designating certain areas as critical habitat for the threatened green sturgeon (Acipenser medirostris), the Service complied with its obligations under section 4(b) of the Endangered Species Act. 

Section 4(b) of the Endangered Species Act states:

The Secretary shall designate critical habitat, and make revisions thereto, . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.  The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. 

After the Service designated critical habitat for the green sturgeon, the Building Industry Association of the Bay Area and the Bay Planning Coalition filed suit.  Plaintiffs alleged, among other claims, that the Service failed to comply with the requirements of section 4(b) by either (i) failing to consider the economic impacts of designating certain areas as critical habitat, or (ii) failing to balance the economic impacts of the designation against the conservation benefits of the designation.

Plaintiffs argued that the use of "shall" in the first sentence of section 4(b) created a non-discretionary duty to "consider" the economic impacts of designating an area as critical habitat.  Plaintiffs then argued that because of the use of the term "outweigh" in the second sentence of section 4(b), it was Congress' intent that the Service would only designate an area critical habitat if the conservation benefits "outweighed" the economic impacts.       

Based on a plain language interpretation of section 4(b), that court, agreeing with plaintiffs, found that the Service has a non-discretionary duty to "consider" the economic impacts of designating an area critical habitat.  However, after noting that section 4(b) does not specify any particular methodology that must be used to accomplish the "consideration," the court rejected plaintiffs' argument that the Service was obligated to perform a balancing test.  Rather, the court explained, "the second sentence of section 4(b)(2) shows that the entire 'exclusion' process itself is discretionary."  

Turning to the underlying designation, the court then found that an economic analysis prepared by an outside consultant and the Service's section 4(b)(2) report adequately demonstrated that the Service "considered" the economic impacts of the designation.  The court made a point of noting, however, that it made "no determination as to the exact methodology required for such consideration." 

In addition to rejecting plaintiffs' 4(b) challenge, the court found that plaintiffs did not have standing to pursue their third claim, which arose under the National Environmental Policy Act and Administrative  Procedure Act.  Accordingly, the court granted summary judgment in favor of defendants and upheld the critical habitat designation for the green sturgeon.

While the court refused to identify what methodology would satisfy section 4(b), it did state, in dicta, that "the mere presence" of the economic analysis in the record would be enough to establish that the Service satisfied its duty, because in the Ninth Circuit, an agency is entitled to a presumption that it considered all relevant information unless rebutted by evidence in the record.     

Oregon District Court Dismisses Claims Brought To Protect The Marbled Murrelet

The United States District Court for the District of Oregon dismissed claims brought by environmental organizations under section 9 of the Endangered Species Act (“ESA”) to prevent unlawful take of marbled murrelets (brachyramphus marmoratus). Cascadia Wildlands v. Kitzhaber, 2012 U.S. Dist. LEXIS 166966, at *2 (D. Or. Nov. 27, 2012) (pdf). Plaintiffs alleged that defendants, including individual members of the Oregon Board of Forestry and the State Land Board, violated the ESA by (1) authorizing timber sales on specific tracts of forestland, (2) approving forest management plans, implementation plans, and annual operation plans that allow increased logging, which cause unpermitted take of marbled murrelets, and (3) approving “take avoidance” plans that result in unpermitted take of marbled murrelets. Id.  

The court dismissed the claims against members of the Oregon Board of Forestry on the grounds of absolute legislative immunity, meaning that the members were immune from civil suits because their actions were made in their official lawmaking capacity. Id.at 9. Plaintiffs had asserted that defendants had not met their burden of establishing that the board members’ actions were in fact legislative. Id.at 11. In rejecting this assertion, the court held that the board members’ approval of forest management plans constituted legislative activity because the actions involved the formulation of a broad policy, applied to the general public, were legislative in character, and bore the hallmark of traditional legislation. Id.at 12-14 (citing Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003)). 

The court also dismissed claims against individual members of the State Land Board and the Director of the Department of State Lands, holding that plaintiffs had failed to allege facts sufficient to state a claim. Id.at 19-21. Specifically, the court held that the actions of defendants had not proximately caused the alleged harm to the marbled murrelets. Id. 

The court held for plaintiffs with respect to their claims against the State Forester and several District Foresters, finding that plaintiffs had presented facts sufficient to allege that these individuals proximately caused the take of marbled murrelets by approving “take avoidance” plans, specifying timber for sale, and approving forest management plans. Id.at 23. Plaintiffs have 20 days leave to file an amended complaint in accordance with the court’s opinion. Id.at 30. 

Federal Court Upholds Critical Habitat Designation for Santa Ana Sucker

In a decision with important implications for the intersection of water rights and the Endangered Species Act (ESA), the federal district court in Santa Ana, California upheld the designation of critical habitat for the Santa Ana Sucker (catostomus santaanae) in Southern California. (A .pdf copy of the court's decision is available here.) The ruling is the latest in a decade-long fight over critical habitat for the fish that some have dubbed “Southern California’s delta smelt.” Louis Sahagun, Court Upholds Habitat Protection for Santa Ana Sucker, Los Angeles Times (Oct. 24, 2012).

The court rejected a broad challenge to the critical habitat brought by a group of Southern California water districts and municipalities. Among other challenges, the plaintiffs claimed that the Fish and Wildlife Service violated section 2(c)(2) of the ESA that requires the Service to “cooperate” with state and local agencies to “resolve water resource issues in concert with the conservation” of endangered species. The court held that section 2(c)(2) is a “non-operative statement of policy” that does not create any special procedural requirements.

For many years, water rights holders have argued that section 2(c)(2) imposes heightened obligations on the federal wildlife agencies to coordinate with water agencies to resolve conflicts between water rights and endangered species conservation. This decision is the first case to interpret section 2(c)(2). If affirmed on appeal, the decision will effectively eliminate the ability of water agencies to use this section to challenge ESA decisions.

The court rejected other claims that the critical habitat designation conflicted with federal laws governing flood control on the Santa Ana River. The court held that the claim was not ripe because the critical habitat rule did not impose any particular operation of flood control facilities.

The court also held that the Service’s decision not to exclude the Santa Ana River from the critical habitat designation under section 4(b)(2) was not reviewable, because the decision not to exclude area from critical habitat is committed to the Service’s discretion. The court held that while decisions to exclude areas from critical habitat are reviewable, Service decisions not to exclude areas from critical habitat are not reviewable.

Finally, the court rejected claims that the critical habitat designation violated the ESA's "best available science" requirement.

Environmental Groups Win Another Victory in Fight to Protect Pacific Northwest Salmonids from Pesticides

Last week, environmental advocacy groups celebrated a victory in a decade-long fight over the proper balance between agricultural and environmental interests in the Pacific Northwest. On October 1, in Northwest Coalition for Alternatives to Pesticides v. EPA, the federal district court for the Western District of Washington denied the defendant’s effort to dismiss the lawsuit thereby permitting plaintiffs' citizen suit against the Environmental Protection Agency (EPA) under the Endangered Species Act (ESA) to move forward. (A .pdf copy of the court's decision is available here.)

Section 7 of the ESA requires that, prior to authorizing, funding, or carrying out any action, EPA must consult with the National Marine Fishery Service (NMFS) to ensure that the action is not likely to jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). In addition, section 9 of the ESA prohibits take – broadly defined – of listed wildlife. 16 U.S.C. § 1538(a)(1)(B).

In 2002, environmental advocacy groups prevailed in litigation claiming that EPA had failed to consult with NMFS before permitting the use of certain pesticides that allegedly harmed a number of salmonid species. A federal district court agreed and issued an injunction limiting the use of certain pesticides until EPA and NMFS completed consultation regarding such pesticides.  By 2007, the required consultations had not yet been completed.  Following further litigation, NMFS agreed to complete biological opinions (BiOps) assessing the impact of certain pesticides on the listed salmonids. NMFS thereafter issued two BiOps, both concluding that a number of the pesticides that EPA had authorized were in fact jeopardizing the continued existence of a number of listed salmonids, and were likely to destroy or adversely modify the critical habitat of the species.

In the BiOps, NMFS identified reasonable and prudent alternatives (RPAs) and reasonable and prudent measures (RPMs) that EPA must implement to avoid jeopardizing the continued existence the listed species and resulting in the destruction of adverse modification of their critical habitats.  But, by 2010 EPA had not implemented these RPAs or RPMs, or taken any other alternative measures to prevent the use of pesticides from harming the listed salmonids. So environmental groups again sued, alleging violations of sections 7 and 9 of the ESA. In response, pesticide manufacturers asked the court to dismiss the action on the grounds that (i) contrary to plaintiffs’ position, EPA need not comply with the RPAs and RPMs prescribed by NMFS and (ii) that plaintiffs failed to allege actual, physical injury to listed species to support their section 9 claim.

In coming to its decision, the court affirmed that EPA is not bound to follow the RPAs or RPMs articulated by NMFS but held that defendants misconstrued plaintiffs’ section 7 claim.  The court held that while EPA retains discretion to articulate and implement its own protective measures, EPA must do so consistent with requirements of the ESA. Here, the court found that EPA failed to implement any protective measures whatsoever. Therefore, the court determined plaintiffs may proceed with their section 7 claim.

The court also rejected the defendant’s contention that EPA could only be held liable for a section 9 violation if listed species were actually harmed by EPA’s actions.  Defendants argued that because plaintiffs failed to identify any fish that were actually, physically injured by EPA’s action, the court should dismiss the section 9 claim.  But the court noted that a “reasonably certain threat of imminent harm” to listed species is sufficient grounds for a successful section 9 claim.  Here, plaintiffs alleged that EPA’s authorization of the pesticide use presented such a reasonably certain threat of imminent harm.  As a result, the court permitted the plaintiff’s section 9 claim to go forward.

D.C. Circuit Holds that Recovery Plan Objectives are Not Binding on the Services

 In a 2-1 decision (pdf), the United States Court of Appeals for the District of Columbia Circuit recently upheld the decision of the Fish and Wildlife Service to delist the West Virginia northern flying squirrel (Glaucomys sabrinus fuscus). The lower court held that the Service violated the Endangered Species Act (ESA) by removing the species from the list of endangered and threatened species despite the fact that several Recovery Plan Criteria had not been satisfied. In its decision, the D.C. Circuit held that “[a] plan is a statement of intention, not a contract,” and that “[i]f the plan is overtaken by events, then there is no need to change the plan; it may simply be irrelevant.”

This decision is noteworthy for both what it did and did not hold. Specifically, although the D.C. Circuit held that recovery plans are not de facto binding, it did not hold that the federal wildlife agencies are free to disregard such plans when taking delisting actions. As such, the federal wildlife agencies should explain themselves whenever a delisting action deviates from the recovery plan. This approach is consistent with the commentators who have argued that while recovery plans are not mandatory agencies must explain themselves when they deviate from such plans.

Given the uncertainties and the necessarily iterative learning process inherent in conservation biology, recovery plans are also necessarily tentative. As a result, the courts have been hesitant to require the wildlife agencies to comply with plans. At the same time, however, the plans will generally be evidence of the best available science since they are developed outside the context of any individual dispute; deviations from the plan thus should require explanation.

Dale D. Goble. Recovery, in Endangered Species Act: Law, Policy, and Perspectives (Donald C. Baur and William Robert Irvin, eds. 2010). This line of reasoning comports with both the language and history of the Endangered Species Act and the Administrative Procedure Act as interpreted by the judiciary.

Ninth Circuit Dismisses Challenge to Injunction in Delta Smelt Case

The United States Court of Appeals for the Ninth Circuit has granted (pdf) a motion by appellees to dismiss an appeal pursued by the Natural Resources Defense Council and other organizations from an interim order enjoining one component of a reasonable and prudent alternative imposed by the Fish and Wildlife Service on operations of the Central Valley Project and State Water Project.  The order, which we reported on here, enjoined implementation of a water management action, referred to as the “Fall X2 Action,” which 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 in wet years, such as 2011.  The lower court had previously held that the Service's biological opinion and reasonable and prudent alternative violated the Administrative Procedure Act and Endangered Species Act, as we reported here.

The injunction was amended after it was initially issued to cover the period from October 15 to December 1, 2011, only.  Despite this fact, NRDC and others pursued their appeal even after the injunction expired.  The court held that because the period for implementation of the Fall X2 Action had passed, the challenge to the injunction was moot.

Ninth Circuit Holds that Bureau of Reclamation is Not Required to Consult Annually on Its Operation of Glen Canyon Dam

On August 13, 2012, the United States Court of Appeals for the Ninth Circuit laid to rest litigation that threatened to profoundly affect water and power supplies for 25 million people throughout the arid Southwest.

In Grand Canyon Trust v. U.S. Bureau of Reclamation (pdf), the Ninth Circuit held that the U.S. Bureau of Reclamation (Reclamation) is not required to consult with the U.S. Fish and Wildlife Service (Service) under section 7 of the Endangered Species Act (ESA) every year when it prepares an annual operating plan for the Glen Canyon Dam.

The court held that even if operation of the dam may affect the endangered humpback chub (Gila cypha)
or adversely modify its critical habitat in the Colorado River below the dam, Reclamation is not required to consult because, by statute, it is not at liberty to deviate from certain long-term operating criteria each time it formulates a new annual operating plan.  The court observed that "to allow ESA challenge on an annual basis for each [annual operating plan] would be unduly cumbersome and unproductive in addressing the substance of environmental issues."

Of more concern to the states that depend on water from the Colorado River, if Reclamation were required to consult every year, it could have largely transferred the operation of the dam to the Fish and Wildlife Service, which could have imposed different operational constraints on the dam from year-to-year for the benefit of the humpback chub, regardless of its effects on long-term water and power supply.

The court reasoned that under section 7 of the ESA, a federal agency is only required to consult with the Service if it takes a discretionary action that could inure to the benefit of a listed species.  The Court determined that Reclamation is restricted by statute to describe its operation of the Glen Canyon Dam in accordance with the long-term operating criteria in each annual operating plan.  In other words, Reclamation is not at liberty to deviate from, or revise the long-term operating criteria pursuant to which it must operate the timing, rate, and volume of water it releases every time it prepares an annual operating plan.  Therefore, in preparing an annual plan, Reclamation lacks the discretion to deviate from the long-term operating criteria in a way that could benefit the humpback chub.  No discretion; no duty to consult.

As the court concluded, "by challenging the [annual operating plans] and urging each one requires separate ESA consultation, the Trust is continuously challenging Reclamation's implementation of [the long-term operating criteria] on an annual basis . . . ."  In the court's view, the true target of the Trust's ESA citizen suit is Reclamation's choice of long-term operating criteria.  But, as the court observed,  Reclamation fully complied with ESA consultation requirements before it selected those long-term criteria, and issuance of each annual operating plan according to those criteria does not continuously re-open the criteria to challenge under the ESA.

Of course, the decision ends only one battle in a larger war.  In 2011, the Service issued a new biological opinion and incidental take statement for Reclamation's proposed 10-year continued operation of the dam pursuant to the long-term operating criteria as well as certain "High Flow Experimental Releases" designed to benefit the humpback chub.  Given the history of litigation, the 2011 biological opinion and incidental take statement are not likely to escape judicial scrutiny.

Court Rejects Service Listing of Slickspot Peppergrass

In a recent decision (pdf), the United States District Court for the District of Idaho remanded a determination (pdf) by the U.S. Fish and Wildlife Service to list slickspot peppergrass (Lepidium papilliferum), a small, flowering plant in the mustard family, as threatened under the Endangered Species Act.  The controversy  over the listing of the species has spanned more than a decade, resulting in numerous Service determinations and court orders.

Slickspot peppergrass is only found in portions of Idaho.  Idaho's Governor, Butch Otter, and others brought the case challenging the Service's listing determination.  Plaintiffs challenged the listing on a number of grounds.  The Court ruled against plaintiffs on all but one claim discussed below.

As the court explained, the ESA defines "threatened" as "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). In its listing determination, the Service defined the term "foreseeable future" to mean "that period of time over which events can reasonably be anticipated."  Plaintiffs argued and the court agreed that this definition is legally insufficient.  The court reasoned as follows:

"The definition provided by the Service makes no reference to the actual species at issue.  In fact, if this Court upheld the definition, it could conceivably be used for any species. It is generic on its face.  The ESA requires more."

Slip Op. at 38.  In light of the fact that the court rejected plaintiffs other claims regarding among other things the population trend and threats to habitat of the species, it is likely that the controversy over the species will continue.

Ninth Circuit rejects challenge by environmental plaintiffs to water contract renewals by the Bureau of Reclamation

The United States Court of Appeals for the Ninth Circuit issued a 2-1 decision (pdf) affirming a lower court holding that plaintiff environmental groups lacked standing to challenge the renewal of certain water contracts by the Bureau of Reclamation and that other contract renewals by the Bureau were not subject to consultation under section 7(a)(2) of the Endangered Species Act because the renewals constituted non-discretionary actions outside the scope of the consultation requirement.

At issue in the case was the renewal of water contracts between the Bureau and two sets of contractors for Central Valley Project water in California, referred to as the DMC contractors and Settlement contractors.  Plaintiffs alleged that the renewals triggered consultation under section 7(a)(2), and that the Bureau failed to fulfill its obligations under that provision.

The lower court held that the plaintiffs lacked standing to challenge the renewals for the DMC contractors, and the renewals with the Settlement contractors were non-discretionary and therefore not subject to section 7(a)(2).  The Ninth Circuit affirmed.  It noted that the DMC contracts include a shortage provision that allows the Bureau to curtail water deliveries to meet its legal obligations.  The court held that there was no threat of injury because the contracts did not inhibit the ability of the Bureau to fulfill its obligations under section 7(a)(2).  With respect to the Settlement contracts, the court held that federal and state law require the Bureau to renew the contracts.  The court went on to opine that the Bureau's hands are tied so that section 7(a)(2) is not triggered.

Court Upholds Listing of Healthy Species

On June 12, 2012, the United States District Court for the District of Columbia issued a decision (pdf) upholding the listing of the shovelnose sturgeon (Scaphyrhynchus platorynchus) as a threatened species, although it is by all accounts thriving, and upheld a partial ban on commercial fishing of the shovelnose sturgeon, despite the lack of a similar ban on recreational fishing.  The Court upheld the foregoing actions by the U.S. Fish and Wildlife Service (Service) because the shovelnose sturgeon is almost identical in appearance to the pallid sturgeon (Scaphirhynchus albus), an endangered species.

Section 4(e) of the federal Endangered Species Act (ESA) authorizes the listing of a healthy species if all of the following are found:

(A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of [the ESA].

After the Service listed the shovelnose sturgeon, a popular commercial fish inhabiting the Missouri and Mississippi river basins, whose roe are a common ingredient for many caviar, the Illinois Commercial Fishing Association filed an action in federal court challenging the decision under the Administrative Procedure Act (APA), the ESA, the National Environmental Policy Act, and the Regulatory Flexibility Act.  After dropping the latter two claims early on, the Court addressed the APA and ESA claims.  

Foreshadowing its ultimate decision, the Court stated that when reviewing "rule makings such as this one, the threshold for surviving judicial review is a low one.  Where, as here, the agency's technical expertise is involved, the Court 'must look at the decision not as the chemist, biologist, or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimal standards of rationality."  Then, analyzing the record, the Court found that there was a wealth of evidence to support the three factors for listing.  Specifically, the Court found that there was evidence that fish biologists and commercial fisherman have trouble distinguishing between the pallid and shovelnose sturgeon; that as a result of the inability to distinguish between the species, commercial fishing of shovelnose sturgeon represents a significant threat to the survival of the pallid sturgeon; that a prohibition on take of the shovelnose sturgeon in areas where its habitat overlaps with the pallid sturgeon will substantially advance law enforcement efforts to protect the pallid sturgeon; and that such a prohibition will further the ESA's goal of conserving the pallid sturgeon.

The Court also rejected a handful of other arguments, including the claim that the rule prohibiting take was arbitrary and capricious because it was limited to commercial activities, finding that there was substantial evidence to support the finding that commercial fishing as opposed to recreational fishing posed a greater risk to the survival of the pallid sturgeon.

Thus, the Court upheld the Service's listing of a species that is by all accounts healthy and thriving.

 

Court denies motion for preliminary relief in case pitting sea lions against salmon

Recently, the United States District Court for the District of Oregon issued a decision (pdf) denying the motion of plaintiff environmental groups for a preliminary injunction to halt lethal removal of California sea lions (Zalophus californianus) from the Columbia River to reduce predation pressure on salmonids as they migrate past the Bonneville Dam.  The decision is the latest chapter in a long-running dispute over efforts to protect salmon runs in the Columbia River system.

The States of Oregon, Washington, and Idaho applied for and obtained authorization from the National Marine Fisheries Service (NMFS) to remove the sea lions.  Plaintiff environmental groups challenged the decision to authorize removal, and Native American tribes intervened in support of the States.

Plaintiffs argued that NMFS acted unlawfully by authorizing the action without making a determination regarding incidental take of Stellar sea lions (Eumetopias jubatus) listed under the Endangered Species Act (ESA) and that NMFS also acted unlawfully by authorizing lethal take under the Marine Mammal Protection Act (MMPA).  With respect to the first argument, the court held that plaintiffs failed to show that harm to Stellar sea lions is likely to occur and so failed to demonstrate irreparable injury, which is a prerequisite for preliminary relief.  With respect to the second argument, the court held that the plaintiffs made a showing or irreparable harm but concluded that the public interest would be more harmed by issuance of an injunction than denial.  The court reasoned that issuing the injunction would harm defendants' ability to protect ESA listed salmonids.

Ninth Circuit Reverses Decision and Holds Forest Service "Approval" of Suction Dredge Mining Notice of Intent Triggers Duty to Consult

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

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Court rejects federal government effort to foreclose discovery in failure to reinitiate case

In Conservation Congress v. Finley, 2012 U.S. Dist. LEXIS 61634 (May 2, 2012), plaintiffs challenge agency decisions that authorize the Beaverslide Timber Sale and Fuel Treatment Project located in the Six Rivers National Forest in northern California on the grounds the project violates the Endangered Species Act (ESA), National Environmental Policy Act, and National Forest Management Act.  Among other things, plaintiffs allege that the Forest Service unlawfully failed to reinitiate consultation with the Fish and Wildlife Service under section 7(a)(2) of the ESA.  After plaintiffs propounded discovery with respect to the failure to reinitiate claim, federal defendants sought a protective order.  Federal defendants advanced numerous arguments including the contention that the Administrative Procedure Act (APA) governs plaintiffs' failure to reinitiate claims even if it does not govern failure to consult claims in light of Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1030 (9th Cir. 2005).  In an eight-page order (pdf), the court rejected defendants' arguments noting that it cannot "discern a material, principled reason to distinguish between failure-to-consult and failure-to-reinitiate-consultation cases."  This decision reaffirms the fact that the federal government cannot use the APA to straight-jacket the judiciary when it reviews failure to act claims.

Court finds that Section 9 does not require demonstration of future harm

In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead in violation of Section 9 by allowing too many wild horses in the Murderer's Creek Wild Horse Territory in the Malheur National Forest.  While the Court eventually held that because of disputed issues of material fact neither party was entitled to summary judgment on the Section 9 claim, the Court resolved two key legal issues in plaintiffs' favor, including the above. 

In 1971, Congress enacted the Wild Horses Act.  Under the Act, the Forest Service was tasked with managing wild free-roaming horses and burros by establishing wild horse territories, developing management plans for each territory, determining an appropriate management level (AML) of wild horses in each territory, and maintaining a current inventory of wild free-roaming horses and burros.  

In 1975, it was estimated that 174 horses resided in Murderer's Creek.  Subsequently, the Forest Service, along with the Bureau of Land Management, adopted a management plan that established an AML of between 60 and 70 horses.  In 1984, the agencies updated the plan and revised the AML to an average of 100 horses, with a not to exceed level of 140 horses.  In 2006, the census data revealed that there were approximately 436 horses in Murderer's Creek.  In 2007, the agencies adopted a second management plan for Murderer's Creek, establishing an AML of 50 to 140 horses.

In its ruling on the cross-motions for summary judgment, the Court acknowledged that in order to prevail on the Section 9 claim, the plaintiffs must prove by a preponderance of the evidence that the Forest Service's failure to control the wild horse population has resulted in take of MCR steelhead.  The Court also found, however, that this did not mean that plaintiffs must prove a likelihood of future harm.  The Court explained that while the relative likelihood of future harm is a factor courts must consider in tailoring the scope of any injunctive relief that is issued, to "require a citizen plaintiff to prove that 'take' is likely to occur in the future tips the balance away from the preservation of species and would thwart Congress' overriding purpose of providing 'a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved' and of providing 'a program for the conservation of such . . . species.'"  Further, with respect to the standard and scope of review for the Section 9 claim, the Court held, contrary to the Forest Service's arguments, that the matter would be reviewed de novo and that both parties would be allowed to submit extra record evidence.

Federal District Court Issues Stay in Dispute Regarding Management of Sharp Park Golf Course in Pacifica, California

The United States District Court for the Northern District of California issued an order (pdf) denying cross motions for summary judgment in a case brought 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).  Previously, we posted a blog describing plaintiffs' unsuccessful attempt to obtain a preliminary injunction in the case, here.

In the decision, the court denied motions by the defendant City and intervenors to dismiss the case on the grounds that plaintiffs lack standing.  At the same time, the court refused to rule on motions by both sides on the issue of whether the City is liable for violating the take prohibition in section 9 of the ESA.  The court noted that the Army Corps of Engineers and Fish and Wildlife Service are currently consulting under section 7(a)(2) of the ESA regarding operations at Sharp Park, including water pumping operations.  The court held that the case is appropriate for a stay pending the outcome of that consultation.  One reporter noted, "[t]he golf course has [ ] been a hot topic in San Francisco politics."  (San Francisco Examiner, April 26, 2011, by Will Reisman.)

Federal Court Declines to Halt Issuance of Flood Insurance in Puget Sound

The United States District Court for the Western District of Washington issued a decision (pdf) denying a request by the National Wildlife Federation (NWF) to enjoin the Federal Emergency Management Agency (FEMA) from providing flood insurance, either directly or through third-party entities, for any new development in certain jurisdictions in the Puget Sound area until the case is resolved on the merits.  We blogged about the case previously, here.  NWF filed the case against FEMA for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

Shortly after filing the lawsuit, NWF filed a motion for preliminary relief.  The legal standard for obtaining such relief is set forth in a recent U.S. Supreme Court decision, Winter v. Natural Resources Defense Council.  In Winter, the Supreme Court found that in order to grant preliminary relief, the plaintiff must show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of relief, the balance of hardships tips in plaintiff's favor, and that the injunction is in the public interest.  While NWF contended that FEMA failed to implement the RPA prescribed by NMFS, FEMA countered that it had made significant changes to the NFIP and implemented most of the RPA's elements.  Setting the stage for its ultimate ruling on the motion, the court noted that FEMA need not implement the precise RPA set forth by NMFS; instead, the agency may implement an alternative that does not cause jeopardy.

After opining that "FEMA has implemented various and wide ranging changes to its flood insurance program that [FEMA] contends are sufficient to satisfy its obligations under the ESA," the court concluded that plaintiff has not provided any specific evidence that jeopardy will result from FEMA's implementation of the updated NFIP.  Therefore, the court held that NWF "fails to satisfy its burden of demonstrating a likelihood of irreparable harm in the absence of an injunction."  Having ruled on the issue of irreparable harm, the court declined to address any of the other factors, including whether NWF was likely to succeed on the merits.  NWF has indicated it will proceed with the case.

While FEMA has lost a number of cases challenging its implementation of the NFIP over the past decade, including the prior case by NWF that forced the agency to consult with NMFS regarding the effect of the NFIP on listed species in the Puget Sound, FEMA's defense of this lawsuit is a further indication of its intent to continue implementing the NFIP without regard for its effects on listed species in much of the nation.

Ninth Circuit Upholds Law Directing Delisting of Distinct Populations of Gray Wolves

The U.S. Court of Appeals for the Ninth Circuit has upheld a law that orders the Secretary of the Interior to reissue a rule that delists a distinct population of gray wolves in the northern Rocky Mountains without regard to the Endangered Species Act ("ESA") and without judicial review.  Alliance for the Wild Rockies v. Salazar, No. 11-36552 (9th Cir. March 14, 2012).  As previously reported, in 2009 the Fish and Wildlife Service ("Service") issued what is known as the "2009 Rule," which designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except the populations in Wyoming.  The United States District Court for the District of Montana struck down the 2009 Rule as violating the ESA because the ESA does not permit partial delisting of a distinct population segment. 

In April 2011, President Obama signed into law Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 ("Section 1713"), which included a provision directing the Secretary of Interior to reissue the 2009 Rule without regard to the ESA and without judicial review.  A group of plaintiffs challenged the constitutionality of Section 1713 arguing that it violated the doctrine of separation of powers. 

The Ninth Circuit rejected the challenge, concluding that Section 1713 is constitutional and that when Congress directed the Service to issue the 2009 Rule "without regard to any other provision of statute or regulation that applies to issuance of such rule," Congress was in effect amending the law applicable to the agency's action, which is not a violation of the separation of powers. Therefore, the court found that Section 1713 is entitled to be enforced. 

 

 

Federal Judge Invalidates National Fire Plan Regulations

U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process “actually resulted in any delay to any National Fire Plan project.”

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of Indian Affairs, the Forest Service and the National Marine Fisheries Service (NMFS). The regulations provided an alternative process for completing ESA consultation by eliminating the need to conduct informal consultation and to obtain written concurrence from FWS or NMFS for those National Fire Plan (NFP) actions that were not likely to adversely affect listed species or designated critical habitat.

The court held that the regulations were “arbitrary and capricious” under the Administrative Procedure Act, finding that the purported rationale for the regulations was not supported by evidence in the record. Specifically, Judge Kessler found “there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures.”

Judge Kessler had upheld (pdf) the regulations in 2006, but revisited the ruling after environmental groups filed a motion for reconsideration. Judge Kessler had taken the matter under submission for six years, and apologized in a footnote for taking so long to issue the opinion.
 

North Dakota District Court Rejects Criminalization of Incidental Take of Migratory Birds

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

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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. 

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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United States Supreme Court Denies Review of Delta Smelt Commerce Clause Challenge

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.
 

Ninth Circuit Denies Emergency Injunction to Halt Wolf Hunting

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.

Court Vacates Polar Bear Special Rule, Upholds Ban on Importation of Sport-Hunted Trophies

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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Federal Court Upholds Decision to Open the Fall-Run Chinook Salmon Fishery in California's Central Valley in 2011

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.

Federal Court Issues Decision Invalidating NMFS Biological Opinion for Central Valley Project and State Water Project

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.

Federal Court Approves Plan to Address Backlog of Candidate Species for Listing

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).

Court Invalidates Columbia River Biological Opinions, Again

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.

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.

Court Upholds the Fish and Wildlife Service's Interpretation of "Endangered Species" and Decision to List the Polar Bear as Threatened

In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows.  According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA.  But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing."  In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal.  The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."

Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views."  Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science."  Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."

Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all.  Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.

Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.

While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened.  See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).  As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under section 4(d) of the ESA placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and EPA may assert its authority under the Clean Air Act to regulate GHGs.

Arizona District Court Dismisses Section 7(a)(1) Challenge to Forest Service

The United States District Court for the District of Arizona entered summary judgment (pdf) for the United States Forest Service in a case filed by Defenders of Wildlife and other plaintiffs alleging the Forest Service failed to fulfill its duty to conserve under section 7(a)(1) of the Endangered Species Act (ESA).  The case focused on efforts to conserve the Mexican gray wolf (Canis lupus baileyi) by reintroducing an experimental population of the species into the Blue Range Wolf Recovery Area, which includes portions of east-central Arizona and west-central New Mexico.  Plaintiffs complained that too often wolves reintroduced into the Recovery Area were removed by the Forest Service for preying on livestock, arguing that the Forest Service's livestock permitting program is interfering with Mexican wolf recovery efforts.

Plaintiffs pursued two specific claims against the Forest Service under section 7(a)(1).  First, they argued that the Forest Service violated section 7(a)(1) by failing to develop and implement its own Mexican wolf conservation program.  In response, the Forest Service argued that it fulfilled its obligation under section 7(a)(1) by carrying out a conservation program, namely the Mexican wolf recovery plan (pdf), developed by the Fish and Wildlife Service.  The court interpreted section 7(a)(1) to impose a requirement on the Forest Service to "carry out a substantive conservation program for the Mexican gray wolf."  But the court went on to hold that Plaintiffs' position that the Forest Service must develop its own program and may not implement a program developed by the Fish and Wildlife Service "puts form over substance" and is not supported by the statute or relevant caselaw.

Second, Plaintiffs argued that the Forest Service has not contributed to the conservation of the Mexican wolf and, instead, demonstrated a preference for wolf removal to protect domestic livestock.  The court opined that, to the extent that the Forest Service took no action to conserve the species, such inaction would plainly violate the section 7(a)(1) duty to conserve.  But, in this case, the court held that the record demonstrates affirmative action to carry out the Fish and Wildlife Service wolf conservation program.

The court's holdings are consistent with the balance of the jurisprudence interpreting section 7(a)(1) of the ESA, which support the proposition that federal agencies "have substantial discretion in determining how best to fulfill their section 7(a)(1) obligations."  As a result, the decision reiterates the difficulty would-be plaintiffs will face if they pursue a claim under section 7(a)(1) of the ESA.

Federal district court strikes down Fort Huachuca biological opinion

In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.

Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.

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National Marine Fisheries Service Authorizes Lethal Removal of California Sea Lions

The National Marine Fisheries Service (NMFS) has authorized (pdf) the states of Washington and Oregon to lethally remove California sea lions that eat thousands of endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. According to NMFS, the small number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act (ESA) have a significant effect on the ability of the fish stocks to recover. While the population of California sea lions is considered healthy and stable, the population of salmon and steelhead continues to decline – the authorization will allow state fisheries and natural resources agencies to reduce the sea lions’ effect on these vulnerable salmonid species.

NMFS originally gave the states authorization under the Marine Mammal Protection Act (MMPA) in 2008 to permanently remove identifiable sea lions that were feeding on ESA-listed fish. Environmental organizations brought suit to challenge the action in 2009. Last November, the Ninth Circuit Court of Appeals held that NMFS had violated the MMPA by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. NMFS believes the memorandum decision (pdf) issued in support of the authorization addresses the problems identified by the court.  According to the Seattle Times, however, the Human Society of the United States, an environmental organization that was a party to the 2009 litigation, filed suit today in federal district court challenging the new authorization.  (The Seattle Times, May 20, 2011, by William McCall.)

Court Enjoins Shasta Valley and Scott River Watershed Permitting Programs

On April 20, 2011, the San Francisco Superior Court issued a peremptory writ of mandate (PDF) enjoining the California Department of Fish and Game (DFG) from implementing a pilot program to facilitate recovery of the Klamath Basin coho salmon (Coho) and compliance by farmers with the DFG's Lake and Streambed Alteration Program (referred to as the Shasta Valley and Scott River Watershed-Wide Permitting Programs).

In March 2005, the California Fish and Game Commission listed the Coho as threatened under the California Endangered Species Act (CESA).  Therefore, the taking of Coho is illegal without authorization from DFG.

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Federal Circuit Sends Case to Lower Court to Determine Whether Application of Endangered Species Act Can Result in a Taking

On February 11, 2011, the U.S. Court of Appeals for the Federal Circuit reversed and remanded (pdf) the decision of a lower court, finding that the U.S. Bureau of Reclamation's implementation of a reasonable and prudent alternative may have resulted in a taking requiring just compensation under the Fifth Amendment to the U.S. Constitution.

Pursuant to congressional authorization issued in 1902 and 1905, the Bureau of Reclamation (Bureau) manages and operates the Klamath Irrigation Project (Klamath Project), which provides water to approximately 240,000 acres of irrigable crop land, as well as to several national wildlife refuges in southern Oregon and Northern California.

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Ninth Circuit Holds that Forest Service "Approval" of a Notice of Intent to Conduct Suction Dredge Gold Mining Does Not Trigger a Duty to Consult

Diver suction dredgingOn April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act.  Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).

Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "is an agency decision not to regulate legal private conduct.  In other words, the USFS's decision at issue results in agency inaction, not agency action."  Id. at *11. 

The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities.  But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."

The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7. 

A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'"  Id. at *6-7.  In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended.  Instead, the NOIs were agency inaction, not  "agency action" that could trigger a duty to consult under section 7.

The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits.  Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources.  Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources.  Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision.  It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]."  Id. at *7.

In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI."  Id. at *15.  In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways.  First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining."  Id. at *23.  Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges.  Id. at *24.  And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest.  Id.

The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).

It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.

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Federal District Court Approves Striped Bass Settlement

As reported by The Sacramento Bee, on April 5, 2011, the United States District Court for the Eastern District of California approved (pdf) a stipulated settlement agreement (pdf), over the objections of intervenors, potentially ending the ongoing dispute over the alleged impacts of striped bass predation on listed salmonids and delta smelt.  (The Sacramento Bee, April 6, 2011, by Matt Weiser)  

In 2008, plaintiffs filed a lawsuit against the California Department of Fish and Game ("Department") alleging that the enforcement of the striped bass sport-fishing regulations was resulting in the "take" of listed salmonids and delta smelt, in violation of section 9 of the federal Endangered Species Act.  Shortly thereafter, various sport fishing interests intervened in the lawsuit.

The settlement agreement obligates the Department to, among other things, collaborate with the National Marine Fisheries Service and U.S. Fish and Wildlife Service in the development of a regulatory proposal to modify the striped bass sport-fishing regulations.  The proposal, which must be based upon the best available scientific information, will be submitted to the California Fish and Game Commission along with a Department recommendation justifying the adoption of the proposal.  In addition to the development of a regulatory proposal, the settlement agreement obligates the Department to set aside $1 million to support research projects regarding predation on listed species in the Sacramento-San Joaquin Delta and/or the anadromous waters of the Sacramento and San Joaquin watersheds.

9th Circuit Rejects Commerce Clause Challenge to Delta Smelt Biological Opinion

The Ninth Circuit Court of Appeals held that the regulation of water deliveries from the State Water Project and Central Valley Project to protect the threatened delta smelt did not violate the Commerce Clause of the United States Constitution.  San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-19152 (9th Cir. March 25, 2011). 

The decision is the latest in a series of decisions by the federal appellate courts rejecting Commerce Clause challenges to the Endangered Species Act (“ESA”). 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 Supreme Court has, to date, declined to review any of the ESA Commerce Clause decisions.

The Ninth Circuit, however, rejected the argument of the Fish and Wildlife Service (and the conclusion of the district court below) that the farming company plaintiffs did not have standing to bring the lawsuit. The court concluded that the companies were not required to show a threat of imminent enforcement under the ESA. The coercive ability of the Fish and Wildlife Service to enforce the ESA is sufficient to satisfy the causation element of standing. The court’s decision provides additional support for the standing of economic interests in other pending Delta lawsuits brought under the ESA.

Court Upholds Exclusion of Critical Habitat Due To Conflict With Everglades Restoration Plan

The United States District Court for the District of Columbia upheld a decision by the Fish and Wildlife Service to exclude an area from the designation of critical habitat for the endangered Cape Sable seaside sparrow in Florida.  Center For Biological Diversity v. Salazar (D.D.C. Mar. 16, 2011) (PDF).  While conceding that the excluded area was “essential” to the sparrow’s conservation, the Service decided not to designate the area as critical habitat, in part, because of the conflict between critical habitat and the Comprehensive Everglades Restoration Project. 

The court concluded that the “balance between designating a crucial swath of critical habitat for the Sparrow, a single species, and greater flexibility for restoration of the Everglades to benefit the entire ecosystem and its many inhabiting species, is left to the Secretary’s discretion.”  Slip Op. at 32.  The decision is important because it affirms the Service’s broad discretion under the ESA to weigh and balance economic and environmental costs and benefits in the designation of critical habitat.  The Service’s decision here to balance the protection of individual species with a broader ecosystem plan stands in sharp contrast to other recent decisions by the Service to designate critical habitat in areas with approved habitat conservation plans.  These other recent critical habitat decisions create a disincentive for landowners to participate in habitat conservation plans.

Fourth Circuit Rules that Delaying Judicial Review of Controversial Biological Opinion for Pacific Salmonids Is Improper

On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration or reregistration of a pesticide.  Among the requirements, EPA must find that the pesticide will perform without "unreasonable adverse effects" on the environment.  FIFRA further provides that all EPA registration determinations are subject to judicial review in the Court of Appeals in the first instance, rather than in district court.

In 2004, as a result of a previous action filed by several environmental groups, EPA initiated formal consultation with the Service on 37 active pesticide ingredients.  In 2008, the Service issued a biological opinion (pdf) concluding that 3 of the pesticide ingredients would jeopardize numerous salmonid species and adversely affect their critical habitat.  The biological opinion was accompanied by a reasonable and prudent alternative and an incidental take statement.

Shortly after the Service issued the biological opinion, but before EPA issued a registration determination, a group of pesticide registrants and manufacturers filed suit under the federal Administrative Procedure Act, alleging that the biological opinion was not based on the "best scientific data available," a requirement of the federal Endangered Species Act.  The Service moved to dismiss the litigation on the ground that FIFRA provided the sole means of challenging the biological opinion, and an action under FIFRA could not be initiated until EPA made a registration determination.  The district court found the Service's argument persuasive, and dismissed the action, concluding that because FIFRA provided a means for reviewing the biological opinion, and because the APA is only implicated if there is a "final agency action for which there is no other adequate remedy in a court" of competent jurisdiction, the litigation had to wait until EPA made a registration determination, after which the biological opinion and registration determination could be concurrently challenged via an action brought before the Court of Appeals. 

The Fourth Circuit reversed, interpreting FIFRA's judicial review provision as applying only to agency actions either by EPA or inherent in EPA's eventual registration determination, and finding that the biological opinion was a separate agency action by the Service with its own independent and ongoing legal consequences.  Therefore, the Court held that the biological opinion was immediately reviewable under the APA.

Court Enters Temporary Stipulated Settlement in Water Project Case Following Successful Challenge to Delta Smelt Biological Opinion

On February 25, the United States District Court for the Eastern District of California entered a stipulated order (pdf) establishing operational criteria for the Central Valley Project and State Water Project through June 30, 2011, in lieu of the Reasonable and Prudent Alternative prescribed by the U.S. Fish and Wildlife Service 2008 biological opinion (pdf) regarding the effects of the Water Projects on delta smelt.  The settlement that led to the order received widespread media attention, including this story by Reuters.  The memorandum decision of the court holding that the biological opinion is unlawful and remanding it to the Service is available here (pdf).

Supreme Court Declines to Review Endangered Species Act Economic Impact Cases

The U.S. Supreme Court has denied (pdf) two petitions that sought to have the Court resolve a Circuit split regarding the evaluation of economic impacts of critical habitat designations under the federal Endangered Species Act.  The Court’s action leaves in place two recent decisions by the United States Court of Appeals for the Ninth Circuit upholding the use of the so-called “baseline” methodology by the U.S. Fish and Wildlife Service ("Service").  Under the “baseline” methodology, the Service restricts the evaluation of economic impacts of a potential critical habitat designation to the impacts of the designation alone and does not consider the cumulative impact of the critical habitat designation and the listing of the endangered species.  Arizona Cattle Growers' Assn. v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (pdf); Home Builders Assn. of Northern California v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) (pdf). 

In sharp contrast to the above cases, the United States Court of Appeals for the Tenth Circuit invalidated the Service’s use of the “baseline” methodology.  New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (pdf).  The Tenth Circuit held that the Service’s use of the “baseline” methodology rendered an economic analysis relying on the baseline approach "virtually meaningless" because it allowed the agency, in all cases, to find no economic impact to the critical habitat designation.  As a result, in states within the Tenth Circuit, the Service evaluates the “co-extensive” economic impacts of listing and the critical habitat designation.  Use of the “co-extensive” methodology typically results in much higher estimates of economic impacts.

FEMA Settles Lawsuit Challenging Implementation of the National Flood Insurance Program in Florida

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate.  See FEMA's Program Description (pdf).  Plaintiffs, the National Wildlife Federation and Florida Wildlife Federation, filed a complaint in July of last year alleging that FEMA violated Section 7 of the Endangered Species Act by failing to consult with the Wildlife Agencies regarding the Program's potential impacts on the loggerhead sea turtle, green sea turtle, hawksbill sea turtle, leatherback sea turtle, and Kemp's ridley sea turtle.  Section 7 requires federal agencies to, among other things, consult with the Wildlife Agencies to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]." 

Under the terms of the settlement agreement, FEMA has 15 days from the entry of a court order approving the proposed settlement to send the Wildlife Agencies a written request to initiate informal consultation.  Further, within 11 months of the entry of a court order, FEMA is required to prepare and submit a biological assessment to the Wildlife Agencies, along with a written request  to initiate formal consultation.

As noted in our post of July 14, 2010, similar lawsuits are currently pending in the the District of New Mexico, the Eastern District of California, and the District of Arizona.

Court Sides with Water Agencies and Farmers in Delta Smelt Matter

On December 14, 2010, the United States District Court for the Eastern District of California issued a 225 page decision (pdf) granting in part plaintiffs' motions for summary judgment in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. Dec. 14, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.  The court held for plaintiffs on numerous grounds.

Ninth Circuit Remands No Jeopardy Biological Opinion to Fish and Wildlife Service

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since the Service acts as both the action agency (as operator of the hatchery) and consulting agency (as the agency required to issue biological opinions for the species).

Plaintiffs challenged both the biological opinion and the incidental take statement issued by the Service on a number of grounds.  The Ninth Circuit summarized its holding as follows:

[T]he Service committed legal error by limiting the scope of the action to five years; failing to articulate a rational connection between its findings in the 2008 BiOp and its no jeopardy conclusion; and issuing an inadequate incidental take statement. The Hatchery’s reliance on a legally flawed biological opinion was arbitrary and capricious.

With respect to the Service's decision to limit the scope of the action to five years, the Ninth Circuit noted that the hatchery had been operating for 70 years "and is expected to continue operating into the future."  The court held that the Service's failure to take into account a long view of the hatchery's effects was arbitrary and capricious.  With respect to the Service's no jeopardy determination, the Ninth Circuit said it was not possible to square the conclusion that the population trend of bull trout in Icicle Creek is negative with the conclusion that the distribution and abundance of the species in the action area is not likely to change.

Ninth Circuit Finds National Marine Fisheries Service (NMFS) in Violation of the Marine Mammal Protection Act

On November 23, 2010, in Humane Society of the United States v. Locke, the U.S. Court of Appeals for the Ninth Circuit held (pdf) that NMFS violated the Marine Mammal Protection Act (MMPA) by failing to adequately explain its finding that sea lions are having a “significant negative impact” on the decline or recovery of salmonid species listed under the Endangered Species Act (ESA) in the Columbia River. The ruling invalidated NMFS’s decision authorizing the states of Washington, Oregon, and Idaho to lethally remove California sea lions from the Bonneville Dam area. The 2008 decision (pdf) allowed the states to take the lesser of either 85 sea lions per year, or the number required to reduce the observed predation rate to one percent of the salmonid run at the dam. The authorization had been provided pursuant to section 120 of the MMPA, which allows “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks which . . . have been listed as threatened . . . or endangered species under the [ESA].”

The court based its decision, in part, on the fact that NMFS had previously determined that fisheries that caused similar or greater mortality among the same salmonid populations were not having significant negative impacts. Specifically, NMFS had twice concluded in 2007 that the taking of ten percent of the local salmonid populations would not appreciably reduce the likelihood of recovery of the listed species. The Ninth Circuit reasoned that, absent a satisfactory explanation from NMFS, it was unable to reconcile this conclusion with the NMFS decision at issue, which determined a predation rate of one percent would negatively impact the listed species. In finding that NMFS failed to adequately explain these disparate factual determinations, the court ordered NMFS to provide an explanation sufficient to permit meaningful judicial review. According to the Seattle Times, NMFS is disappointed by the decision but hasn’t decided on its next step.
 

District Court Upholds Certain Aspects of Canada Lynx Critical Habitat Rule but Remands Economic Analysis

Two statewide snowmobile associations challenged the Fish and Wildlife Service's 2009 final rule designating critical habitat for the contiguous United States distinct population segment of the Canada lynx on the grounds the Service violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).  In an order (PDF) dated September 10, 2010, the United States District Court for the District of Wyoming rejected plaintiffs' NEPA claims but concurred with plaintiffs that certain lands were designated as critical habitat in the final rule due to the Service's failure to conduct a full analysis of the economic impacts of the rule.

The Service listed (PDF) the Canada lynx as threatened in 2000.  The range of the species spans 14 states from Maine to Washington.  In its final rule, the Service designated approximately 39,000 square miles of land as critical habitat.  Under the ESA, critical habitat is defined to include the specific areas within the geographical area occupied by the species on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection.

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Ninth Circuit Amends Earlier Opinion Regarding Adverse Modification of Critical Habitat

The U.S. Court of Appeals for the Ninth Circuit amended an opinion it filed earlier this year in Butte Environmental Council v. U.S. Army Corps of Engineers, which we wrote about here.  The case concerns a challenge to the Fish and Wildlife Service’s (Service) finding that a proposed business park would not adversely modify the critical habitat of three listed species under the Endangered Species Act (ESA). While the Ninth Circuit did not change its holding from the June opinion (PDF), it did clarify previous dicta concerning the Service’s analysis of adverse modification under the ESA.  In a footnote, the opinion now states that the court “express[es] no opinion on whether the ‘adverse modification’ inquiry under section 7 of the ESA properly focuses on the effects of an action on a particular unit of critical habitat or on total critical habitat nationwide.”  The court had previously highlighted the fact that the proposed project would affect only a very small percentage loss of the total critical habitat for the species.  In its amended opinion (PDF), the court revised its analysis to include the percentage loss for each species’ unit in addition to the percentage of nationwide loss.  It concluded that the project would destroy only a very small percentage of each affected species’ critical habitat whether viewed on a unit or nationwide basis, and, therefore, the Service’s determination that critical habitat would be destroyed was not inconsistent with its finding of no “adverse modification.”

ESA Take Prohibition Does Not Apply to Endangered Plants On Privately-Owned Wetlands

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned “waters of the United States” is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to “remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction.” The court rejected plaintiffs’ argument that the term “areas under federal jurisdiction” includes areas that qualify as wetlands and other “waters of the United States” under the Clean Water Act. The decision is important because it is the first circuit court decision to interpret the jurisdictional scope of the plant protection provisions of section 9 of the ESA.

Employees of the California Department of Fish and Game identified the endangered Sebastopol meadowfoam on private land within an area determined to be an “adjacent wetland” under the federal Clean Water Act. Suspecting that the plants had been unlawfully transplanted, a Fish and Game employee removed the plants to a Fish and Game evidence locker. Plaintiffs sued the Fish and Game employees and the landowner for violating the ESA. The plaintiffs argued that the term “areas under federal jurisdiction” in section 9(a)(2) of the ESA included areas within the regulatory jurisdiction of the U.S. Army Corps of Engineers under section 404 of the Clean Water Act. The Ninth Circuit disagreed. It concluded that the term “areas under federal jurisdiction” was ambiguous, and interpreted the term “as not including all of the ‘waters of the United States’ as defined by the [Clean Water Act] and its regulations. The court acknowledged that the decision did not foreclose the possibility that the U.S. Fish and Wildlife Service might adopt some other statutory construction. In this case, the Service sided with the defendants and argued that ESA prohibition on “removing” endangered plants applies to endangered plants on federal land and on federal property interests such as conservation easements, leasehold estates, and special management areas.

Tenth Circuit Affirms Decision to Establish an Experimental Falcon Population in New Mexico

 The United States Court of Appeals for the Tenth Circuit affirmed (PDF) a lower court decision denying a petition for review submitted by Forest Guardians challenging the decision of the Fish and Wildlife Service (Service) to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons into portions of southern New Mexico. The species was listed (PDF) as endangered in 1986 because it was believed extirpated from its historic range of portions of Arizona, New Mexico, and Texas in the United States though it persisted in northern Mexico. In 2001, individuals of the species were sighted nesting in Luna County, New Mexico. In subsequent years, other individual Falcons were sighted in the same area. In 2005, the Service proposed a rule (PDF) under section 10(j) of the Endangered Species Act (ESA) that would authorize reintroduction of captive-bred Falcons in Arizona and New Mexico. Then in 2006 the Service issued a final 10(j) rule authorizing reintroduction in southern New Mexico. The Service noted the existence of a small number of individual Falcons in the wild in New Mexico in the rule, but it concluded that these individuals do not constitute a population. It also stated that the nonessential experimental population would be introduced in a geographically distinct area from naturally occurring Falcon populations.

Forest Guardians filed an action in 2006 in the United States District Court for the District of New Mexico to compel the Service to respond to a petition to designate critical habitat for the Falcon it had previously submitted and to challenge the 10(j) rule on the grounds that the Service violated the ESA and National Environmental Policy Act (NEPA) in promulgating the rule. The trial court held for Forest Guardians with respect to the critical habitat cause of action, but held for the Service with respect to the other causes of action. Forest Guardians then appealed. Forest Guardians challenged the Service’s application of its own definition of “population” under the ESA, but the Tenth Circuit held that the Service’s definition constitutes a reasonable interpretation of the Act and that substantial evidence supports the Service’s application of that definition in this instance. The court relied substantially on two factual conclusions reached by the Service: that a single breeding pair of falcons does not constitute a population and that dispersing falcons in New Mexico were too distant for the population in Mexico to form part of that population. Forest Guardians also challenged the Service’s issuance of the 10(j) rule on the grounds it violated NEPA, claiming that the Service predetermined the outcome of its analysis. The court rejected this claim as well.

Ninth Circuit Overturns Grazing Regulation Amendments for Violation of Endangered Species Act

In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit  upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations.  The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.

BLM began the process of amending the grazing regulations in 2002 and assembled a total of three interdisciplinary teams to review the proposed changes.  Two of these teams criticized the new regulations and concluded they would ultimately lead to environmental harm and would cause a "slow long-term adverse effect on wildlife and biological diversity in general."  BLM ignored these conclusions and in 2006 issued a final rule (PDF) adopting the proposed regulations.  The 2006 regulations made three principal changes to the regulations:  (1) they decreased the level of public input in public rangelands management, (2) they generally made it more difficult for BLM to conduct environmental enforcement on public rangelands, and (3) they ceded ownership rights to permanent rangeland structures and water from the United States to private ranchers.  With respect to the ESA, BLM concluded that the 2006 regulations were merely administrative and would not have an effect on listed or candidate species or proposed or designated critical habitat and therefore no consultation with FWS was required under section 7 of the ESA.

Section 7 of the ESA requires a federal agency to consult with the Service if the federal agency determines that any action on its part may affect any listed species or designated critical habitat.  Here, the Ninth Circuit found that BLM's conclusion that the 2006 regulations would not affect listed species or critical habitat was arbitrary and capricious.  First, the court noted that the "sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments 'may affect' a listed species or its critical habitat."  Second, the Service itself concluded that the 2006 regulations would affect special status species and their habitat.  The Service was primarily concerned with the decrease of public input and change in water ownership, which would reduce habitat quality and have a long-term adverse effect on wildlife.  Third, even BLM's own scientists advised the agency that a section 7 consultation was necessary.  Finally, plaintiffs submitted extra-record testimony that the regulations would have an adverse effect on wildlife and biological diversity, listed salmonids, and many listed bird species.  Therefore, the court concluded that BLM had no rational basis to conclude that the 2006 regulations would not affect listed species or their habitat.

Ninth Circuit Affirms Steelhead Listing Decision that Excludes Resident Rainbow Trout

On August 20, 2010, the United States Court of Appeals for the Ninth Circuit held that the National Marine Fisheries Service ("NMFS") did not violate the law when it omitted resident rainbow trout from the Distinct Population Segment of California Central Valley steelhead ("CV Steelhead"), despite the fact that rainbow trout and steelhead are the same species and can interbreed.  The court affirmed NMFS's listing of the DPS Steelhead as a threatened species under the Endangered Species Act ("ESA").

In order to be listed as a threatened species, the ESA requires that, based on the best scientific information available, a species will, within the foreseeable future, likely be in danger of extinction throughout all or a significant portion of its range.  The ESA defines the term "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

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Ninth Circuit Rejects Challenge to Vernal Pool Critical Habitat; Limits Scope of Economic Impact Analysis

For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (“ESA”).  In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that “adversely modify” critical habitat.  The court rejected Home Builders’ claim that the ESA limited the designation of critical habitat to those areas that contain all (rather than some) of the physical or biological features essential to the conservation of the vernal pool species. The court also rejected the claim that, in designating critical habitat, the Fish and Wildlife Service is required to determine when the protected species are required to be conserved.  Following its recent decision in Arizona Cattle Growers’ Assn. v. Salazar, 606 F.3d 1160 (9th Cir.  2010), the court upheld the Service’s analysis of the economic impacts of the critical habitat designation.  The court concluded that, unlike the National Environmental Policy Act, the ESA does not require the Fish and Wildlife Service to evaluate cumulative impacts of the critical habitat designation.

Court Sets Aside Rule Delisting Gray Wolf

The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy. 

The gray wolf was listed as endangered under the ESA in 1974.  The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s.  Under the Bush Administration, the Service sought to delist the wolf in 2008 (including the Wyoming wolves), but environmental plaintiffs successfully enjoined implementation of that rule.  The 2009 Final Rule removed ESA protection for the gray wolves in Idaho and Montana, but preserved protection for the Wyoming Wolves noting that the state's regulatory framework failed to meet the ESA's requirements. 

In challenging the 2009 Final Rule, plaintiffs argued that the Service had violated the ESA by listing something less than a DPS (by only protecting the Wyoming wolves and excluding Idaho and Montana) as endangered and that the definition of a  "species" is nothing smaller than a DPS.  The Service defended its listing decision arguing that the ESA allows for listing of part of a DPS because the term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range.  The court explained that the Service's argument could not be reconciled with the plain reading of the ESA and that the term "species" excludes distinctions below that of a DPS.  The court further concluded that the Service's interpretation of the ESA was not deserving of deference and was unreasonable.

The Federal Government Loses Another Round in the Litigation over Fire Suppression on Forest Service Lands

The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands.  The decision is described in this article.

In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA.  In response the Forest Service Employees for Environmental Ethics filed another lawsuit.

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District Court Finds Biological Opinion for Water Diversions on Yuba River Arbitrary and Capricious

In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection between the factual determination that the project would perpetuate unmitigated stressors and the conclusion that those stressors would not jeopardize the listed fish.  The court reiterated that an agency action can only “jeopardize” a species’ existence if that “agency action causes some deterioration in the species’ pre-action condition,” but that these effects can only be understood in the context of the current status of the species, the environmental baseline, and future cumulative effects. The court held that in order to determine that other stressors identified in the BiOp will not cause a decline in the identified viability factors for the species, “the BiOp must discuss (through some method) the magnitude of the stressors’ impact, the populations’ ability to tolerate this impact, and the reason why any decline will not reduce the overall likelihood of survival or recovery.”

The court also found that the BiOp failed to consider various other aspects of the problem, including hatcheries, the San Francisco Bay Delta, poaching, the species’ overall viability, and global warming. The court found that evidence in the administrative record suggested that each of the first four stressors is one that is likely to adversely affect the listed species and that failure to consider the effect of the stressor on the listed species rendered the BiOp’s no-jeopardy conclusion arbitrary and capricious. As to global warming, the court stated that it “cannot conclude that global warming’s potential impacts are so slight that NMFS could ignore them without discussion” and that while the BiOp discussed present impacts on water temperature, it did not address whether global warming will alter temperature or flow. Therefore, by failing to discuss global warming, NMFS failed to address an important part of the problem.

With respect to the BiOp’s critical habitat analysis, “the BiOp concluded that the project would not adversely modify critical habitat because the project’s net ‘impacts’ on habitat were at worst neutral when measured against conditions immediately preceding the BiOp.” The court concluded that this conclusion was arbitrary and capricious as the court could not discern the reason underlying the critical habitat analysis.

Ninth Circuit Says Endangered Species Critical Habitat Not LImited to Where the Species Resides; Agency May Restrict Analysis of Economic Costs of Critical Habitat

In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (“Service”) determination that under the Endangered Species Act (“ESA”), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as “occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a “baseline” approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

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California Court of Appeals Holds State Agencies are Subject of California Endangered Species Act

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term “person” in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that “a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the California Department of Fish and Game.”  The court decided the matter – despite the fact that DWR complied with the trial court’s writ and obtained proper authorization from the California Department of Fish and Game thus rendering the case moot – due to the importance of the issue.

Ninth Circuit Determines that Critical Habitat Can be Destroyed Without Meeting Definition of "Adverse Modification"

The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass.  The Service had determined that the proposed project contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and vernal pool tadpole shrimp.  The Service concluded that the project would destroy 234.5 acres of this critical habitat, which was equal to 0.04% of the fairy shrimp's total critical habitat nationwide and 0.10% of the tadpole shrimp's total critical habitat nationwide. 

The court rejected each of the plaintiff's arguments challenging the Service's determination that the project would not adversely modify the critical habitat of the listed species.  First, plaintiff argued that the Service applied an improper definition of "adverse modification" and did not account for the "recovery needs" of the affected species, as required by the court's previous decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Services.  In Gifford Pinchot, the court held that the regulatory definition of "adverse modification" contradicted Congress's command and that the definition of adverse modification of critical habitat was properly a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival or recovery of a listed species.  The court rejected plaintiff's contention, citing the Service's statement in the biological opinion that it did not rely on the regulatory definition of "destruction of adverse modification" but relied upon the statute and the court's decision in Gifford Pinchot.  

Second, despite the fact that the proposed project would destroy 234.5 acres of critical habitat for the fairy shrimp and tadpole shrimp, the court explained that an area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' overall critical habitat.  The court noted that the project would only affect a very small percentage of the total critical habitat for the listed species. While the plaintiff argued that the Service's focus on the project's impact on the species' total critical habitat masked the project's localized impact, the court stated that where "there is no evidence in the record that 'some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the [Service].'"  

Finally, the court rejected plaintiff's argument that the Service failed to address the rate of loss of critical habitat, stating that the Endangered Species Act did not require the Service to calculate rate of loss.

Court Defers to Fish and Wildlife Service's Determination Regarding Critical Habitat of Endangered San Diego Fairy Shrimp

On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as "the specific areas within the geographical area occupied by the species, at the time it is listed . . . ." 

Although the Service issued a final rule listing the San Diego fairy shrimp as endangered on February 3, 1997, it did not issue a final rule designating critical habitat until October 2000.  This designation, however, was short lived, because in response to a legal challenge by several industry groups, the Service sought a voluntary remand for further consideration.  In December 2007, the Service issued a revised final rule designating critical habitat for the fairy shrimp, this time designating, among other tracts of land, approximately 275 acres of land owned by plaintiffs.  

Plaintiffs filed an action challenging the Services second critical habitat designation, asserting that there was no evidence that the fairy shrimp occupied their property in 1997, when the species was listed.  The Court rejected plaintiffs' challenge, finding that, based on surveys conducted in 2001, and the fairy shrimp's sedentary life cycle, it was reasonable for the Service to conclude that fairy shrimp occupied the premises in 1997.

Plaintiffs also challenged the critical habitat designation on the basis that the Service failed to properly consider the economic impact of its designation.  Again, however, the Court deferred to the Service's determination, and upheld the Service's analysis of the economic impacts of its designation.

The deference shown by the Court in this case is common in much Endangered Species Act litigation, as such litigation often falls under the Administrative Procedure Act, which authorizes a reviewing court to set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

Federal District Court Issues Findings and Conclusions in Delta Smelt Case

On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and Wildlife Service (FWS).  The CVP and SWP provide water for approximately 25 million Californians.

While the Court did not issue an order, it did indicate that the Plaintiffs had already succeeded on their National Environmental Policy Act claims and were likely to succeed on at least some of their Endangered Species Act claims.  Specifically, the Court determined that "FWS’s reliance on analyses [of the effects of the CVP and SWP] that utilize raw (as opposed to population-normalized) salvage data is an undeniable failure to use the best available scientific methodology."  Findings & Conclusions at 52.  Furthermore, the Court determined that Reclamation erred by failing to ensure that "the RPA utilized the best available science."  Id. at 116.

The Court is holding a hearing to address whether to issue an injunction on May 28, 2010.

Environmental Protection Agency Stipulates to Endangered Species Act Compliance for 75 Pesticides

On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, and ensuring that the pesticides uses it authorizes will not have unreasonable adverse effects on the environment, including on threatened and endangered species.  With respect to the 75 pesticides at issue in the CBD litigation, CBD alleged that the EPA failed to comply with section 7(a)(2) of the Endangered Species Act when it registered the pesticides for use in the United States without consulting with the the U.S. Fish and Wildlife Service regarding potential impacts on tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly and their habitats.  All of these species are listed as either threatened or endangered under the Endangered Species Act.

Although CBD and EPA filed a joint motion for entry of stipulated injunction in January 2010, because defendant-intervenors had opposed the stipulation, final approval of the stipulated injunction was delayed until this past week.  As finally adopted, the stipulated injunction is comprised of four basic elements:  (1) a schedule for EPA to complete its "effects determination" for certain identified pesticides; (2) a general prohibition on the use of certain pesticides within and around the habitat of the 11 listed species; (3) the distribution of a bilingual notification brochure warning that certain pesticides may harm wildlife or their habitat; and (4) a similarly worded shelf-tag for certain pesticide containing products.  With respect to the prohibition on use, the stipulated injunction provides a list of exemptions for common household uses, such as spraying potted plants or controlling subterranean termites.         

CBD had obtained a similar stipulated injunction from the EPA in 2005 as a result of litigation concerning the California Red-legged frog and EPA's previous registration of 66 pesticides. 

 

Federal District Court Issues Key Findings and Conclusions in Bay-Delta Salmon Case

On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

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EPA Ordered to Consult with NMFS Regarding Water Quality Exemptions for Salmon Farms

Southern Resident Killer Whale BreachingOn April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

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Fifth Circuit Rejects Claim that Failure to Analyze Potential Future Phases of an Action as Interrelated Actions, Cumulative Effects, or Indirect Effects Violates the Endangered Species Act

The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (“ESA”) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (“STB”) and the Fish and Wildlife Service (“Service”) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of “Phase One” in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an “interrelated action” to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.
 

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Violation of Endangered Species Act Results in Jail Time and Probation

Two men were sentenced in federal court last week after admitting to the 2007 slaughter of over 100 federally endangered Indiana bats in Kentucky.  In light of the brutality of the attacks, one man received 3 years probation, while the second man, who was involved in two separate attacks on the endangered bat, was sentenced to eight months in federal prison.  

Both men pleaded guilty to violating the take prohibition in the federal Endangered Species Act ("ESA"), which provides for a maximum criminal penalty of $50,000 or one year in prison, or both.  While the criminal penalties provision of the ESA has been around since the adoption of the ESA, it is not common for the federal government to pursue criminal penalties.  Instead, the majority of take violations are pursued under either the ESA's civil penalties provision or citizen suit provision.  These convictions, however, are a stark reminder of the potentially significant consequence for those who dismiss the prohibitions in the ESA.   

Federal and state agencies attribute the convictions to an anonymous tip. 

Court Rejects Use of Habitat Surrogate In Everglades Project Biological Opinion

In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the “fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take.” 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

Forest Service Evaluation of Grazing Impacts on Sage Grouse Invalidated by Ninth Circuit

Finding its methodology “fatally flawed,” the Ninth Circuit Court of Appeals concluded that the Forest Service violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”) in its approval of grazing allotments in Southeast Montana.  In Native Ecosystems Council v. Tidwell (PDF), the court determined that the Forest Service’s use of a “habitat” proxy to evaluate impacts to the sage grouse was arbitrary and capricious without considering evidence concerning the sage grouse population. The court did not consider the recent determination by the Fish and Wildlife Service that the listing of the sage grouse under the Endangered Species Act is “warranted.” Nevertheless, the decision is evidence of the potential for future conflicts between the conservation of the sage grouse and economic activities on public lands in the West. The decision is another example of the reluctance of the Ninth Circuit to defer to agency decisions on biological issues.

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Court Holds that Federal Agencies Acted Illegally by Implementing Biological Opinion and Reasonable and Prudent Alternatives without Complying with NEPA

The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009.  In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species.  For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species.  Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.

Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA.  The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.