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

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

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

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

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

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On June 30, 2011, the U.S. Senate confirmed Dan Ashe as Director of the U.S. Fish and Wildlife Service.  Ashe has held various positions with the Service over the past 15 years.  His immediate predecessor was Rowan Gould, who served as Acting Director beginning in February 2010 when then-Director Sam Hamilton passed away.  Though the position requires Senate confirmation, it has frequently been filled by career Service employees.  The Department of the Interior announced Ashe's confirmation in a press release, available here.

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On May 17, 2011, the U.S. District Court for the District of Columbia stayed its approval of a proposed settlement agreement (Agreement) aimed at expediting findings related to petitions to list 251 species. The Center for Biological Diversity (Center) opposed approval of the Agreement after being left out of the negotiation process.

As we previously reported, plaintiff WildEarth Guardians (Guardians) entered into the Agreement with the Secretary of the Interior and the U.S. Fish and Wildlife Service (Service), under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (pdf) in the Federal Register.  In return, Guardians agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program. Guardians also agreed to limit the amount of petitions it submits each fiscal year for the duration of the Agreement.

The Center expressed frustration that it only learned of the negotiations for the first time upon the parties’ filing of their joint motion for approval of the Agreement. The Center argues that the obligations imposed on the Service are unenforceable, and it characterizes the Agreement as illusory. The Center also claims that the Agreement is contrary to public policy because: (1) it undermines other purposes of the Listing Program; and (2) its overall effect would be to stymie petitions and lawsuits to enforce the ESA’s statutory deadlines, in contravention of the ESA, which expressly provides citizens with the right to petition for species listings and to seek the Service’s action on such petitions within the ESA’s statutory deadlines.

The court has scheduled a Status Conference for June 20, 2011, at which time it will review the progress made towards crafting a new agreement, as well as address the need to continue the litigation.

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The U.S. Fish and Wildlife Service (Service) announced that it has developed a six-year work plan that would allow the Service to systematically review and address the needs of more than 250 species currently listed as candidate species for protection under the Endangered Species Act (ESA). The work plan is part of a settlement agreement (PDF) between the Service and WildEarth Guardians (WildEarth) that will be filed in a consolidated case in the U.S. District Court for the District of Columbia.

While the Candidate List was envisioned as an administrative tool that would identify species for which the Service would shortly make listing decisions, the dramatic increase of listing petitions and lawsuits has led to a backlog of species on the list. The Service has received petitions to list more than 1,230 species in the last four years – nearly as many petitions as the amount of species listed under the ESA in the previous 30 years. The work plan provides a schedule for making listing determinations for current candidates species, and it includes some species that have been petitioned for protection under the ESA.

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The U.S. Fish and Wildlife Service (Service) recently announced that it was opening a 30-day public comment period on updated information for the draft revised recovery plan for the threatened northern spotted owl (Strix occidentalis caurina). This announcement follows the completion of a new computerized modeling tool developed for assessing spotted owl habitat quality and population dynamics. It also predicts the effectiveness of different conservation measures.

The new modeling tool synthesizes more than 20 years of demographic data regarding the spotted owl, including information from regional experts throughout the spotted owl’s range in Washington, Oregon, and California. It uses this information to provide recovery partners with the most accurate rangewide picture of where spotted owls nest and roost and where they are likely to do so in the future. The result is that recovery partners can see what areas are most important to the spotted owl’s continued survival and recovery. The modeling tool will also allow recovery partners and land managers to evaluate the long-term implications of specific recovery actions.

The draft revised recovery plan was initially released in September 2010. The modeling tool was incomplete during the original 90-day comment period, which elicited great concern and criticism that the draft plan did not rely on the best available science. The original Appendix C on habitat modeling contained initial maps showing suitable spotted owl habitat at different levels of quality. While this information served as the underlying data allowing for evaluation of different conservation measures, the updated Appendix C includes more information no how the modeling tool allows the Service to compare potential spotted owl population responses to different habitat management scenarios and conservation measures.

The 30-day comment period on the new information ends on May 23, 2011. Pursuant to a federal court order resulting from previous litigation over the recovery plan, the Service must complete its final revised recovery plan by June 1, 2011. This has created concerns that the Service will not have adequate time to respond to any comments submitted during the review period.

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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 13, 2011, it was reported that the U.S. Fish and Wildlife Service (“Service”) is authorized to prepare a new proposed rule and proposed critical habitat for the Gunnison sage-grouse (Centrocercus minimus). This news follows a September 27, 2010 decision (PDF) by the Service that, although the Gunnison sage-grouse warrants protection under the Endangered Species Act (“ESA”), protection would be delayed while the Service addressed the needs of other high priority species.

The Gunnison sage-grouse is a small ground bird with speckled plumage and an ornate mating ritual.  The historic distribution of the species included southwestern Colorado, southeastern Utah, northeastern Arizona, and northwestern New Mexico.  Today, there are approximately 5,000 breeding individuals in seven separate populations in southwestern Colorado and southeastern Utah.  The largest of those populations consists of about 4,000 birds inhabiting the Gunnison Basin.  Predation and the fragmentation and loss of habitat due to human activity are among the primary factors contributing to the bird’s declining populations.

If the Service decides to list the Gunnison sage-grouse, it will mark the end of a decade-long effort to list the species under the ESA. The Gunnison sage-grouse was originally placed on the candidate species list in January 2000 shortly before the Service received a petition (PDF) to list the species. Now that resources have become available and it has approval, the Service will prepare a proposed rule using data about the species and its habitat.  After publication of the proposed rule in the Federal Register and a 60-day public comment period, the Service will have one year to make a final decision whether to list the Gunnison sage-grouse as threatened or endangered.  It was reported that the Service would designate critical habitat at the same time it issued a listing decision.

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The Fish and Wildlife Service (“Service”) announced (PDF) that despite a finding (PDF) that sufficient scientific and commercial data exist to warrant protecting the Pacific walrus under the Endangered Species Act ("ESA"), an official rulemaking to propose that protection will be postponed because of the need to address “other higher priority species.”  Instead, the Service will review the walrus’ status as a candidate species annually.  The finding confirms claims made by the federal Marine Mammal Commission and a petition by the Center for Biological Diversity that the walrus is threatened by the loss of sea ice in its arctic habitat due to climate change (see earlier post).  Although the Pacific walrus will not receive protection under the ESA, the species is currently protected by the Marine Mammal Protection Act of 1972, which affords protections similar to those under the ESA and includes prohibitions on the harvest, import, export, and interstate commerce of the walrus or walrus products.

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On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as endangered.  Center for Biological Diversity v. Salazar, No. 1:08-cv-2133 (D.D.C.).  The federal government's brief attached an explanation and analysis prepared by FWS.  In its memorandum, FWS said the ESA does not provide any quantitative measures for distinguishing between species that are threatened or endangered but FWS has generally relied on four criteria to determine whether a species qualifies as endangered.  The four criteria are: (1) the species is facing a catastrophic threat with an imminent and certain risk of extinction, (2) due to limited range or population size the species is vulnerable to extinction, (3) a species that was previously widespread has been reduced to critically low numbers or restricted ranges, and (4) a species that is still widespread has suffered ongoing reductions in its numbers or range as a result of factors that have not been abated.  FWS then stated the guidance provided by these four factors is not binding because listing determinations also require consideration of individual species characteristics.  As to the polar bear, FWS' memorandum argued it is not endangered because it is not currently on the brink of extinction since its present condition is stable or increasing in most of the populations for which data is available, and declining slightly in a minority of such populations.  "Overall, both its range and its numbers were relatively constant.”  The Plaintiffs have until January 18 to file a responsive brief and the court will decide the case thereafter.

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Aiming to restore federally-listed species, whose long-term viabilities in the Florida Keys are currently threatened by predation from non-native species and human-subsidized populations of native predators, the Fish and Wildlife Service has prepared a draft Integrated Predator Management Plan/Environmental Assessment (“Plan/EA”) (PDF), which it made available for public comment today on its website.  The Service claims that predation by the domestic cat and other exotic non-native species has impacted populations of natives species in the Florida Keys Wildlife Refuges Complex. The Refuges Complex, which includes four separate refuges, provides habitat for more than 30 threatened and endangered species including the Key deer, Lower Keys marsh rabbit, and Key Largo woodrat.  Although the Plan/EA has garnered opposition from animal rights activists, refuge biologists quoted in the The Miami Herald say they are “just trying to even the natural playing field,” where the natural food chain has been upset by real estate development in the Florida Keys and the abandonment of unwanted pets. 

The Plan/EA, prepared to comply with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and other federal laws and regulations, evaluates the environmental impacts of three alternative management actions for reducing predation on the listed species: (1) no action; (2) integrated predator management (the proposed action), which includes live trapping of cats and humane euthanizing of other predators; and (3) lethal control only.  Successfully implementing the proposed action, particularly in the National Key Deer Refuge, which includes public lands intermixed with private residential and commercial areas, will require a collaborative public and private effort on adjacent lands by a diversity of land managers and stakeholders, including Monroe County, Florida Fish and Wildlife Conservation Commission, animal control service providers, animal advocacy groups, wildlife rescuers, environmental organizations, private landowners, and responsible pet owners. 

The Service has invited public comments on the Plan/EA through February 3, 2011. Written comments may be submitted by email to keydeer@dws.gov, fax to (305) 872-3675, or regular mail to Anne Morkill, Florida Keys National Wildlife Refuge, 28950 Watson Blvd., Big Pine Key, Florida 33043.

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On November 2, 2010, the U.S. Fish and Wildlife Service (FWS) listed (PDF) the Georgia pigtoe mussel, the interrupted rocksnail and the rough hornsnail as endangered under the Endangered Species Act (ESA) and designated 160 miles of stream and river channels as critical habitat for the three species in Georgia, Alabama and Tennessee. The listing followed FWS’s determination that the species have experienced a significant curtailment in their freshwater habitats. FWS attributes the habitat loss to fragmentation and isolation of free-flowing rivers and tributaries, as well as increased vulnerability to water quality and habitat degradation.

FWS also proposed protection (PDF) for the rayed bean and snuffbox mussels, seeking comments from the scientific community and the public prior to finalizing the listing rule. Mississippi’s Bay Springs salamander, however, was denied protection (PDF) based on FWS’s determination that it is extinct. These species, as well as the pigtoe mussel, interrupted rocksnail and the rough hornsnail, are threatened by degradation of freshwater habitat due to dams, urban sprawl, and industrial and agricultural pollution.

Litigation surrounding the species may have prompted FWS’s actions; last February, the Center for Biological Diversity filed suit against FWS for failure to protect over 90 species, including the Bay Springs salamander. Critics assert that, despite its belief that the salamander is extinct, FWS should have listed the species to stimulate further surveys of the population since it is possible that some individuals remain.

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On October 18, 2010, Idaho Governor Butch Otter announced the State of Idaho would no longer manage wolves as a designated agent under the Endangered Species Act.  According to the Idaho Department of Fish and Game website, a January 2006 agreement between Idaho and the U.S. Department of the Interior designated the State as an agent for day-to-day wolf management for the Fish and Wildlife Service, but efforts to renew the agreement were unsuccessful.  In response to the Governor's action, the Service issued a press release (pdf) indicating it would once again be the lead agency for wolf management in Idaho.  Governor Otter registered his displeasure with the situation by issuing this statement.

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The Service released a draft Revised Recovery Plan (PDF) for the northern spotted owl dated September 8, 2010.  The species, which inhabits portions of California, Oregon, and Washington, was listed as threatened in 1990.  A chronology of regulatory actions taken by the Service with respect to the northern spotted owl is available here (PDF).  According to a news release (PDF) issued by the Service, "[t]he draft revision is not an overhaul of the existing recovery plan but includes significant refinements based on scientific and technological advancements, especially related to evaluating suitable habitat."  The Service has established a 60-day public review period for the draft Plan.  The prior Recovery Plan was completed in 2008.

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On June 24, 2010, the Fish & Wildlife Service issued a Notice of Violation to the City of Birmingham, Alabama for allegedly killing an estimated 11,700 endangered watercress darters, and injuring approximately 8,900 others, in a single incident in 2008.  The Service is seeking $2,975,000 in civil penalties as a result of the incident.

The watercress darter is found in only five spring brooks and spring pools in Birmingham, Alabama.  In September 2008, a Birmingham maintenance crew allegedly breached an earthen dam and drained a spring pool, stranding and killing thousands of watercress darters.  The incident resulted in the loss of more than half of the largest known population of the species. 

The City of Birmingham has 45 days to either pay the proposed civil penalty, initiate informal negotiations with the Service, or file a Petition for Relief in accordance with the Service's regulations. 

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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.

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The Fish and Wildlife Service announced the issuance of a comprehensive set of recommended guidelines (PDF) on how to minimize the impact of land-based wind turbines on wildlife and their habitat.  The Service transmitted these recommendations to Secretary of the Interior, Ken Salazar.  Secretary Salazar will review the recommendations and consider them as he directs the Service to develop guidelines for wind turbines.

The guidelines are founded on a tiered approach for assessing potential impacts to wildlife and their habitats.  There are five tiers, and each tier includes a set of questions to help the developer identify potential problems associated with each phase of a project. The goal of the guidelines is to provide a consistent approach to assessing impacts to wildlife and habitats, while still providing flexibility to deal with the unique circumstances of individual projects. 

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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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The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

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For the third time in nine years, the Fish and Wildlife Service has revised the designation of critical habitat for the California red-legged frog. The new designation includes 1.6 million acres in 20 counties in California. 75 Fed. Reg. 12,816 (Mar. 17, 2010) (PDF). The revised designation increases the amount of critical habitat by over one million acres from the 2006 critical habitat designation (PDF). The revised designation represents a decrease of approximately 2.4 million acres from the 2001 designation (PDF). The Service revised the prior designations in response to litigation brought by the building industry and by environmental groups. The red-legged frog is widely known as the protagonist in Mark Twain’s The Celebrated Jumping Frog of Calaveras County. The designated critical habitat includes land in the Sierra foothills, the Sacramento and San Joaquin Valleys, the Bay Area, the Central Coast and Southern California.

The revised designation reflects a continuation of policies adopted by the Clinton Administration and the Bush Administration to exclude from critical habitat certain areas within approved habitat conservation plans (“HCPs”). The critical habitat designation excludes areas covered by three HCPs: Bonny Doon, East Contra Costa and Western Riverside. Reflecting a nuanced changed in Service policy, the designation also excludes certain lands managed under other state or local conservation programs. The Service concluded that “judicious exclusion of specific areas of non-federally owned land from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone.”

The Service also excluded several national defense installations from the designation where the military installations had adopted an integrated national resource management plan under the Sikes Act. Congress amended the Endangered Species Act in 2003 to authorize exclusions of defense installations subject to Sikes Act integrated natural resource management plans. 16 U.S.C.§ 1533(a)(3)(B)(i).

The Service estimated the total economic cost of protecting the red-legged to be approximately $1.34 billion and estimated the incremental economic cost of the revised critical habitat designation to be approximately $500 million.
 

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co-authored by Robert Thornton

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and fragmentation of sagebrush habitats due to conversion for agriculture, urbanization, infrastructure, grazing, and nonrenewable and renewable energy development.  If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction.  The Service plans "to continue to work cooperatively with private landowners to conserve the candidates species.  This includes financial and technical assistance, and the ability to develop conservation agreements that provide regulatory assurances to landowners who take actions to benefit the species." 

The Bureau of Land Management ("BLM"), which manages the majority of greater sage grouse habitat, has issued guidance (PDF) to address actions in "priority" sage grouse habitat.  For example:

• BLM will re-route proposed transmission projects to avoid priority habitat;
• For new oil shale lease applications, BLM may impose lease stipulations and project conditions of approval that designate avoidance areas;
• New right-of-way applications for wind and solar energy development may be denied or terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by analysis under the National Environmental Policy Act. 

BLM has also issued a FAQ. 

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As reported in The Daily News Online, the Fish and Wildlife Service will be holding a public meeting on Wednesday, March 3, 2010 at the Water Resources Education Center in Vancouver, Washington to inform the public and address questions on its proposal to expand critical habitat (PDF) for the threatened bull trout.  For more information on the proposed expansion, see the previous post Fish and Wildlife Service Proposes Revision of Critical Habitat for Bull Trout. 

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In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the listing of the DPS of the coastal cutthroat trout was not warranted. 

The Service first published a notice of withdrawal (PDF) of proposed listing for the DPS of the coastal cutthroat trout in 2002.  However, after a group of environmental organizations challenged the Service's determination in federal court, the Ninth Circuit found that the Service failed to properly consider whether the estuary and other marine areas constitute a significant portion of the range of the DPS, and therefore ordered the Service to reconsider the withdrawal determination. 

In the notice published late last week, the Service again withdrew the proposed rule to list the DPS of the coastal cutthroat trout, stating:

the threats to coastal cutthroat trout in the marine and estuarine areas of its range within the DPS, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are not likely to endanger the species now or in the foreseeable future throughout this portion of its range. 

It is unclear whether this decision will once more be the subject of litigation.

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As discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on the greater sage grouse by February 26, 2010.  Due to the death of the Service's Director, Sam Hamilton, the Service requested an extension (PDF) until March 5, 2010 to submit its new finding.  The finding to list the greater sage grouse could have implications for those in the oil and gas, wind energy and livestock industries, making their business more difficult across much of the West.

While half of the North American population of the greater sage grouse is believed to be in Wyoming, it also inhabits parts of California.  According to the California Department of Fish and Game, the sage grouse  "is a permanent resident in northeastern California, ranging from the Oregon border along the east side of the Cascade Range and Sierra Nevada to northern Inyo County.  Lassen and Mono counties have the most stable populations."

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Rowan Gould, the deputy director of operations, was named as acting director of the U.S. Fish and Wildlife Service following the death of Sam Hamilton, who died on February, 20, 2010.  Gould previously served as acting director from January 2009 until August 2009, when Hamilton was confirmed. 

Gould started his career with the Fish & Wildlife Service as a research microbiologist at the Seattle National Research Center in 1976.  Gould has served in many research positions as well as Regional Director of the Alaska Region, Deputy Assistant Director for Fisheries in Washington, D.C., and Deputy Regional Director for the Service’s Pacific Region, and as Deputy Director of the Fish & Wildlife Service. 

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On February 11, 2010, the Fish and Wildlife Service reported that it will not be designating critical habitat for the Florida panther. This announcement comes in response to petitions submitted to the Service by several environmental groups including the Sierra Club and the Center for Biological Diversity requesting designation of 3 million acres of land in south Florida as critical panther habitat.

The Service determined that critical habitat designation is not in the best interest of the Florida panther at this time but retained discretion to designate habitat at a later time. In lieu of designating critical habitat, the Service plans to implement a series of habitat conservation projects outlined in its Florida Panther Recovery Plan (PDF), which includes conservation efforts proposed jointly by environmental organizations and landowners.

In a statement (PDF) issued by the Service, the Service explained that:

A public-private partnership approach is essential for recovery of the Florida panther since so much of the panther’s habitat is privately owned. A critical habitat designation so closely following the finalization of the Florida Panther Recovery Plan would possibly undermine the long-term strategy outlined in the plan to constructively engage private landowners; State, Federal, and local agencies; and other interested groups and members of the public. This dialogue is a key part of addressing the human dimension aspects of panther recovery.

While some environmental groups support the Service’s approach to protecting the panther, which includes establishment of conservation banks that protect large parcels of habitat and implementation of wildlife crossings to help panthers safely cross roads, others do not think the Service’s plan goes far enough. On February 18, 2010, five environmental groups, including the Sierra Club, filed a lawsuit (PDF) against the government in federal court claiming that the Service has failed to protect the Florida panthers as required by the Endangered Species Act. The lawsuit requests the court to remand the matter back to the Service and to order the Service to undertake prompt rulemaking in order to designate 3 million acres of south Florida land and additional land to the north as critical habitat.

The Florida panther has been a federally protected endangered subspecies since 1967. Today’s population is estimated at around 100 panthers. They occur primarily in southwest Florida.

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On January 13, 2010, the Fish and Wildlife Service proposed to revise its 2005 designation of critical habitat for the bull trout (Salvelinus confluentus), a species that has been protected under the Endangered Species Act (“ESA”) since it was listed as threatened in 1999. 

The proposed rule (PDF) represents a dramatic increase in critical habitat from that currently designated under the 2005 rule.  The rule as revised includes approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada, which is a 79% increase in total miles of streams and 74% increase in total acres of lakes and reservoirs designated as critical habitat for the bull trout (see the Service's comparison (PDF) of area 2005 critical habitat to area proposed).

The proposed revision comes as the result of a 2006 Federal lawsuit in the U.S. District Court for the District of Oregon filed by the Alliance for the Wild Rockies and Friends of the Wild Swan, alleging that the Service failed to designate adequate critical habitat and unlawfully excluded areas from the final designation.  The Service notified the court in March 2009 that it would seek a remand of the 2005 final rule based on an Investigative Report by the Department of the Interior Inspector General that found a former Department of the Interior political appointee had interfered with the designation by directing large areas to be excluded from what had been proposed and by not allowing the inclusion of any areas unless there was absolute certainty that bull trout were present.

The proposed revision is different from the 2005 final designation in that the Service is not excluding any areas that have been determined to be essential to the conservation of the species. This translates into the following changes to the rule:

• 929 miles (about 4% of the total designation) of unoccupied habitat now designated as critical habitat whereas no unoccupied habitat was included in the 2005 designation;
• 165.9 miles of streams now designated as critical habitat in the Jarbidge River basin where as no critical habitat was previously designated in the Jarbidge River basin;
• no automatic exclusions for Federal lands with management plans that were previously excluded from critical habitat designation under section 4(b)(2) of the ESA; and,
• one additional Primary Constituent Element related to the presence of nonnative fish that may prey on, compete with, or inbreed with, bull trout.

The Service estimates that the revised habitat designation will cost an additional $5 to $7 million per year over the next 20 years from increased administrative costs. Comments on the proposed critical habitat revision and draft economic analysis will be accepted by the Service until March 15, 2010.

More information can be found on the Service's bull trout page. 

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