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

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking Democrat on the Committee on Natural Resources, expresses his "concerns that this policy has the potential to undermine several key provisions of the ESA by setting the bar for listing declining species at much too high a threshold."  So high, he argues, that "the bald eagle never would have been listed as an endangered species in the lower 48 States" because healthy populations of the bald eagle lived in Alaska "[e]ven during the worst era of DDT pesticide usage . . . ."

Markey also criticized the draft policy for ignoring "Congress' intent regarding the purpose of the ESA by refusing to consider the historic distribution of a species when making listing decisions about whether a species is in danger of extinction in a significant portion of its range."

Had such a policy been in place in the 1970s, Markey claims, "Americans would have had to travel to the most remote parts of Alaska to view species like the bald eagle, grizzly bear, or the gray wolf."  According to Markey, in passing the ESA, Congress did not sanction such a "living museum approach" to protect imperiled wildlife, but instead sought to protect ecosystems and restore species to their historic ranges.

The key provisions in the ESA provide that "'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . [,]" and "'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

But the ESA itself does not include a definition of "significant portion" of a plant or animal's range.

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit consideration of a species' status to the range used by a species at the time the listing decision is being made; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

According to Markey, under the first aspect of the draft policy, "the FWS would only protect an imperiled animal or plant species when the decline within a significant portion of that species' geographic range implicates the 'viability' of the species as a whole.  In other words, the only parts of a species' range which matter are those portions that, if lost, would lead to the global extinction of that species."

With respect to the second aspect of the draft policy, Markey claims it "could make it even more tempting for future political appointees within the Department of Interior, as well as some members of Congress, to meddle with or defund the listing process because any delay in listing would invariably shrink the geographic range that a declining species currently occupies."

Markey argues that to be consistent with the ESA, Congressional intent, and the legislative history of the ESA, the Fish and Wildlife Service must instead develop and use "a precautionary, science-based standard for deciding when it is appropriate to protect a species under the ESA[,] [a]nd . . . must also devise a balanced, science-based approach for considering the historic range of declining species when making listing decisions as opposed to its [proposed] categorical approach where the historic range of any . . . species is always ignored."

Currently the 60-day comment period on the draft policy ends on February 7, 2012. 

Several environmental organizations have requested that the comment period be extended, but with the deadline to comment just days away, the Services have not indicated that they will issue an extension.

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Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA).  The species was listed in 1967 under the predecessor to the ESA.  The final rule delisting the gray wolf is available here (pdf).  The Service released the proposed rule (pdf) on May 5, 2011.  The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in Michigan, and 782 wolves in Wisconsin.

Adult gray wolves range from 40 to 175 pounds and prey upon medium and large mammals, including deer, moose, elk, caribou as well as domestic animals, including horses and cattle.  The decision to delist the speceis in the Great Lakes region drew praise from State officials in the region, farmers, and some conservation and environmental advocacy groups, but it has been criticized as premature by other environmental advocacy groups.

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Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit the "range" to the range currently used by a species during any of its life stages; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

The draft policy interpretation has already drawn harsh criticism from the Center for Biological Diversity, which calls the proposal a "recipe for extinction."  By defining significance of a portion of a species' range in terms of a threat to the entire species, not just to the species found in the limited portion of its range, the Services may list fewer species and delist more than they would if "significant" was defined without reference to the entire species.  And by limiting "range" to the current range, a species that has suffered severe declines in historic range, but which is flourishing in its current range, may not qualify for listing and protection under the ESA.

In a Questions and Answers (PDF), the Services explain that while a species will not be listed solely on the basis of lost historical range, "the causes and consequences of loss of historical range on the current and future viability of the species must be considered and are an important component of determining whether a species is currently threatened or endangered."  But this has not mollified critics.

In contrast, landowners may find cause for concern because, under the draft policy, if a species is found to be endangered or threatened only within a significant portion of its range, then under the proposed interpretation the entire species would be listed, and the ESA's corresponding protections would apply throughout the species' entire range.  Thus, a species may be listed in areas where it is currently thriving, resulting in unnecessary and costly over regulation in some areas.

Although styled as a "draft policy," it is essentially a proposed rulemaking because it is the Services' "intent to publish a final policy . . . that will be accorded deference by the federal courts."  Clearly, the Services hope the new policy interpretation will eventually end claims brought in litigation over listing decisions based on past interpretations of "significant portion of its range" in the ESA's definitions of "endangered species" and "threatened species."  However, by defining "significant portion of its range" with reference to the range's importance to the species, not the geographic extent of the range, the draft policy interpretation would appear to be at odds with the plain meaning of the statutory text.

Indeed, in response to litigation over the meaning of the phrase, on March 16, 2007, the Solicitor of the Department of the Interior issued a formal opinion on the meaning of "significant portion of its range" (the so-called M-Opinion).  However, the courts have since rejected aspects of the interpretation in the M-Opinion as applied by the Fish and Wildlife Service, and the DOI withdrew it on May 4, 2011.

The comment period is open for 60 days.  Until the policy is formally adopted, the Services intend to use the draft policy as guidance in their respective listing decisions.

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

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

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

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

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

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In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied from the criteria in the adopted recovery plan.

The court rejected the Service’s argument that the recovery plan merely provided guidance and that the Service could delist a species based on the factors for listing and delisting in section 4(a) of the ESA without first amending the recovery plan. Recovery plans are often ignored by the regulated community. This decision is a reminder that recovery plans have real world consequences.

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The United States Fish & Wildlife Service (“Service”) has reached an agreement with the majority of the plaintiffs, including the Defenders of Wildlife, the Greater Yellowstone Coalition, and eight other conservation organizations, to settle ongoing litigation over a Federal District Court’s 2010 decision (pdf) to reinstate Endangered Species Act (“ESA”) protections for the Rocky Mountain gray wolf.

The proposed settlement allows the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to recover the species in other parts of the Rocky Mountains. Federal protections would remain in place in Wyoming and portions of Oregon, Washington and Utah. Separate negotiations are ongoing between the Service and the State of Wyoming regarding a state management plan that could facilitate a final delisting for the species in that state.

According to Department of the Interior Deputy Secretary David Hayes, “[f]or too long, management of wolves in this country has been caught up in controversy and litigation instead of rooted in science where it belongs. This proposed settlement provides a path forward to recognize the successful recovery of the gray wolf in the northern Rocky Mountains and to return its management to states and tribes."

The settlement must be approved by U.S. District Judge Donald Molloy, whose August 2010 decision addressed whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states. To address this issue, the settlement provides that the Service would agree to address the delisting of wolves in the region as a distinct population segment, rather than on a state-by-state basis.

The proposed settlement would also be terminated if Congress passes its own wolf delisting language, as has been proposed in both House and Senate spending bills.

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On March 2, 2011, the U.S. Fish and Wildlife Service (Service) completed its formal review of the status of the eastern cougar (Felis concolor couguar) and concluded that the subspecies is extinct.  The existence of the subspecies, listed since 1973, has long been questioned.  Dr. Mark McCollough, the Service's lead scientist for subspecies, noted that the eastern cougar has likely been extinct since the 1930s.  Though sightings had been reported, the Service believes they are not of the eastern cougar.  Rather, the Service believes that the sightings were actually of South American subspecies held in captivity and escaped or released into the wild, or of the western United States subspecies that had migrated eastward.  The Service will now prepare a proposal to remove the eastern cougar from the endangered species list.

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On January 18, 2011, after slightly more than a quarter-century of protection, the U.S. Fish & Wildlife Service ("Service") announced that it will be removing the Maguire daisy (Erigeron maguirei) from the list of threatened and endangered species.  The Service recently concluded that the daisy population, which in 1985 consisted of only seven known plants, is presently comprised of over 162,000 individual plants, and "no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973."  The Maguire daisy is just the 21st species that has been delisted based upon a finding of recovery. 

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Introduced by eight U.S. Representatives, HR 6485 (.pdf) provides that the inclusion of the gray wolf on any list of endangered or threatened species under Section 4 of the Endangered Species Act (ESA) will have no force or effect. Titled the State Sovereignty Wildlife Management Act, the bill is one of several (see SB 3825 (.pdf) and SB 3864 (.pdf)) that has been introduced over the past few months with the goal of returning wolf management to the states. The proposed legislation is meant to improve the balance of both wolf and prey populations by allowing individual states to develop management plans that address their unique needs.

The recent bills, including HR 6485, have been proposed in response to a federal judge’s decision in August that resumed ESA protection for wolves in Montana and Idaho. In Defenders of Wildlife v. Salazar (.pdf), the issue before the court was whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states.

The court’s decision has frustrated Montana’s and Idaho’s efforts to manage and control their growing wolf populations. According to the Helena Independent Record, the population of gray wolves in the Northern Rockies is more than 1700, which far exceeds the reintroduction goal of 300 when the wolf was originally listed under the ESA. Thus, according to its sponsors, the legislation will enable the states to control the wolf populations’ while limiting their effect on big game populations and local livestock.

Certain sponsors of the bill are hopeful about the possibility of attaching the bill in the lame-duck session, possibly as part of an omnibus spending bill or a continuing resolution. Others are unsure whether it will have an opportunity to pass, given that earlier wolf bills have had little success.
 

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The Fish and Wildlife Service announced on August 19, 2010 that it will not be removing the Stephens’ kangaroo rat (Dipodomys stephensi) from the Federal List of Endangered and Threatened Wildlife. This decision constitutes the Service’s 12-month finding (PDF) on a petition submitted by the Riverside County Farm Bureau in 2002 to delist the species as endangered.

The Stephens' kangaroo rat is a burrow-dwelling nocturnal mammal that inhabits arid and grassy habitats in western North America.  It is known to occur at lower elevations of the dry inland valleys west of the Peninsular Ranges of southern California.  At the time of listing in 1988, the species’ geographic range encompassed the Perris, San Jacinto, and Temecula Valleys in western Riverside County, and the San Luis Rey Valley in San Diego County.  Since listing, additional populations have been found near the Silverado Conservation Bank in western Riverside County and Rancho Guejito and Ramona Grasslands in San Diego County.

According to the Service, delisting is not warranted at this time because the criteria provided in the draft recovery plan (PDF) for delisting the species have not been met.  The criteria includes (1) establishment of a minimum of five reserves, one of which is ecosystem-based, in western Riverside County that encompass at least 16,500 acres of occupied habitat that are permanently protected, funded, and managed; and (2) establishment of two ecosystem-based reserves in San Diego County, one in the Western Conservation Planning Area and one in the Central Conservation Planning Area, which are permanently protected, funded, and managed.

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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.

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On April 13, 2010, the Pacific Legal Foundation (PLF) filed a petition (PDF)  to remove the coastal California gnatcatcher, specifically, the subspecies Polioptila californica californica, from the Fish and Wildlife Service’s list of threatened species. Considerable controversy surrounded the 1993 listing and subsequent designation of critical habitat for the coastal California gnatcatcher because its range includes prime real estate and agricultural land in the southern California counties of Los Angeles, Orange, San Diego, Riverside, and San Bernardino.

In its petition, PLF argues, in essence, that scientific studies indicate that no such subspecies exists, i.e., there is no such thing as the “coastal California gnatcatcher.” PLF cites scientific studies published since the 1993 listing that undermine the original basis for the listing. The decision to list the gnatcatcher relied heavily on research published in the early 1990s indicating that the relatively small population of gnatcatchers in southern California formed a subspecies of the much larger population of California gnatcatchers that extends from Los Angeles to the southern end of Baja, Mexico. But studies based on genetic analysis and re-analysis of the original data set that led to the listing conclude that there is no biological basis for the P. c. californica taxonomic classification. If there is no such subspecies, then, according to PLF, the gnatcatcher is not threatened because the larger population inhabiting southern California and Baja, Mexico is not vulnerable to extinction in the near future.

If the Fish and Wildlife Service delists the gnatcatcher, the designation of nearly 200,000 acres of land as critical habitat will be withdrawn. Delisting, however, would not result in the removal of all regulatory protections for the gnatcatcher in southern California. Much of the coastal California gnatcatcher’s range is already subject to conservation under the terms of Habitat Conservation Plans that collectively cover millions of acres, and the gnatcatcher is also protected under the Migratory Bird Treaty Act. Accordingly, delisting may have little or no practical effect for many landowners and developers in the region.

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