Court Allows ESA Claims Involving Oversight of Pesticides to Move Forward

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293-JCS (pdf), plaintiffs alleged that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act by failing to initiate and reinitiate consultation with the National Marine Fisheries and U.S. Fish and Wildlife Service with respect to its ongoing oversight of 382 active pesticide ingredients.

As previously reported, the United States District Court for the Northern District of California granted EPA’s motions to dismiss for failure to state an affirmative “agency action” that would trigger section 7. The court allowed plaintiffs to amend their complaint to provide a comprehensive list of every affirmative act that allegedly required the duty to consult.

In their amended complaint, plaintiffs asserted among other things that EPA’s reregistration of pesticides constitutes an agency action. EPA moved to dismiss, and the court granted in part and denied in the part the motion. The court dismissed certain claims for lack of subject matter jurisdiction due to statute of limitation issues, and denied the motion to dismiss with respect to other claims, holding reregistration and ongoing discretionary control over certain pesticides was sufficient to constitute agency action under section 7.
 

U.S. Fish and Wildlife Service Withdraws Proposal to List North American Wolverine as Threatened

 The U.S. Fish and Wildlife Service (Service) announced today that it is withdrawing its proposal to list the North American wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act (ESA). The decision to withdraw the listing proposal followed the consensus recommendation of the Service’s three Regional Directors for the regions encompassing the wolverine’s known range in the contiguous United States – the Mountain Prairie, Pacific Northwest, and Pacific Southwest regions.

As we previously reported, the Regional Director of the Service’s Mountain Prairie region previously ordered the reversal of a recommendation to list the wolverine after concerns were raised about the reliability of data used for predicting impacts to the species as a result of climate change. That order reversed a previous recommendation to list the wolverine following issuance of a report by a panel of biologists in April 2014.

Ultimately, the Service found that climate change models are unable to reliably predict snowfall amounts and snow-cover persistence in wolverine denning locations, and evidence suggested that wolverine populations actually increased in the second half of the 20th century. The Service determined that the effects of climate change are not likely to place the species in danger of extinction now or in the foreseeable future, and thus the wolverine did not meet the ESA’s definition of a “threatened species.”

U.S. Fish and Wildlife Service Proposes Credit Program for At-Risk Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken prior to listing and apply those credits towards mitigation to offset impacts that would occur after the species is listed. For federal agencies, credits from prelisting conservation actions would be used to offset adverse effects of the agency’s proposed action.

To be eligible for credits, conservation actions must be part of a state-administered program for conservation of the species. The policy is intended to engage states in designing and implementing programs to encourage voluntary prelisting conservation actions. All actions to be credited must occur before the species is listed under the ESA, and they cannot be required pursuant to any federal, state, or local regulation.

According to the Service, the policy enables any harm to a listed species to be offset by benefits provided prior to the listing of the species. Additionally, prelisting conservation actions could be combined with additional mitigation to offset any harm to the species. The Service has yet to define the metrics for measuring either the harm or benefit to the species.

States may choose to work with the Service to administer the prelisting conservation programs. Under the policy, the Service will assist states as needed in developing conservation plans, and in overseeing implementation and operation of the voluntary actions.
 

U.S. Fish and Wildlife Service Downgrades Wood Stork From Endangered to Threatened

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) reclassifying the U.S. breeding population of the wood stork (Mycteria americana) from endangered to threatened.

According to the Service, when the wood stork was listed as endangered in 1984, the population was decreasing at a rate of five percent per year. The Service now reports that the U.S. breeding population has increased its number of nesting pairs, and has expanded its breeding range.

Wood storks use a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. The Service’s downlisting acknowledges the positive impact that collaborative conservation efforts for the species’ habitat have had on the status of the breeding population. For example, the Wetlands Reserve Program has restored more than 200,000 acres of wetlands in Florida and more than 115,000 acres in Alabama, Georgia and South Carolina.

U.S. Fish and Wildlife Service Considers Listing the Humboldt Marten

 The U.S. Fish and Wildlife Service (Service) recently announced that it will be conducting a 12-month status review for the Humboldt marten (Martes americana humboldtensis) to determine whether to list the species as threatened or endangered under the Endangered Species Act (ESA). The Service’s notice (pdf) requests information on the Humboldt marten, and notes the uncertainty surrounding the subspecies’ taxonomic classification. The classification of martens has evolved dramatically over the years, and ongoing genetic research indicates uncertainty in the classifications in the Pacific marten subspecies. The purpose of the 12-month status review is to conduct an evaluation of a distinct population segment (DPS) of Pacific martens to determine whether or not the marten population in coastal northern California and Oregon should receive ESA protection.

The Humboldt marten is a mid-sized carnivore in the weasel family. Individuals are about the size of a common house cat and have a long, slender body with relatively large rounded ears, a triangular face, short limbs, and a bushy tail. The range of the Humboldt marten has shrunk dramatically in recent decades due to the fur trade and habitat loss from logging. While martens are generally common in most of their range in North America, the Humboldt marten was thought to be extinct until an individual was sighted in 1996.

The Center for Biological Diversity and Environmental Protection Information Center originally submitted a petition to list the Humboldt marten on September 28, 2010. The Service published its 90-day finding on the petition on January 12, 2012, which concluded that the petition presented substantial scientific and commercial information indicating that listing may be warranted.

U.S. Fish and Wildlife Service Ordered to Complete Recovery Plan for Canada Lynx

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient in light of its statutory duty and its own internal guidelines setting forth a timetable for recovery planning.

In Friends of the Wild Swan v. Ashe, 2014 U.S. Dist. LEXIS 65378 (D. Mont. 2014), plaintiffs alleged that the Service had unreasonably delayed preparing a recovery plan for the Canada lynx and sought a court order compelling the Service to prepare a plan in accordance with a specific deadline. The Endangered Species Act (ESA) requires that the Service designate critical habitat for any species listed as threatened or endangered, concurrent with listing. Further, it requires the Service to develop and implement a recovery plan for any listed species, but, notably, it does not provide a timetable for doing so. The Service listed the Canada lynx as threatened under the ESA in 2000, but did not designate critical habitat at that time or develop a recovery plan. The Service contended that due to the species’ low priority and the Service’s limited resources, recovery planning could not be completed until publication of the final rule designating the lynx’s critical habitat, which according to the Service has been “dogged by litigation at every turn.”

After rejecting the Service’s challenge to plaintiffs’ standing, the court explained that because the ESA does not specify a standard of review, judicial review is conducted under the Administrative Procedure Act (APA), which permits a reviewing court to compel agency action that is “unreasonably delayed.” Further, because the ESA does not supply a timetable for preparation and implementation of a recovery plan, the court found that the Service’s delay in developing a recovery plan should be governed by the “rule of reason.”

Though not binding on the Service, the court used the Service’s own guidelines to evaluate the reasonableness of the Service’s delay. These guidelines provide that a recovery outline for a species be submitted to the Regional Office within 60 days of listing; that the outline be approved within 90 days of listing; that a draft recovery plan be prepared for public comments and peer review within 18 months of listing; and that a final recovery plan be issued within 30 months of listing. Based on these guidelines, a recovery plan for the Canada lynx should have been in place in September 2002.

The court dismissed the Service’s argument that development of a recovery plan is necessarily contingent on publication of a final rule designating critical habitat for the species, and that the delay is not unreasonable because the species is a low priority with a high potential for recovery and low degree of threat. It stated that under this approach a recovery plan for the lynx could potentially never be developed, and the Service “cannot delay its obligation indefinitely.”

The court also rejected the Service’s longstanding claim that it had limited financial resources to both finalize the species’ critical habitat and begin recovery planning, stating that such justification was no longer persuasive in light of the extended passage of time (over a decade). The court then found that as “the Service has repeatedly stated that it will initiate recovery planning for the lynx,” and that, based on its most recent self-declared timeline of initiating the recovery planning process by close of 2014, “requiring completion of recovery planning on its represented timeframe will not bias its ability to balance competing interests.” The court thus held that the Service was bound by a deadline for recovery planning “unless it finds and documents that such a plan will not promote conservation of the lynx.” The court ordered the Service to file a proposed schedule for completion of recovery planning within 30 days of its decision.

The court’s decision in this case is notable because it diverges from other district court decisions in the Ninth Circuit regarding the Service’s duty to prepare and implement recovery plans for listed species, which have generally shown considerable deference to the Service’s timetables for recovery planning. For example, in Conservation Northwest v. Kempthorne, 2007 U.S. Dist. LEXIS 46089 (W.D. Wash. 2007), the court held that it did not have jurisdiction to decide whether there was an unreasonable delay in implementation of the North Cascades Grizzly Bear Recovery Plan, originally issued in 1982 and revised in 1993, because the Service’s duty to implement all terms of a recovery plan in a “timely manner” is a discretionary one. In Center for Biological Diversity v. Bureau of Land Management, 2014 U.S. Dist. LEXIS 46994 (N.D. Cal. 2014), while the court held that the Service’s requirement to prepare a plan was mandatory, not discretionary, it also ultimately deferred to the Service’s timeline for preparing a recovery plan for the Peirson’s milk-vetch. The milk-vetch had been listed in 1998, but the Service did not anticipate finalizing a recovery plan until July 31, 2019. The court noted that it was concerned about the Service’s failure to issue a recovery plan for the species, but did not hold that the more than 20 year delay was unreasonable.

Natural Resources Committee Discusses Endangered Species Act Reform

Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.

As previously reported, an ESA Congressional working group released a final report stating that the ESA “is not working.” The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.

One of the bills discussed at the hearing, H.R. 4315, would require the Secretary of the Interior to publish the “best scientific and commercial data available” used to support a listing decision. Currently, not all data is released to the public, such as proprietary information. According to a report by Emily Yehle from E&E news, critics of the bill claim that the scope of its reach is too broad. For example, sometimes information is classified data from the U.S. Department of Defense. H.R. 4317, seeks to define the “best scientific and commercial data available” to include “all data submitted by a State, tribal, or county government.” Critics claim this bill would presume that data from a State, tribal, or county government is the “best” data available, thus negating the purpose of requiring use of the “best” available data – regardless of its source.

Additionally, H.R. 4316, would require the U.S. Fish and Wildlife Service to disclose the amount of funds expended in ESA-related lawsuits, the number of employees dedicated to litigation efforts, and any attorneys’ fees paid to successful litigants. H.R. 4318, would limit reimbursement of attorneys’ fees to $125 per hour.

U.S. Fish and Wildlife Service Announces Listing of Lesser Prairie-Chicken

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the lesser prairie-chicken. Over the past decade, a number of conservation programs have been implemented across the species’ five-state (Texas, New Mexico, Oklahoma, Kansas and Colorado) range, including the 2013 Western Association of Fish and Wildlife Agencies’ (WAFWA) Lesser Prairie-Chicken Range-Wide Conservation Plan. Collectively, these efforts are similar to a recovery plan. 

There had been some fear among landowners that the Service’s listing would have a severe adverse impact on the energy industry and private developers. The Service’s approach is anticipated to provide regulatory certainty for landowners and businesses enrolled in WAFWA’s range-wide conservation plan and the U.S. Department of Agriculture’s Lesser Prairie-Chicken Initiative. The special rule will allow for incidental take of the lesser prairie-chicken associated with: (1) activities conducted pursuant to WAFWA’s Lesser Prairie-Chicken Range Wide Conservation Plan; (2) conservation practices carried out in accordance with a conservation plan developed by the Natural Resources Conservation Service in connection with the Lesser Prairie-Chicken Initiative; and (3) the continuation of routine agricultural practices on existing cultivated lands.

The Service determined that listing critical habitat for the lesser prairie-chicken is prudent, but cannot be determined at this time. The Service has one year from the final listing determination to propose any critical habitat for the species.

Proposed Bill Seeks to Require Federal Agencies to Count Species on State, Tribal, and Private Lands before Listing the Species under the ESA

Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA.  Currently, the ESA does not include a specific requirement regarding how to account for a species’ population.  Rather, federal agencies are required to use the “best scientific and commercial data available” when determining whether a species is endangered or threatened.

According to a report by Jessica Estepa from E&E News, the legislation was introduced to address a specific issue with the Utah prairie dog (Cynomys parvidens), which is found in Rep. Stewart’s district.  The number of individuals found on state, tribal, and private lands – land that is currently not being considered by federal agencies when evaluating whether to list the prairie dog – could be in the thousands and may impact the determination of whether the species is on the path to recovery.

U.S. Fish and Wildlife Service Proposes Delisting Two Death Valley Plant Species

 The U.S. Fish and Wildlife Service (Service) recently issued (pdf) a proposed rule to remove Eureka Valley evening-primrose (Oenothera avita ssp. eurekensis) and Eureka dune grass (Swallenia alexandrae) from the federal list of endangered species. The Service’s proposed rule follows its 12-month finding on the Pacific Legal Foundation’s petition to delist the species.

Eureka Valley evening-primrose and Eureka dune grass are endemic to three dune systems in the Eureka Valley, located in Inyo County, California. Eureka Valley is managed by the National Park Service (Park Service) because it is located within federally designated wilderness areas of Death Valley National Park.

At the time of listing, the primary threats to Eureka Valley evening-primrose and Eureka dune grass were identified as off-highway vehicle activity at the Eureka dunes, as well as impacts from camping associated with such off-highway activities. The Service determined that these threats have been ameliorated by Bureau of Land Management (BLM) and the Park Service actions, including habitat protections and ongoing management of off-highway activities. According to the Service, remaining potential threats, including predation, stochastic events, climate change, and competition with Russian thistle, may be causing some stress to certain populations of the species, but these potential impacts do not rise to a level that warrants listing either species as threatened.

The two species were originally listed as endangered on April 26, 1978. On May 18, 2010, Pacific Legal Foundation filed a petition requesting that the Service delist Eureka Valley evening-primrose and Eureka dune grass, based on the Service’s analysis and recommendations in its 2007 five-year status review for the species. On March 27, 2013, Pacific Legal Foundation filed a lawsuit challenging the Service’s failure to issue the required 12-month finding. The Service’s issuance of its 12-month finding came pursuant to a settlement agreement and revised court order in that litigation.

 

U.S. Fish and Wildlife Service To Analyze Stakeholder Plan for Lesser Prairie-Chicken

The U.S. Fish and Wildlife Service (Service) announced (pdf) that it will prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP), including a Habitat Conservation Plan (HCP), under the Endangered Species Act (ESA). The application concerns the lesser prairie-chicken (Tympanuchus pallidicintus), which the Service has proposed to be listed as threatened under the ESA.

A group of stakeholders representing energy, agricultural, and conservation industries and organizations (Stakeholders) submitted the application. If issued, the ITP and HCP would provide sufficient “take” authorization to enable various regional construction, operation, and maintenance activities associated with multiple commercial energy facilities, agricultural activities, and conservation management activities within six states to continue in the event the Service ultimately lists the lesser prairie-chicken.

The HCP will include measures related to take avoidance, minimization of take through best management practices, and mitigation of the impacts of take through habitat preservation, restoration, and enhancement measures. The HCP’s planning area includes the occupied range of the lesser prairie-chicken in five states, including portions of New Mexico, Colorado, Kansas, Oklahoma, and Texas. It also includes areas where the species’ populations could expand with appropriate conservation initiatives, which includes portions of Nebraska.

The Service originally received a petition to list the lesser prairie-chicken in October 1995. In July 1998, the Service determined that listing the species was warranted, but precluded by other higher priority species. In December 2012, the Service published a proposed rule to list the species as threatened.
 

U.S. Fish and Wildlife Service Seeks Proposals under Section 6 of the ESA for Federal Financial Assistance

The U.S. Fish and Wildlife Service (Service) is seeking proposals (pdf) from states or territories for federal grants from the Cooperative Endangered Species Conservation Fund (Fund) for voluntary conservation projects that benefit candidate, proposed, or listed species.

The Fund is authorized under Section 6 of the Endangered Species Act (ESA) and provides four different grant programs: 1) Conservation Grants, which help implement conservation projects; 2) Recovery Land Acquisition Grants, which fund the acquisition of habitat in support of approved or draft species recovery plans; 3) Habitat Conservation Planning (HCP) Assistance Grants, which support development of HCPs; and 4) HCP Land Acquisition Grants, which fund the acquisition of land associated with approved HCPs.

To receive grant funds, a state or territory must make a minimum contribution of 25 percent of the project’s total cost, or 10 percent when two or more states implement a joint program. Additionally, the state or territory must enter into, or currently have, a cooperative agreement with the Secretary of Interior.

The estimated budget for 2014 is $56 million. The Service is accepting grant proposals for 2014 until March 14th.

U.S. Fish and Wildlife Service Announces Availability of Draft Economic Analysis for Proposed Critical Habitat for Three Amphibian Species

The U.S. Fish and Wildlife Service (Service) recently released (pdf) its draft economic analysis (DEA) for its proposal to designate critical habitat for the Sierra Nevada yellow-legged frog (Rana sierrae), the northern distinct population segment of the mountain yellow-legged frog (Rana muscosa), and the Yosemite toad (Anaxyrus canorus). The proposed critical habitat designation encompasses approximately 1,831,820 acres of habitat in California.

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the three amphibian species over the next 17 years. The DEA estimates that the costs will be between $630,000 and $1.5 million. Because 97 percent of the designated habitat would be on federal lands, these cost are primarily associated with federal agency consultations pursuant to section 7 of the Endangered Species Act (ESA) for actions such as fish stocking, water operations, grazing, and recreation.

Due to the release of the DEA, the Service also announced (pdf) that it reopened the public comment period on its April 25, 2013 proposed rule to list the Sierra Nevada yellow-legged frog and the northern distinct population of the mountain yellow-legged frog as endangered species, and the Yosemite toad as a threatened species under the ESA. It also reopened the public comment period on the proposed rule to designate critical habitat for the three species. The Service will consider any comments received or postmarked on or before March 11, 2014. The Service will hold a public hearing on the proposed rules in Sacramento, California on January 30, 2014 at 1:00 p.m. and 6:00 p.m.

U.S. Fish and Wildlife Service Affirms Listing of the White Bluffs Bladderpod

The U.S. Fish and Wildlife Service (Service) recently affirmed (pdf) its decision to list the White Bluffs bladderpod (Physaria douglasii subsp. tuplashensis) as threatened under the Endangered Species Act (ESA).  The Service also revised its designation of critical habitat for the plant species to exclude certain private and state lands in Franklin County, Washington.

The Service previously published a final rule to list the species (pdf) and designate critical habitat (pdf) on April 23, 2013.  However, the Service delayed the effective date of these rules in order to accept and consider additional public comments.  In its recent decision, the Service affirmed its listing determination, finding the White Bluffs bladderpod is threatened by wildfire, landslides, recreational activities and off-road vehicle use, nonnative plants, small population size, and limited geographic range.

Critics had challenged the listing by alleging that new information indicated the species is not a distinct subspecies of Physaria douglasii.  The Service, however, determined that the new information is inconclusive and affirmed its decision.

The Service also reevaluated its original designation of critical habitat in response to new public comments and information, including aerial photographs and site visits.  The Service determined that certain areas designated as critical habitat in the prior rule do not meet the statutory definition, and reduced the critical habitat acreage from 2,828 to 2,033 acres.

 

U.S. Fish and Wildlife Service Denies Listing for Rare Orchid

 The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the completion of its status review (pdf) of Coleman’s coralroot (Hexalectris colemanii), a species of orchid found in southeastern Arizona and southwestern New Mexico. The Service determined that listing the orchid as threatened or endangered under the Endangered Species Act (ESA) is not warranted at this time.

The Center for Biological Diversity (CBD) petitioned the Service to protect Coleman’s coralroot under the ESA in September 2010. Originally thought to be part of the Chisos coralroot, the Service recognized Coleman’s coralroot as a separate species in 2011. At that time, the species was thought to occur only in three sites in the Santa Rita and Dragoon Mountains of southern Arizona. However, as of July 2013, the species has been identified in 22 colonies across seven mountain ranges in Arizona and New Mexico.

Mining, livestock grazing, nonnative invasive plant species, wildfire, drought, and climate change were all identified by CBD as potential threats to the habitat or range of Coleman’s coralroot. The threat due to mining was of particular concern because it is a significant component of the history and economy of the southwest, including southeastern Arizona. After assessing the best available science on the magnitude and extent of these threats, the Service determined that the destruction, modification, and curtailment of the species’ habitat or range are not a threat to the species. The Service determined that, while mining operations may affect a small percentage of the species’ habitat, it and other potential threats have not resulted in measurable population declines.

Committee Recommends Delisting Yellowstone Grizzly Bear

Last week, the Interagency Grizzly Bear Committee, a panel consisting of federal, state, local, and tribal representatives, recommended that the U.S. Fish and Wildlife Service (Service) remove the grizzly bear (Ursus arctos horribilis) from the list of threatened and endangered species under the Endangered Species Act (ESA). If the Service agrees, it will initiate the rule-making process to delist the species. The Service is expected to make a decision next month.

The Yellowstone grizzly bear population is found in Montana, Idaho and Wyoming. When initially listed under the ESA, the population consisted of approximately 136 members. Today, reports indicate the species has more than 650 members.

Environmental groups contend that delisting the species is premature because the bears’ primary food source has declined due to climate change. Specifically, whitebark pine trees, which produce a nut that the bears eat, are less prevalent due to pests that previously could not survive in cold temperatures. However, according to the interagency panel, the grizzly bears’ fat levels have remained the same, thereby indicating that the species is adapting by seeking out alternative food sources.
 

U.S. Fish and Wildlife Service Extends Comment Period for Greater Sage-Grouse and Designates Critical Habitat for Franciscan Manzanita

Today, the U.S. Fish and Wildlife Service ("Service") announced (pdf) the extension of the public comment period on the proposals to list and designate critical habitat for the the Bi-State Distinct Population Segment (DPS) of greater sage-grouse (Centrocercus urophasianus) along the California-Nevada border under the Endangered Species Act, and also announced the designation of approximately 230 acres in San Francisco County as critical habitat for the endangered Franciscan manzanita (Arctostaphylos franciscana).  The Service also released the final economic analysis of the estimated incremental impact of the critical habitat designation in San Francisco County, which projected that the direct incremental cost of the critical habitat designation would be $31,435 over the next 20 years.  The economic analysis concludes that a large portion of the estimated costs would be due to additional consultation costs.  As for the sage-grouse DPS, the Service's announcement states that the comment period on the proposed listing and the proposed 1.86 million acre critical habitat designation would both be extended to February 10, 2014.   

House Natural Resources Committee to Hold Hearing on Department of the Interior's 2011 Endangered Species Act Settlements

On Thursday, December 12, 2013, the House Natural Resources Committee (Committee) will hold a full committee oversight hearing (pdf) titled “ESA Decisions by Closed-Door Settlement: Short-Changing Science, Transparency, Private Property, and State & Local Economies.” This hearing is part of a series of hearings announced by the Committee to review the Endangered Species Act (ESA) and conduct an assessment of the law’s strengths and weaknesses.

As we previously reported, in 2011, the U.S. Fish and Wildlife Service (Service) developed a six-year work plan that would allow it to systematically review and address more than 250 candidate species as part of a settlement agreement with WildEarth Guardians and the Center for Biological Diversity. Under the settlement agreement, the Service agreed to prioritize listing decisions for several candidate species, and the environmental groups agreed to refrain from filing actions to compel findings on new listing petitions that they submit.

Republicans have largely condemned the settlement, arguing that the “sue-and-settle” approach has led to excessive litigation that requires federal agencies to spend great time and financial resources addressing lawsuits rather than species recovery. The Service, on the other hand, regards the settlement as a success, noting that setting deadlines for final decisions on candidate species has spurred cooperation from states and private landowners in creating conservation plans that address concerns about the species without necessarily requiring the need for listings.

The Committee’s hearing will be held at 10:00 a.m. EST, in room 1324 Longworth House Office Building, Washington, DC.
 

U.S. Fish and Wildlife Service to Determine Whether to List the Arctic Grayling

Last week, the U.S. Fish and Wildlife Service (Service) announced (pdf) that it will begin a status review of the upper Missouri River distinct population segment (DPS) of the Arctic grayling (Thymallus arcticus). The status review will allow the Service to determine whether the DPS should be listed as threatened or endangered under the Endangered Species Act (ESA).

The Arctic grayling is found primarily in the Arctic and Pacific oceans, although some populations are river-dwelling. The fish has a long, thin body with a forked tail and can grow up to 13 inches long. The DPS that is the subject of the Service’s review inhabits watersheds in the upper Missouri River basin upstream of Great Falls, Montana. Threats to the population include dam building and predation.

The species was first placed on the candidate list in 1994. In 2010, the Service determined the upper Missouri River population was considered a DPS under the ESA, and found that listing the DPS was warranted but precluded by higher priority listing actions. The Service’s current status review is the result of its 2011 settlement with WildEarth Guardians, under which the agency must issue decisions on 252 candidate species by 2016.

According to the announcement, the Service will accept information regarding the DPS through December 26, 2013.
 

U.S. Fish and Wildlife Service Approves HCP and ITP for 10 Species Over a 50-Year Period

Last week, the U.S. Fish and Wildlife Service (Service) published in the Federal Register a notice of its Record of Decision on an Incidental Take Permit authorizing NiSource, Inc. (NiSource) to "take 10 federally listed species over a 50-year period."  NiSource is engaged in natural gas transmission, storage, and distribution, as well as electric generation, transmission, and distribution.  In 2009, NiSource applied for authorization under Section 10 of the Endangered Species Act to take 10 federally listed species "in the course of engaging in otherwise lawful gas and transmission and storage operations."  The 10 species include the endangered Indiana bat (Myotis sodalis), threatened bog turtle, (Glyptemys muhlenbergii), threatened Madison Cave isopod (Antrolana lira), endangered clubshell mussel (Pleurobema clava), endangered northern riffleshell mussel (Epioblasma torulosa rangiana), endangered fanshell mussel (Cyprogenia stegaria), endangered James spinymussel (Pleurobema collina), endangered sheepnose mussel (Plethobasus cyphyus), endangered Nashville crayfish (Orconectes shoupi), and endangered American burying beetle (Nicrophorus americanus).  Under Section 10 of the Endangered Species Act, an applicant is required to submit a proposed Habitat Conservation Plan, which must ensure that the applicant takes steps to avoid and minimize harm to listed species and mitigate the amount of harm that is unavoidable.  As summarized by the Service, the Multi-Species Habitat Conservation Plan submitted by NiSource and approved by the Service "covers a suite of activities that NiSource uses to maintain and expand their pipelines and pipeline rights-of-way in 14 eastern U.S. states.  Typical activities include right-of-way maintenance; facility inspection; upgrade and replacement of pipelines; forced relocations; and expansion projects."   

U.S. Fish and Wildlife Service Reopens Public Comment Period for Proposed Listing of Gunnison Sage-Grouse

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the reopening of the public comment periods for its January 11, 2013 proposed rules to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA) and to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah. The Service also announced that it was rescheduling two public information sessions and public hearings for the proposed rules, as well as adding a third public informational session and public hearing. These hearings will be held November 19-21, 2013 in Colorado and Utah. The public can submit comments on the proposed rules through December 2, 2013.

As we previously reported, on March 13, 2013, the Service previously extended the comment periods for the proposed rules. The prior extension was the result of several requests to extend the 60-day comment period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.
 

U.S. Fish and Wildlife Service Proposes Delisting the Inyo California Towhee

                                                       Photograph By Alan Vernon

On November 4, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to remove the Inyo California towhee (Pipilo crissalis eremophilus) from the list of threatened and endangered species under the Endangered Species Act (ESA). The Service concluded that delisting the Inyo California towhee is warranted because substantial threats to the species have been ameliorated or reduced since listing, and the species no longer meets the definition of a threatened species under the ESA. 

According to the Service, the total rangewide population of the towhees indicates a self-sustaining population. Specifically, the species’ population has increased from 200 individual towhees at the time of listing to between 640 and 741. A cooperative agreement between land managers and the Service also represents an ongoing commitment to the conservation of the towhee and its habitat. 

Threats to the towhee historically included grazing by feral equines, recreational activities such as hiking, camping, hunting, and off-highway vehicle use, water diversion, mining, energy development, invasive and nonnative plants, predation, and climate change.  

Comments on the proposed rule must be submitted by January 3, 2014.

U.S. Fish and Wildlife Service Proposes Listing the Greater Sage Grouse under the Endangered Species Act

On October 28, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus) as threatened under the Endangered Species Act (ESA). According to the Service, this bi-state population is genetically distinct and geographically isolated from other greater sage grouse populations, and warrants protection under the ESA.

Primary threats to the species include degradation of habitat by livestock grazing and invasive plant species, fragmentation of habitat caused by urban and energy development, motorized recreation in courtship and nesting areas, and loss of habitat due to drought and wildfires.

In addition, the Service published a proposed rule (pdf) to designate over 1.8 million acres of critical habitat for the species in Storey, Carson, Douglas, Mineral, and Esmeralda counties in Nevada and Mono, Alpine, and Inyo counties in California.

Comments on the proposed rules must be submitted by December 27, 2013.
 

U.S. Fish and Wildlife Service Denies Endangered Species Act Protection for Ashy Storm-Petrel

Today, the U.S. Fish and Wildlife Service (Service) published (pdf) its final determination that the ashy storm-petrel (Oceanodroma homochroa) does not warrant listing under the Endangered Species Act (ESA) at this time. The Service’s announcement constitutes its 12-month finding on a petition to list the species filed by the Center for Biological Diversity (Center).

The ashy storm-petrel is a small seabird that ranges from the California-Oregon border to Islas San Benitos, Mexico. The Service determined that climate change, invasive species, human activities, military activities, overutilization, predation, pollution, and ingestion of plastics are all potential threats to the species that are having a negligible to slight impact on the species. The Service also found that predation by the burrowing owl and western gull are likely having a slight to moderate impact on the species. The Service determined, however, that these threats did not rise to the level of warranting listing under the ESA because they would not affect the overall status of the species.

The Center filed a petition to list the ashy storm-petrel as threatened or endangered under the ESA on October 16, 2007. While the Service found that the listing may be warranted, on August 19, 2009, the Service announced its determination that listing was not warranted. The Center subsequently challenged the Service’s determination in the United States District Court of the Northern District of California, with the challenge ultimately being resolved via a Stipulation of Dismissal. In the Stipulation of Dismissal, the parties agreed to dismissal of the Center’s challenge subject to the Service’s agreement to submit a proposed rule or not-warranted finding regarding the ashy storm-petrel by the end of Fiscal Year 2013.

U.S. Fish and Wildlife Service Proposes to List Two Flower Species as Endangered

On October 3, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Florida Brickell-bush (Brickellia mosieri) and Carter’s Small-flowered Flax (Linum carteri var carteri) as endangered under the Endangered Species Act (ESA).

According to the Service, the flower species’ habitat in the pine rockland community of Miami-Dade County has been drastically reduced due to residential and commercial development and agriculture. Moreover, there is a potential for high levels of nutrients from agricultural and urban areas to seep into the pine rockland, thereby changing the vegetation composition and structure of the soil, and resulting in harm to the species.

In addition to the proposed rule to list the two species, the Service also published a proposed rule (pdf) to designate critical habitat for the two species in Miami-Dade County. In total, the Service proposed to designate over 2,600 acres for the Florida Brickell-bush and over 2,600 acres for the Carter’s Small-flowered Flax.

According to the notice in the Federal Register, comments on any of the proposed rules must be submitted by December 2, 2013.
 

U.S. Fish and Wildlife Service Proposes Listing the Rufa Red Knot as Threatened Under the Endangered Species Act

The U.S. Fish and Wildlife Service (Service) recently proposed listing (pdf) the rufa red knot (Calidris canutus rufa) as threatened under the Endangered Species Act. The red knot is a medium-sized shorebird about 9 to 11 inches in length that migrates more than 9,000 miles annually between its breeding grounds in the Canadian Arctic and Tierra del Fuego at the southern tip of South America. During its migration, the bird spends considerable time along the eastern seaboard of the United States.

According to the Service, the species has declined, in part, due to an increase in harvesting of horseshoe crab in Delaware Bay. Because the red knot relies on crab eggs as its primary food source, this reduction in food supply has caused the species’ population to decline. The Service also cites climate change and the loss of both breeding and nonbreeding habitat as threats to the species.

The Service will be accepting comments on its proposed rule until November 29, 2013. 

© Hans Hillewaert / CC-BY-SA-3.0
 

Impacts of Government Shutdown on Endangered Species

As reported earlier today by Emily Yehle of Greenwire, if the U.S. Government fails to avoid a government shutdown before tomorrow, a number of federal agencies, including the U.S. Environmental Protection Agency and U.S. Department of the Interior are planning to "pull the plug on their online presence."  (E&ENewsPM, Sept. 30, 2013).  You may ask, what other impacts will there be as a result of the impending government shutdown?  While, according to the Department of the Interior's website (pdf), as a general matter "Service employees will not continue to work" on court ordered deadlines for endangered species during the shutdown.  The Service does provide itself a bit of wiggle room, however, stating that "[i]n the limited circumstances where a court-ordered deadline is imminent, unless and until an extension is granted, Service employees on a case-by-case basis may be required to continue to work on these matters."  As for section 7 consultations and the National Environmental Policy Act, the website states that "Service employees would not be conducting any consultations, NEPA or other work of this nature until the governments reopens."    

U.S. Fish and Wildlife Service Lists Three Species in Texas and New Mexico as Threatened or Endangered

 The U.S. Fish and Wildlife Service (Service) recently listed (pdf) the Jemez Mountains salamander (Piethodon neomexicanus) as endangered under the Endangered Species Act (ESA). The Service also recently published (pdf) a final rule listing the Texas golden gladecress (Leavenworthia texana) as endangered and the Neches River rose-mallow (Hibiscus dasycalyx) as threatened under the ESA.

The Jemez Mountains salamander is found only in the Jemez Mountains in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval Counties. The salamander is generally found around the rim of the collapsed Valles Caldera (a large volcanic crater), or in some instances in the interior of the caldera. The principal threats to the Jemez Mountains salamander include historical fire prevention and suppression, forest composition and structure conversions, post-fire rehabilitation, habitat fragmentation, and recreation. The Service announced that it will publish a final rule designating critical habitat for the salamander in the future.

The Texas golden gladecress is a small, annual, herbaceous plant belonging to the mustard family. It is principally found in east Texas, in San Augustine and Sabine Counties. The principle threats to the species include, in some cases, a total loss of habitat and plants, and in others, a degradation of the herbaceous glade plant communities supporting the species. The Service has determined that these threats are likely to be exacerbated by climate change. Activities or factors that continue to negatively impact the species’ habitat include quarrying, natural gas and oil exploration, invasion of open glades by nonnative species, pine tree plantings in close proximity to occupied glades, herbicide applications that kill emerging seedlings, and the installation of service improvements, including water and sewer lines, domestic gas lines, or electric lines.

The Neches River rose-mallow is similarly found in east Texas. Its principle threats include habitat loss and degradation of open habitats in the Neches, Sabine, and Angelina River basins and Mudd Creek and Tantabogue Creek basins that support the species. The rose-mallow’s habitat is being lost and degraded by encroachment of nonnative and native plant species, herbicide use, livestock, and alteration of the natural hydrology associated with seasonal flooding.

Due to the threat of habitat loss or degradation, the Service has also published (pdf) a final rule designating approximately 1,353 acres of critical habitat for the Texas golden gladecress in Sabine and San Augustine Counties, and approximately 166.5 acres of critical habitat for the Neches River rose-mallow in Nacogdoches, Houston, Trinity, Cherokee, and Harrison Counties. The Service’s critical habitat designation has created controversy in the seven affected counties, where opponents have stated they plan to fight the designation in court.

U.S. Fish & Wildlife Service Issues Recovery Plan for Alaskan DPS of Northern Sea Otter

Earlier this month, the U.S. Fish & Wildlife Service (Service) announced (pdf) the availability of its recovery plan (pdf) for the threatened southwest Alaska Distinct Population Segment of the northern sea otter (Enhydra lutris kenyoni).  The recovery plan describes the status of the otter, its history, and a number of actions the Service believes will allow for the delisting of the otter.  With respect to the otter's declining status, the recovery plan states that "[t]he only identified threat factor that is judged to have a high importance to recovery is predation[,]" and the weight of the evidence suggests that killer whale predation is the most likely cause.  As for the otter's recovery, the recovery plan identifies three general objectives to achieve delisting, and explicit criteria for determining when each objective has been achieved.    

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. 

U.S. Fish & Wildlife Service Proposes Downlisting the Santa Cruz Cypress

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) downlisting the Santa Cruz cypress (Hesperocyparis abramsiana; previously listed as Cupressus abramsiana) from endangered to threatened under the Endangered Species Act (ESA).

The Service originally listed the Santa Cruz cypress as endangered in 1987, citing development-related threats to the species’ habitat as the reason for its decline. Officials also noted that alterations in the natural pattern of wildfires were having an adverse impact on the species’ population, as the Santa Cruz cypress relies on wildfires for its reproductive cycle. At the time the Santa Cruz cypress was listed as endangered, officials estimated that as few as 2,300 individuals remained.

The Service now estimates that between 33,000 and 44,000 individuals are living in five separate populations in Santa Cruz and San Mateo Counties. Nearly all of the individuals occur on lands managed for conservation by public and private entities. As a result, the Service concluded that development-related threats to the Santa Cruz cypress were negligible, and that the criteria for downlisting the species had been met. However, the Service determined that altered wildfire patterns were likely to continue impacting the long-term persistence of the Santa Cruz cypress, and as a result, federal protection under the ESA was still required.

U.S. Fish and Wildlife Service Lists Two Species of Salamanders and Proposes Listing Two Species of Minnows Endemic to Texas

On August 19, 2013, the U.S. Fish and Wildlife Service (Service) announced (pdf) its decision to list the Austin blind salamander (Eurycea waterlooensis) as endangered and the Jollyville Plateau salamander (Eurycea tonkawae) as threatened under the Endangered Species Act (ESA). While the Service’s proposed listing of the two species designated both as endangered, the Service’s final rule (pdf) lists the Jollyville Plateau salamander as threatened based on new information received since publication of the listing proposal.

In conjunction with listing the two species, the Service designated (pdf) approximately 4,451 acres of critical habitat for both species in portions of Travis and Williamson Counties in south-central Texas. The final critical habitat determination decreased the amount in the Service’s proposed rule by 603 acres.

The primary threat to the Austin blind and Jollyville Plateau salamanders is habitat modification, in the form of degraded water quality and quantity and disturbance of spring sites due to urbanization. The ranges of the two species is limited to increasingly urbanized areas of Travis and Williamson Counties that are experiencing rapid population growth.

In connection with this final rule, the Service also announced (pdf) a six-month extension of the final determinations of the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis), and reopened the public comment period for those species for 30 days. The Service’s announcement was in response to public comments expressing concern regarding the sufficiency and accuracy of the available data related to the two species.

The Service also recently announced that it was proposing listing two species of Texas minnows as endangered under the ESA based on evidence that their habitats are in decline. Along with the listing proposal (pdf), the Service proposed (pdf) designating approximately 623 miles of the upper Brazos River basin as critical habitat for the sharpnose (Notropis oxyrhynchus) and smalleye (N. buccula) shiner. The two species are native to arid prairie streams in Texas. They are currently restricted almost entirely to the contiguous river segments of the upper Brazos River basin in north-central Texas, representing a reduction from the sharpnose and smalleye shiners’ historical ranges of more than 50 and 70 percent, respectively.
 

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. 

 

 

U.S. Fish and Wildlife Service Releases Plan to Shoot Barred Owls to Protect Northern Spotted Owls

On July 23, 2013, the U.S. Fish and Wildlife Service (Service) released a final plan to shoot approximately 3,600 barred owls (Strix varia) in the Pacific Northwest in order protect the northern spotted owl (Strix occidentalis caurina), which is listed as threatened under the Endangered Species Act.

The plan provides that the Service will use shotguns to remove barred owls from four test areas in Washington, Oregon, and California. According to the Service, the barred owl is a threat to the northern spotted owl because it outcompetes the smaller and less aggressive spotted owl for food and nesting habitat.

While the Service would have preferred to capture and relocate the barred owls, eastern states were unwilling to accept them. The plan marks the first time the Service has proposed lethal removal of barred owls.

The Los Angeles Times reports that “[a]nimal activists have blasted the federal plan, saying the government should stay out of the fray and let the more dominant bird prevail, as nature intended” (Los Angeles Times, July 23, 2013 by John Glionna). Agency officials have countered by explaining that they are proposing a controlled experiment to assess whether removal of barred owls can contributed to the recovery of the listed northern spotted owl.
 

U.S. Fish & Wildlife Service Extends Comment Period for Proposed Listing of Gunnison Sage-Grouse

The U.S. Fish and Wildlife Service (Service) announced this week that it will extend for six months a final decision on whether to list the Gunnison sage-grouse (Centrocercus minimus) under the Endangered Species Act (ESA), and whether to designate 1.7 million acres in Colorado and Utah as critical habitat for the species.

In January of this year, the Service proposed listing the Gunnison sage-grouse as an endangered species and designating critical habitat for it.  As we previously reported, the Service subsequently extended the comment period from March 12 to April 2, 2013.  The Service planned to make a final listing determination on September 30, but this week's announcement has deferred a final determination until March 31, 2014.  The public comment period has also been reopened until September 3, 2013.

The Service stated that more time was required to consider additional scientific information recently received, noting that "substantial disagreement" exists regarding the interpretation of scientific literature on matters such as population trends, the effectiveness of local regulatory protections, and the threat posed by future residential development within the species' range.  According to the Service's Mountain-Prairie Regional Director, Noreen Walsh: "[The Service] heard loud and clear from many people invested in Gunnison sage-grouse conservation that there is additional scientific information we should consider during our decision-making process....  In order to consider that information and make use of the best available science, we are extending the timeline on our final decision on how to best conserve this important sagebrush species."

U.S. Fish and Wildlife Service Proposes Listing the Kentucky Glade Cress

 The U.S. Fish and Wildlife Service (Service) recently published a proposed rule (pdf) to list the Kentucky glade cress (Leavenworthia exigua var. laciniata) as threatened under the Endangered Species Act (ESA). The Service also proposed (pdf) designating critical habitat for the species.

The Service previously identified the Kentucky glade cress as a candidate species on November 9, 2009. However, it was designated as a Listing Priority Number (LPN) 3. LPNs are assigned based on the immediacy of the threat to the species, as well as taxonomic status. As an LPN 3, Kentucky glade cress was identified as a candidate species for which the Service had on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation was precluded by other higher priority listing activities.

Kentucky glade cress is an annual member of the mustard family, known only to occur in Jefferson and Bullit counties in Kentucky. The species is a wildflower that grows to four inches and has small white to lilac blooms. Kentucky glade cress prefers environments with shallow soils with flat-bedded limestone, known as cedar or limestone glades.

The Service determined that Kentucky glade cress is threatened by the loss and degradation of habitats supporting the species due to development, roads, utilities, conversions to lawns, horseback riding, off-road vehicle use, and changes in grazing practices and forest encroachment. Additionally, other factors, including narrow range, low genetic diversity, and small population size, also warrant listing Kentucky glade cress as threatened.

In conjunction with the proposed rule to list the Kentucky glade cress as threatened under the ESA, the Service proposed designating 2,053 acres of critical habitat for the species. The designated habitat consists of six units, with 18 subunits, representing 18 of the 61 extant occurrences of Kentucky glade cress. Each unit contains all of the physical or biological features essential to the conservation of the species.

U.S. Fish and Wildlife Service Proposes Delisting the Gray Wolf

On June 13, 2013, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA) throughout the United States and Mexico. The proposed rule also proposes to maintain protection for the Mexican gray wolf (Canis lupus baileyi) in the Southwest by listing it as endangered under the ESA. Presently, the gray wolf is listed in 42 states, including California. 

Previously, the Service determined (pdf) that the southwestern population of the gray wolf – known as the Mexican gray wolf – may warrant a separate listing as a subspecies or a Distinct Population Segment (DPS). However, because the entire population of the gray wolf already received protection under the ESA, the Service determined that a subspecies listing was not warranted. 

 

Now, in light of the proposed rule delisting the gray wolf entirely, and thereby removing its protection under the ESA, the Service will reconsider listing the Mexican gray wolf population as a subspecies or DPS. The Service will accept comments on the proposed rule until September 11, 2013.

Habitat Conservation Plan Implemented in Tehachapi Uplands

On May 10th, the U.S. Fish and Wildlife Service (Service) announced that it had approved the Tehachapi Uplands Multiple Species Habitat Conservation Plan (Plan), which will provide protections for 25 species of plants and animals, while permitting limited development and other land use activities on designated areas within Tejon Ranch. Founded in 1843, Tejon Ranch is the largest contiguous expanse of private land in California. 

Many years in the making, the Plan will protect wildlife habitat and enhance species conservation on over 140,000 acres. The Plan provides protections for several species listed under the Endangered Species Act (ESA), including the California condor (Gymnogyps californianus), least Bell's vireo (Vireo bellii pusillus), and southwestern willow flycatcher (Empidonax traillii extimus). The Service’s approval of the Plan provides Tejon Ranch with a 50-year incidental take permit under the ESA, and ensures compliance with the ESA as it proceeds with development. An upscale mountain resort is planned on approximately 5,000 acres. 

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. Fish and Wildlife Service Proposes Endangered Species Act Protections for Sierra Nevada Amphibians

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation, predation, disease, climate change, and other factors impacting the species’ vitality. The Service also determined that Yosemite toad populations are likely to decrease due to habitat degradation and anticipated effects of climate change.

In addition to the proposed listing, the Service also published a proposed rule (pdf) to designate critical habitat for the three species. Specifically, the Service proposed designating over 1.1 million acres of critical habitat for the Sierra Nevada yellow-legged frog, over 200,000 acres for the northern DPS of the mountain yellow-legged frog, and over 750,000 acres for the Yosemite toad. The critical habitat designations include acreage in seventeen counties across California, ranging from Tulare County in the south to Butte County in the north.

Comments regarding either proposed rule must be submitted by June 10, 2013.

 

U.S. Fish and Wildlife Service Considers Protection for Black-Backed Woodpecker

The United States Fish and Wildlife Service (Service) has announced (pdf) that it will conduct a full status review to determine whether protection under the Endangered Species Act (ESA) is warranted for two populations of the black-backed woodpecker (Picoides articus).

The Service's announcement is in response to a petition filed by environmental groups requesting two populations of the species, the Cascades-Sierra Nevada population in California, Oregon, and Washington, and the Black Hills population in South Dakota and Wyoming, be listed as endangered or threatened subspecies under the ESA, and that critical habitat be designated for the populations.  The petition also requested that, if the Service did not recognize the populations as subspecies, the populations be considered endangered or threatened distinct population segments.

The Service determined that the petition contained substantial information indicating that both the Cascades-Sierra Nevada population and Black Hills population were potentially listable entities, either as subspecies or distinct population segments. 

The black-backed woodpecker largely depends on forest fires for food.  The bird has a narrow diet consisting mainly of the larvae of wood-boring and bark beetles.  Unable to attack live trees, these beetles concentrate in areas where trees have been burned by forest fires.  As a result, black-backed woodpecker populations are low in unburned forests, but increase rapidly following a fire.  According to the Service, increased destruction of the bird's habitat due to salvage logging, tree thinning, and fire suppression activities, are contributing to the species' decline.

The Service's status review process is due to be completed in a year.

U.S. Fish and Wildlife Service Proposes to Designate Almost 740 Miles of Critical Habitat for the Loggerhead Sea Turtle

On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA).  The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi.  Photo by Strobilomyces at Océanopolis, Brest, France on 17th April 2006.

The loggerhead sea turtle includes nine distinct population segments (DPS), and the Northwest Atlantic Ocean DPS is currently listed as threatened (pdf) under the ESA.  The critical habitat designation would help protect foraging and nesting grounds for the species.  According to the Service, the proposed designation is limited to occupied habitat containing "the physical and biological features essential to the conservation of the species in the terrestrial environment."  Comments on the proposed designation must be submitted by May 24, 2013.

The National Marine Fisheries Service (NMFS) joined the Service in listing the species in 2011.  NMFS is currently evaluating specific areas in the marine environment in order to issue a proposed rule designating in-water critical habitat for the loggerhead sea turtle later this year.

Comment Period Extended for Proposed Listing of Gunnison Sage Grouse

On March 13, 2013, the U.S. Fish and Wildlife Service (Service) extended (pdf) the public comment period for two proposed rules relating to the Gunnison sage-grouse (Centrocercus minimus).  As we previously reported, the Service published a proposed rule to list the species as endangered under the Endangered Species Act (ESA) in January.  In conjunction with that proposed rule, the Service also proposed to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah.  The 60-day public comment period for these two proposed rules was scheduled to end March 12, 2013, but the Service received several requests to extend the period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.  The public comment period is now open until April 2, 2013.

Among those requesting extension of the comment period were congressional leaders in Colorado and Utah, who sent a letter to the Service's regional director requesting the Service extend the period 60 days because of the "great interest and concern" among the communities they represent.  Of particular concern to the lawmakers was the critical habitat designation because it could impact a host of land uses on both public and private land, including the development of mineral resources.

While the Service extended the public comment period for the two proposed rules, the extension fell short of the 60 days requested by the congressional leaders.  As we previously reported, the Service is under a deadline imposed through a legal settlement with WildEarth Guardians to review and address the needs of more than 250 species listed as candidate species for protection under the ESA, including the Gunnison sage-grouse.  The deadline for review of the Gunnison sage-grouse is September 30, 2013.  With the public comment period extended for only three weeks - to April 2nd - the Service indicates it intends to issue its final determinations with respect to the proposed rules by the agreed upon deadline.

U.S. Fish and Wildlife Service Proposes Removal of Island Night Lizard

The U.S. Fish and Wildlife Service (Service) recently proposed (pdf) to remove the island night lizard (Xantusia riversiana) from its current listing as threatened under the Endangered Species Act (ESA).  The proposed removal is based on successful recovery efforts led by the U.S. Navy and National Park Service, which have resulted in the achievement of nearly all of the objectives established in the recovery plan for the species.

Island night lizards are found only on the Channel Islands - San Clemente Island, San Nicolas Island, and Santa Barbara Island - off the southern California coast.  Historic land use practices, including ranching and grazing, severely impacted habitat for the species.  Additionally, introduction of nonnative species, including goats, pigs, and rabbits, greatly damaged suitable island night lizard habitat. 

The island night lizard was originally listed as threatened under the ESA in 1977.  The Service implemented a recovery plan for the species in 1984, which focused on habitat restoration and education.  By the mid-1990s, the nonnative species responsible for most of the habitat loss were removed from the islands, allowing for the slow recovery of the island night lizard. 

Today, there are an estimated 21 million island night lizards on San Clemente Island, about 15,300 on San Nicolas Island, and about 17,600 on Santa Barbara Island.  Though almost all of the recovery plan objectives for the species have been achieved, both the Navy and the National Park Service are actively cultivating native plants to further habitat restoration on San Nicolas and Santa Barbara Island.

U.S. Fish and Wildlife Service Issues Special Final Rule to Manage the Polar Bear

On February 20, 2013, the U.S. Fish and Wildlife Service (Service) issued a final special rule (pdf) to manage the polar bear (Ursus maritimus), which is listed as threatened under the Endangered Species Act (ESA). The rule effectively maintains the management and conservation framework that has been in effect for the polar bear since it was first listed under the ESA in 2008.

The rule states that activities outside the polar bear’s habitat are not subject to ESA incidental take prohibitions. According to the Service, the rule “avoids redundant regulation under the ESA by adopting the longstanding and more stringent protections of the Marine Mammal Protection Act of 1972 (MMPA).” Specifically, the rule regulates activities that could potentially harm the polar bear, including onshore and offshore oil and gas exploration, development, and production activities in Alaska, by relying on the stricter MMPA incidental take prohibitions.

The rule is the result of a lawsuit brought by environmental groups to require the federal government to regulate greenhouse gas emissions that are contributing to climate change, and thus altering polar bear habitat. The final rule reflects the court’s determination that the ESA isn’t appropriate for regulating greenhouse gases.
 

U.S. Fish and Wildlife Service Issues Proposed Rule to List Gunnison Sage-Grouse as Endangered

 On January 11, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA).  As we previously reported, the sage-grouse had been on the candidate species list since January of 2000, but the Service was not authorized to prepare a proposed rule to list the species or designate critical habitat until 2011, when additional resources became available.

The Gunnison sage-grouse is the smaller cousin of the greater sage-grouse.  The species occurs in seven widely scattered and isolated populations in southwestern Colorado, including one that extends into southeastern Utah.  The core and largest population of the species is considered stable, while other populations are in decline.  

The Service has identified habitat loss and fragmentation as key threats to the Gunnison sage-grouse.  According to an advance notice published in the Federal Register, "The human population is increasing  throughout much of the range of the Gunnison sage-grouse, and data indicate this trend will continue.  With this growth, we expect an increase in human development, further contributing to loss and fragmentation of Gunnison sage-grouse habitats."  Accordingly, the Service also published a proposed rule (pdf) to designate approximately 1,704,227 acres of critical habitat for the species in Colorado and Utah.

The proposed listing and designation of critical habitat is the product of the Service's legal settlement with WildEarth Guardians and the Center for Biological Diversity that required either a proposed listing decision or a "not warranted" determination for the species by September 30, 2013.  The Service is accepting comments on both the proposed listing of the Gunnison sage-grouse and the proposed designation of critical habitat through March 12, 2013.

Interior Secretary Ken Salazar Stepping Down

This morning, Secretary of the Interior Ken Salazar announced that he is planning to step down at the end of March.  A number of prominent elected officials from the western United States have been mentioned in the press as potential candidates for the position.

The U.S. Fish and Wildlife Service Proposes to Downlist the Status of the Wood Stork from Endangered to Threatened

On Tuesday, December 18, 2012, the U.S. Fish and Wildlife Service (Service) proposed upgrading the status of the wood stork (Mycteria americana) from endangered to threatened under the Endangered Species Act (ESA).  The proposed change is in response to improvements in the population and habitat of the species based on the best available scientific information.

Dan Ashe, Director for the Service, remarked that the proposed reclassification "demonstrates that the [ESA] works" and that "the species is making real progress toward recovery."  The wood stork was originally listed (pdf) as endangered in 1984; since that time, the breeding population has substantially improved.  Specifically, the average number of nesting pairs has increased from 7,086 to 8,996 over the last decade.  While these nesting benchmarks are still below the five-year average of 10,000 needed for delisting, the population increase is encouraging.  The wood stork's breeding range has also expanded to twice its former size.  The species used to breed primarily in central and southern Florida, but its current breeding range includes wetland areas in Georgia and South Carolina.

The proposed reclassification will not affect any protective or conservation measures in place for the species under the ESA.  Rather, it recognizes the improvements in the wood stork's population and is intended to encourage the continuation of collaborative conservation efforts, with the ultimate goal of delisting the species in the coming years.

 



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.

The U.S. Fish and Wildlife Service Proposes Listing the Lesser Prairie-Chicken as Threatened

On November 30, 2012, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to list the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  While voluntary conservation planning efforts are ongoing, the Service decided (pdf) to move forward with the proposed rule based on “scientific evidence that the lesser prairie-chicken and its habitat are in decline.”  The Service encouraged the public and scientific community to comment on the proposed rule during the 90-day comment period.  The Service will make its final determination based on the best available science.

As previously reported, stakeholders are working towards reaching voluntary agreements to protect the lesser prairie-chicken in lieu of listing the species under the ESA. The Service acknowledged these efforts and stated “we are encouraged by current multi-state efforts to conserve the lesser prairie-chicken and its habitat, but more work needs to be done to reverse its decline.”  In a letter (pdf) encouraging the Service to consider these efforts when making its decision to list the species, Senator Tom Udall (D - N.M.) expressed concern over the impact of a listing decision on landowners, ranchers and other industries in New Mexico.  Others, including Senator Jim Inhofe (R - Okla.), are pleased with the Service's proposal to list the species as threatened, rather than endangered, because it will have less impact on agriculture, highway construction and wind energy development projects in Oklahoma.  The Bureau of Land Management (BLM), however, is committed to protecting the lesser prairie-chicken without assistance from the ESA.  Today, BLM announced that it purchased 1,789 acres of private land in southeastern New Mexico as additional habitat for the species. (San Francisco Chronicle, Dec. 7, 2012).

 

 

 

U.S. Fish and Wildlife Service Issues Final Rule for Northern Spotted Owl Habitat

The U.S. Fish and Wildlife Service (Service) recently announced  (pdf) that it finalized its designation of critical habitat for the northern spotted owl (Strix occidentalis caurina) in the Pacific Northwest.  The final rule designated 9.29 million acres of federal land and 291,750 acres of state land as critical habitat for the species.  The final rule reduced the amount of habitat by approximately 4.3 million acres from a February 2012 proposal.  The Service asserts that this designation comported with a Presidential Memorandum directing the Department of the Interior to give careful consideration to providing the maximum exclusion of areas from the final rule.

The Service's final rule represents a balancing act between conservation of the northern spotted owl and recognition of the importance of the designated lands to the Pacific Northwest's logging industry.  According to the Service, the designation will provide federal agencies, including the Bureau of Land Management and the U.S. Forest Service, with the information they need to ensure protection for remaining old growth forests, while implementing ecological timber harvests to improve habitat and its resilience to wildfire and insect infestations.  The Service maintained that the designation of critical habitat on state lands, primarily in Oregon, will have almost no impact on the states' management of those lands or timber harvests on those lands because a habitat designation affects only federal actions or proposed activities involving federal funding or permitting.

The American Forest Resource Council, which represents logging interests in the Pacific Northwest, said that the draft critical habitat plan ignored threats such as the non-native barred owls (Strix varia) and catastrophic wildfire on the spotted owl populations.  The barred owl is a larger and more aggressive species that migrated west in the late 1950s and have spread throughout northern spotted owl habitat.  They are displacing the spotted owl populations and compete with the spotted owl for many of the same foods.  In releasing its final rule, the Service also announced that it is working on a concurrent strategy to manage barred owl populations.  

The Service's final rule substantially increased the amount of land designated as critical habitat relative to the previous rule, issued in 2008 under the Bush administration. The critical habitat designation revised that 2008 rule in response to an order by the U.S. District Court for the District of Columbia.

Fish and Wildlife Service Announces Proposal to Protect 40 Hawaiian Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposal to protect 40 different species native to Hawaii under the Endangered Species Act (ESA).  The Federal Register notice of the announcement can be found here (pdf).  The proposal encompasses 37 plant species, including herbs, shrubs, trees, and ferns, and three species of tree snails.  The species are native to the Hawaiian Islands of Moloka'i, Lana'i, Kaho'olawe, and Maui.  They are found in 11 different ecosystem types.

The Service's announcement also included critical habitat designation for 39 of the 40 species, totaling approximately 271,062 acres of land, including occupied and unoccupied habitat. Of that total, 192,364 acres are located on Maui, 46,832 acres are on Moloka'i, 25,413 acres are on Lana'i, and 6,453 acres are on Kaho'olawe.  Almost half of the designated area was already designated as critical habitat for other listed species.  Loyal Mehrhoff, field supervisor for the Pacific Islands Fish and Wildlife Office said of the listing, "The Service is implementing an ecosystem-based approach to the proposed listing and designation of critical habitat in Hawaii - which leads the nation in the number of federally listed and candidate species - to better prioritize, direct, and focus conservation and recovery actions."

Threats to the listed species include: (1) habitat degradation and direct consumption by nonnative pigs, goats, sheep, and deer; (2) direct consumption by nonnative pigs, goats, sheep, deer, other nonnative vertebrates and invertebrates; (3) habitat destruction and modification by nonnative plants, stochastic events (e.g. hurricanes, flooding, etc.), agriculture and urban development, and climate change; and (4) inadequate regulatory  mechanisms and other species-specific threats.  The Service found that all 40 species face immediate and significant threats throughout their ranges.

The Service announced its proposal to protect the 40 species, native to the Hawaiian Islands of Moloka'i, Lana'i, and Maui as endangered, as well as the designation of critical habitat for 135 species, in June 2012.  The Service's announcement follows a 2004 petition drafted by the Center for Biological Diversity asking the Service to list 227 different species under the ESA.

Photo by Hank Oppenheimer, Plant Extinction Prevention Program, U.S. Fish and Wildlife Service

U.S. Fish and Wildlife Service Finds Substantial Information Indicating That Delisting or Reclassifying Six Species May Be Warranted

On June 4, the U.S. Fish and Wildlife Service (Service) published a 90-day finding (pdf) that substantial scientific or commercial information indicates that delisting the Inyo California towhee (Pipilo crissalis eremophilus) and reclassifying from endangered to threatened the arroyo toad (Anaxyrus californicus), Indian Knob mountainbalm (Eriodictyon altissimum), Lane Mountain milk-vetch (Astragalus jagerianus), Modoc sucker (Catostomus microps), and Santa Cruz cypress (Cupressus abramsiana) under the Endangered Species Act (ESA) may be warranted.  The Service will now conduct status reviews for these six species which result in a 12-month finding for each species determining whether the action is, in fact, warranted.

The Pacific Legal Foundation petitioned the Service requesting these actions on December 19, 2011.  The Foundation's petition was based on information contained in the most recent 5-year reviews for these six species, which were completed in 2008 and 2009.

Continue Reading...

Congressman Markey Issues Sharp Criticisms of Draft Interpretation of "Endangered" and "Threatened" Species

Northeast Cottontail Historic and Current Range Map from FWS Fact Sheet 2011As 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.

Services Issue Notice of Controversial New Interpretation of Threatened and Endangered Species

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.

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

 

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

Fish and Wildlife Service Advocates Adaptive Management Approach to Recovery of Mojave Populations of Desert Tortoise

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."

 

 

Ashe Confirmed by Senate, Becomes Fish and Wildlife Service Director

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.

Court Stays Approval of Proposed Settlement to Address Species Backlog

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.

Proposed Settlement Agreement Includes Work Plan to Address Endangered Species Listing Process

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.

Continue Reading...

Comment Period Announced For New Information on Northern Spotted Owl

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.

Settlement Reached to De-List the Gray Wolf

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.

U.S. Fish and Wildlife Service to Evaluate Whether to List Gunnison Sage-Grouse

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.

Pacific Walrus Designated as a "Candidate" for Endangered Species Protection

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.

Federal Government Explains Guidelines Used To List Species as Threatened or Endangered

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.

Fish and Wildlife Service Introduces Plan to Save Native Species in the Florida Keys

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.

Fish and Wildlife Lists Three Mussels and Snails Under the Endangered Species Act

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.

Idaho Terminates State Management of Gray Wolves

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.

Fish and Wildlife Service Releases Draft Revised Recovery Plan for Northern Spotted Owl

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.

Fish & Wildlife Service Seeking Approximately $3 Million for Unprecedented Kill of Endangered Species

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. 

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.

Fish and Wildlife Service Issues Recommendations on Wind Turbines

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. 

Continue Reading...

Pacific Legal Foundation Petitions to Delist the California Gnatcatcher

California GnatcatcherOn 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.

Continue Reading...

Fish and Wildlife Service Finds Delta Smelt Warrants Uplisting from Threatened to Endangered

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." 

 

 

Fish and Wildlife Service Designates 1.6 Million Acres of Critical Habitat for California Red-Legged Frog

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.
 

Greater Sage Grouse Listing Warranted But Precluded

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

Public Meeting for Bull Trout Critical Habitat Expansion in Vancouver, WA

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. 

Successful Court Challenge Results in Second Denial for Coastal Cutthroat Trout

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.

Highly Anticipated Sage Grouse Listing Decision Likely Delayed One Week

Greater Sage Grouse - USGS PhotoAs 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."

Rowan Gould to Serve as Acting Director of Fish & Wildlife Service

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. 

No Critical Habitat Designation for Florida Panther

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.

Fish and Wildlife Service Proposes Significant Increase in Critical Habitat for Bull Trout

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