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

The State of Idaho enacted a law (pdf) this spring asserting that the State has “primacy over the management of fish and wildlife.” The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that “introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho.” The law plainly is intended to provide State officials with an additional tool as it negotiates with federal officials regarding threatened and endangered species. As one reporter who covered the enactment of the law explained,

“In theory, the bill gives the state final say on whether or how endangered or threatened plants and animals are introduced in the state. Reality could be different, though…”

(Capitol Press, May 13, 2013 by Sean Ellis.) The Supremacy Clause, Article VI, clause 2, of the U.S. Constitution, establishes that federal law is supreme provided it is consistent with the Constitution. Together with the federal Endangered Species Act, the Supremacy Clause likely limits the effect of this Idaho law.

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On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines. 

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine Mammal Protection Act, which generally prohibits the unauthorized take of marine mammals.  In addition, eight species (blue whale, humpback whale, fin whale, sei whale, sperm whale, the Hawaiian insular stock of false killer whale, Guadalupe fur seal, and Hawaiian monk seal) are listed as threatened or endangered, and afforded protection under the Endangered Species Act.  The Navy will be consulting with NMFS to further discuss mitigating any impacts on these eight species.

The comment period for the proposed rule ends on March 11.

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Recently, House Representatives John Garamendi (D-Fairfield, CA), Jerry McNerney (D-Stockton, CA), Doris Matsui (D-Sacramento, CA), George Miller (D-Martinez, CA), and Mike Thompson (D-St. Helena, CA) introduced H.R. 6484 (pdf), a bill entitled the SAFE Levee Act. The bill would authorize the Secretary of the Interior to provide assistance to local interests for levee stability improvements within the Sacramento-San Joaquin Delta and require the Secretary of the Interior to carry out a cost-benefit analysis of water conveyance options being considered in the Bay Delta Conservation Planning process.

Efforts to reinforce Delta levees can draw wide support, as this article on the Coalition to Support Near Term Delta Projects suggests (Sacramento Bee, Oct. 16, 2012, by Matt Weiser).  At the same time, levee reinforcement and expansion has the potential to undermine efforts to halt and reverse the destruction of tidal and floodplain areas within the Delta that provide habitat for multiple, at-risk, native species.  Both the Army Corps of Engineers and the Federal Emergency Management Agency have been sued in recent years by parties concerned that their levee and floodplain policies harm at-risk, native species including species listed under the Endangered Species Act.  We reported on the legal actions here and here.

While the sponsors emphasize the provisions of the bill that support levee stability improvements in the Delta, the cost-benefit requirement it would impose with respect to the Bay Delta Conservation Plan water conveyance alternatives is designed to add an additional hurdle to an already complicated regulatory process.  All of the co-sponsors of the bill have spoken out publicly against the Bay Delta Conservation Plan, as this July 25, 2012, press release, entitled "California Representatives Condemn the Bay Delta Conservation Plan, demonstrates.

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Part I: Assembly Bill 2402 (Huffman)

On September 25, 2012, Governor Jerry Brown signed Assembly Bill 2402 and Senate Bill 1148, which make a number of changes to the Fish and Game Code, into law.  AB 2402 was sponsored by Assemblyman Jared Huffman and SB 1148 by Senator Pavely and these bills will implement a number of recommendations that emerged from a Strategic Vision process for the Department of Fish and Game and the Fish and Game Commission that took place during 2011 and 2012.  SB 1148 will be discussed in Part II of this update.

The key provisions of AB 2402 are described below.

• Section 8 changes the name of the Department of Fish and Game the Department of Fish and Wildlife.  Other sections of the legislation make conforming changes to other provisions of the California Code.  Notably, the legislation does not change the name of the Fish and Game Commission.
• Section 10 states that it is the policy of the State of California that “the department and commission use ecosystem-based management informed by credible science in all resource management decisions to the extent feasible,” and “scientific professionals at the department and commission, and all resource management decisions of the department and commission, be governed by a scientific quality assurance and integrity policy, and follow well-established standard protocols of the scientific profession, including, but not limited to, the use of peer review, publication, and science review panels where appropriate."
• Section 11 states that it is the policy of the State of California that the department and commission will seek to create, foster, and actively participate in partnerships to achieve shared goals and integrate natural resource management efforts.  It also states that it is the policy of the State the department and commission will facilitate consistent and efficient review of projects requiring multiple permits.
• Section 12 establishes a Science Institute “to assist the department and commission in obtaining independent scientific review, and recommendations to help inform the scientific work of the department and commission.”  In addition, section 12 requires the department to develop a “scientific integrity policy” to guide the work of the department and commission.
• Section 15 requires the department and commission to develop a strategic plan.  It further provides that the plan will implement proposals from the strategic vision process for the department and commission, any legislation relating to the strategic vision process, and the department’s own proposals for reform.

The legislation raises two questions: will the department and commission actually conform their actions to statements of policy regarding the integrity of scientific information and expedited permitting (or, perhaps, are such statements enforceable) and will the legislature provide the department and commission the funds necessary to implement such policies?  Time will tell.   

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Governor Brown signed a bill into law that generally makes it unlawful to permit or allow a dog to pursue a bear or bobcat at any time. The bill, introduced as SB 1221 by State Senator Ted Lieu, is intended to curb the use of dogs to hunt bears or bobcats.  Debate over the bill divided both houses of the California legislature.  David Siders reported that "[t]he legislation pitted wildlife advocates against hunters at the California Capitol – the former raising concerns about the humane treatment of animals, the latter about urban elitism" (Sacramento Bee, Sept. 27, 2012).

The bill to ban use of dogs was introduced in the aftermath of a controversy involving Dan Richards, a member of the California Fish and Game Commission.  The Commission is composed of members appointed by the Governor and confirmed by the Senate.  It manages California's fish and wildlife resources by, among other things, regulating fishing and hunting and making decisions whether to list species as threatened or endangered under the California Endangered Species Act.

In early 2012, it came to light that Commission Richards, who was at the time serving as the Commission's President, killed a mountain lion on a hunting trip in Idaho.  The action was legal in Idaho, though California prohibits sports hunting of mountain lions within its borders.  In response to the revelation, there was a substantial outcry for Commission Richards to resign but also a counter response in defense of his conduct.  Columnist Dan Walters covered the controversy at the time (The Modesto Bee, Feb. 29, 2012).  Richards remains a member of the Commission though he is no longer President.

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