Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.
For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia masoni), and slenderclaw crayfish (Cambarus cracens)—under the ESA. According to CBD, the species, found in Alabama, Georgia, Tennessee, Virginia, North Carolina and South Carolina, are at risk of extinction due primarily to water pollution and dams.
CBD also filed suit last week to force a final listing decision with respect to the black-backed woodpecker (Picoides arcticus) in California, Oregon, and South Dakota, the San Bernardino flying squirrel (Glaucomys sabrinus californicus) in southern California, and the Ichetucknee siltsnail (Cincinnatia mica) in Florida.
Finally, CBD filed suit challenging the recent listing of the lesser prairie chicken as threatened under the ESA. As we reported here, the Service announced the final rule listing the species in March 2014. Because the species was listed as threatened, rather than endangered, the final rule includes section 4(d) exemptions, which allow for incidental take of the species associated with activities conducted pursuant to approved habitat conservation plans. CBD is challenging the final rule, arguing that the serious threat of extinction to the prairie chicken across its entire range warrants listing the species as endangered, rather than threatened.
Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.
On May 12, 2014, Appellees Kern County Water Agency, Coalition for a Sustainable Delta, State Water Contractors, and Metropolitan Water District of Southern California filed a petition for rehearing en banc, seeking further review of the recent Ninth Circuit decision relating to the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. San Luis & Delta-Mendota Water Authority v. Jewell, No 11-1587 (9th Cir. March 13, 2014). Two other petitions for rehearing en banc were also filed the same day by Intervenor-Appellee California Department of Water Resources and Appellees San Luis & Delta Mendota Water Authority and Westlands Water District.
On May 13, 2014, the States of Nebraska, Alaska, Kansas, Oklahoma, South Carolina, and Wyoming jointly filed an amicus brief (pdf) in support of the petitions. On May 22, 2014, four additional amici curiae briefs were filed supporting en banc review. Specifically, briefs were filed by (1) the National Hydropower Association, Northwest Hydroelectric Association, and Northwest RiverPartners (pdf), (2) Conaway Preservation Group (pdf), (3) Farm Credit West, CoBank, American Farm Bureau Federation, California Farm Bureau Federation, Western Growers Association, and National Council of Farmer Cooperatives (pdf), and (4) Association of California Water Agencies, Friant Water Authority, Southern California Water Committee, Northern California Water Association, California Building Industry Association, and California Forestry Association (pdf).
Among other things, the petitions assert that en banc review is warranted because (1) the panel excused FWS from basing its actions on the best available scientific information, as is expressly required by the Endangered Species Act, and (2) the panel held that FWS need not consider the effect of its actions on third parties, as is required by applicable regulations. According to petitioners, the divided-panel ruling conflicts with the precedent of the Supreme Court, the Ninth Circuit, and other circuits.
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.
On May 7, 2014, a U.S. District Court for the Eastern District of North Carolina enjoined (pdf) coyote hunting in five North Carolina counties that provide a recovery area for the red wolf (Canis rufus), a species listed as endangered under the Endangered Species Act (ESA). In Red Wolf Coalition v. North Carolina Wildlife Resources Commission, No. 2:13-CV-60-BO (N.D.N.C. May 7, 2014), plaintiffs sought to enjoin the North Carolina Wildlife Resources Commission (Commission) from issuing permits for coyote hunting in an area spanning 1.7 million acres. The land serves as a recovery area for the red wolf, a species that was once thought to be extinct in the wild and that the U.S. Fish and Wildlife Service reintroduced in 1987. Current population estimates put the number of red wolves at between 90 and 110 in the wild.
Plaintiffs claimed that the Commission’s issuance of permits for coyote hunting causes the unlawful take of red wolves in violation of section 9 of the ESA. Plaintiffs alleged that by issuing coyote hunting permits, the Commission significantly increases the likelihood of red wolf deaths due to gunshot wounds, of which there were nine in 2013, because coyotes and red wolves look quite similar. Plaintiffs also asserted that coyote hunting causes harm and harassment to red wolves through the disruption of breeding. The court agreed with the plaintiffs, noting that “[e]ven experts have difficulty distinguishing between coyotes and red wolves when observing them in the field,” and preliminarily enjoined the Commission from authorizing coyote hunting in the red wolf recovery area.
Notably, the court dismissed the claim against the Commission, a state agency, under the Eleventh Amendment, which bars suits against non-consenting states by private individuals in federal court. The court upheld the claims against the Commission’s individual commissioners, however, and issued the injunction based on those claims. The court also rejected the Commission’s argument that red wolves in the North Carolina recovery area should be afforded fewer protections than other species listed under the ESA because they are classified as a “non-essential experimental population,” reasoning that such a distinction would “put the rights of hunters and private landowners above Congress’ clear mandate to prevent the extinction of the red wolf and reintroduce the species to the wild.”
The court will reconsider the preliminary injunction in 180 days.
In Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-00431, environmental groups challenged the operation of the Sandy Hatchery along the Columbia River in Portland, Oregon. Among other things, plaintiffs argued that operation of the hatchery violates the Endangered Species Act (ESA) by causing take of listed fish species, including the Lower Columbia River Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River steelhead. Plaintiffs alleged the hatchery causes take due to competition from hatchery fish, introduction of disease, and genetic introgression.
In its decision (pdf) issued January 16, 2014, the U.S District Court for the District of Oregon agreed, finding the National Marine Fisheries Service (NMFS) failed to provide a reasoned analysis for its determination that continued operation of the hatchery would not jeopardize the listed species. The court also invalidated the incidental take statement issued for the hatchery, finding the methodologies used by NMFS to set the take limit and to determine the trigger for reconsultation were not supported by the record.
The court also held that NMFS violated the National Environmental Policy Act by approving hatchery genetic management plans for the hatchery without preparing an environmental impact statement.
The court ordered the parties to confer regarding remedies, including with respect to the 2014 release of hatchery smolts. The parties are scheduled to report back to the court tomorrow, January 22, 2014.
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.
In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico. The press release states that under the two agreements the Fish and Wildlife Service will increase the wolf's recovery territory, stop capturing wolves entering the two states from Mexico, and finalize a rule to allow direct release of Mexican gray wolves into New Mexico. Under one of the agreements, CBD expressly reserved the right to recover "litigation costs including attorneys' fees." This may raise some red flags for certain individuals, as the recovery of attorneys' fees under the citizen suit provisions of the Endangered Species Act has been a controversial issue of late, particularly when entities like CBD are involved. See our June 4, 2013, March 29, 2013, and February 28, 2013 posts for a discussion of the issue.
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.
The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA). We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here. At the same time that the court stayed the injunction pending the outcome of the appeal, it expedited the appeal.
On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species, it violated the Endangered Species Act and Administrative Procedure Act. A short discussion of the history leading up to these settlements can be found here. Plaintiffs allege in the complaint that "[t]he Service has abdicated a mandatory process based on best available science, public input and independent peer review in favor of a private settlement that lets two advocacy groups dictate the order, and pace of its statutorily required decision making process." As one example, plaintiffs allege that the agreements prohibit the Service from making a "warranted but precluded finding or to continue to assess information and conservation efforts that would lead to a warranted but precluded finding." While both settlement agreements do set forth procedures and deadlines for the Service's review, the agreements also state that "[t]he Agreement shall not (and shall not be construed to) limit or modify the discretion accorded to Defendants by the ESA, the Administrative Procedure Act ('APA'), or general principles of administrative law with respect to the procedures to be followed in making any determination required herein or as to the substance of any such determination. No provision of this Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendants take any action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural."
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.
Current Adminstration Agrees to Vacate Almost 4 Million Acres of Critical Habitat for the Marbled Murrelet in the Face of Opposition
On Tuesday October 24, 2012, several conservation groups wrote a letter to President Obama expressing concerns about an agreement that the Obama Administration entered into with the American Forest Resource Council, Carpenter Industrial Council, and Douglas County, Oregon (Plaintiffs), to remove critical habitat for the marbled murrelet (Brachyramphus marmoratus), a seabird listed as threatened under the Endangered Species Act (ESA). The agreement still needs approval by the United States District Court for the District of Columbia.
Plaintiffs sued the U.S. Fish and Wildlife Service and other federal defendants in the United States District Court for the District of Columbia. Plaintiffs alleged that the Service violated the ESA by “unlawfully designating critical habitat for the California, Oregon, and Washington population of the marbled murrelet.”
The agreement explains that since 1996, when the Service designated critical habitat for the murrelet, there have been two U.S. Court of Appeals for the Ninth Circuit’ decisions (Arizona Cattle Growers v. Salazar, 606 F.3d 1160 (9th Cir. 2010), Home Builders Ass’n v. Salazar, 613 F.3d 983 (9th Cir. 2010), and a U.S. District Court for the District of Columbia decision (Cape Hatteras Access Preservation Alliance v. U.S. Department of Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), that have made the Service reconsider the critical habitat designation for the murrelet.
Defendant Intervenors opposed the agreement and argued that the consent decree is not “fair, reasonable or in the public interest.”
The Service asserts that it does not believe a vacatur of the critical habitat designation will significantly impair the conservation of the murrelet. The agreement notes that other regulatory mechanisms provide substantial protection for the murrelet.
Critics assert that the agreement, entered into to resolve the claims without extending litigation, is an aberration on the part of the Service because there have been other cases where the courts have held a designation of critical habitat illegal but nonetheless generally left the habitat in place while the illegality is fixed.
On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf).
Specifically, the court held that the Service's "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not specifically enforceable by the Service, and the BiOp failed to account for the impacts on listed species of withdrawing 337.8 million gallons of groundwater from 64 wells along the pipeline's right-of-way. Because the Bureau of Land Management's (BLM's) record of decision and grant of right-of-way for the project relied on the flawed BiOp, the court ordered that BLM's record of decision be set aside as well.
The Ruby Pipeline is a 42-inch diameter natural gas pipeline that spans 678 miles from Wyoming to Oregon, crossing over 1000 waters, including 209 rivers and streams that support federally endangered and threatened fish species. The Service determined that the project would adversely affect nine listed fish species and five areas of designated critical habitat, thus, formal consultation with the Service was required under section 7 of the Endangered Species Act (ESA).
In the court's view, the main issue presented was whether, under the ESA, the Service could rely on measures designed to contribute to the recovery of the affected species if the Service could not enforce those measures under the ESA. In the course of the consultation, the Service provided Ruby with an "ESA Mitigation and Conservation Action Plan Proposal" (CAP) and requested that it be included in the final biological assessment. However, FERC, the federal consulting agency for the project, objected to including the CAP in the project description.
Ultimately, Ruby and the Service entered into an agreement under which Ruby would implement or fund, in whole or in part, the mitigation measures in the CAP, and both FERC and BLM made implementation of the CAP measures enforceable conditions of their respective project approvals. The Service then considered the Conservation Action Plan measures as background "cumulative effects" that were "reasonably certain to occur" in reaching is "no jeopardy" and "no adverse effect" determinations in the BiOp. However, the Service did not incorporate the measures in the terms and conditions of the incidental take permit, so only FERC or BLM, but not the Service, could enforce the CAP measures.
The Ninth Circuit held that this is unlawful for two reasons. First, by not incorporating the measures in the Conservation Action Plan as part of the project description, those measures could not be enforced by the Service, failure to implement them would not trigger the duty to re-initiate formal section 7 consultation and possibly invalidate the incidental take statement, and it would evade the potential for ESA citizen suits to enforce the measures. Although the measures could be enforced by FERC or BLM under other statutes and regulatory schemes, the court held that "Congress did not contemplate leaving the federal government's protection of endangered and threatened species to mechanisms other than those specified by the ESA, the statute designed to accomplish that protection." (Slip Op. at 12735.) In short, the Service could not rely on the CAP measures in the BiOp because those measures fail to "ensure" that the federal action would not jeopardize the continued existence of the listed species or adversely modify their designated critical habitat.
Second, the court held that the Service miscategorized the CAP measures as "cumulative effects." Instead, it held that the CAP measures should have been included as part of the project because they are "unequivocally interrelated" with the FERC authorization since Ruby was required to implement them only after FERC issued its approval and all legal challenges to it had been resolved. Thus, the court set aside the BiOp and incidental take statement because the Service's reliance on the CAP measures as "cumulative effects" was arbitrary and capricious.
The court also held that the BiOp failed to consider whether the withdrawal of 337.8 million gallons of groundwater from 64 wells along the right-of-way during construction may adversely affect listed species or adversely modify critical habitat. The court rejected the defendants' argument that the groundwater withdrawals at many different locations along the 678-mile right-of-way would have a de minimis effect on surface water flows because it found evidence in the record that indicated the groundwater withdrawals may, in some instances, have more than a de minimis effect on stream flows and, by extension, the listed fish.
Finally, the court rejected plaintiffs arguments that the BiOp improperly relied on a "dry-ditch" construction method to calculate take levels, and that the BiOp should not have authorized take of "all eggs and fry" of threatened Lahontan cutthroat trout (Oncorhynchus clarkii henshawi) near 18 water crossings. Significantly, the court held that the Service did not have to expressly explain why numeric take limits were impracticable because it is "self-evident" that it would be impracticable to set numeric take limits for the very large number and minute size of fish eggs and fry.
Previously, we reported on the latest chapter in the decade-long dispute between environmental groups, federal agencies, and pesticide manufacturers over the impact of pesticides on the Pacific Northwest’s listed salmon populations. The next chapter is scheduled for October 24, 2012, when the U.S. Court of Appeals for the Fourth Circuit will hear oral argument in DowAgrosciences LLC v. National Marine Fisheries Service. In that case, a consortium of pesticide manufacturers are arguing that a Biological Opinion (BiOp) issued by the National Marine Fisheries Service (NMFS) is flawed. As we reported here, the lower court upheld the BiOp.
The BiOp at issue concluded that the continued authorization and use of certain pesticides in the Pacific Northwest is jeopardizing the continued existence of a number of protected salmonid species. This conclusion in the challenged BiOp -- along with the accompanying reasonable and prudent alternative -- is a cornerstone for the environmental group’s case in Northwest Coalition for Alternatives to Pesticides v. EPA. Thus, if the Fourth Circuit decides that the BiOp is, in fact, flawed, this could prove to be a decisive victory for the pesticide manufacturers.
Ninth Circuit Reverses Decision and Holds Forest Service "Approval" of Suction Dredge Mining Notice of Intent Triggers Duty to Consult
On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA).
The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action. Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.Continue Reading...
In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA). In doing so, the Court followed the Ninth Circuit's reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate. This distinction is important to litigants for a number of reasons. Among them is the fact that litigation under the APA is governed by the record review doctrine and the ability to conduct discovery in such litigation is limited. In contrast, litigation under the ESA's citizen suit provision is not constrained in this way. An additional important distinction is the fact that the ESA citizen suit provision provides for recovery of fees by a prevailing party whereas the APA does not include an analogous fee shifting provision.
A judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River. On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam. NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016. The Humane Society challenged NMFS's decision, claiming that NMFS erred in determining that the sea lion's predation on the listed salmonids was a significant obstacle to their recovery. U.S. District Judge James E. Boasberg denied the Humane Society's request to stop the program pending the outcome of the litigation. Judge Boasberg did, however, reduce the total annual amount of sea lions authorized to be killed from 92 to 30. Officials from the Oregon Department of Fish and Wildlife have stated that they did not anticipate the removal of more than 30 sea lions in any one year despite the higher authorization.
As we previously reported, in October 2011, a NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted to recommend that NMFS permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead. NMFS had suspended its program in July 2011 in the wake of an agreement (see earlier post) between wildlife advocates and the two states to temporarily suspend lethal sea lion removal as well as legislation introduced in the House of Representatives that would permit the states to remove sea lions without complying with the MMPA (see prior post regarding H.R. 946).
The Humane Society's effort to stop the removal of the California sea lions is their third since NMFS first authorized the program in 2008.
On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of the FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.
In 2004, the United States District Court for the Western District of Washington ruled (pdf) that FEMA must initiate consultation with NMFS on the impacts of its implementation of the NFIP on Puget Sound Chinook salmon. In response, FEMA prepared a biological evaluation, which concluded that the NFIP is not likely to adversely affect listed salmon or steelhead species in the state of Washington. In a biological opinion (pdf) issued in 2008, NMFS disagreed, concluding that "the proposed action is likely to jeopardize the continued existence of Puget Sound Chinook salmon, Puget Sound steelhead, Hood Canal summer-run chum salmon, and Southern Resident killer whales, and is likely to adversely modify Puget Sound Chinook salmon, Hood Canal summer-run chum salmon, and Southern Resident killer whale critical habitat." Together with the jeopardy and adverse modification determinations, NMFS issued a RPA that included seven separate elements.
In its motion (pdf), National Wildlife Federation alleges the FEMA failed to implement six of the seven components of the RPA that accompanied the biological opinion. NWF argues that "seven years after this Court found FEMA in violation of the ESA, and three years after NMFS found the NFIP was causing jeopardy, FEMA continues to implement the NFIP mostly unchanged." Numerous local jurisdictions have intervened in the lawsuit, and an advocacy group for property owners filed an amicus brief (pdf) opposing plaintiff's motion. At the same time that these groups are defending FEMA's compliance with the biological opinion, they are critical of the RPA, for example, arguing that it has inherent flaws and its implementation would lead to "unnecessary over-regulation of floodplain areas."
Beyond Washington, where this case is unfolding, FEMA continues to resist the legal obligation to consult under section 7(a)(2) of the Endangered Species Act despite having lost or settled numerous lawsuits for failure to consult. In addition, the agency has made no meaningful effort to meet its obligations under section 7(a)(1) of the Act. Instead, even under the Obama Administration, FEMA has purposefully disregarded its obligation to comply with various federal laws, including the Endangered Species Act and Freedom of Information Act.
FEMA Settles Citizen Suit; Agrees to Consult on Floodplain Program's Impacts on Listed Fish in the Delta
On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered species in the Sacramento-San Joaquin River Delta (Delta).
Under the NFIP, FEMA makes subsidized flood insurance available to property owners in communities that elect to participate in the NFIP by adopting floodplain management plans intended to reduce future flood risks. The citizen suit was premised on the claim that FEMA's implementation of certain discretionary aspects of the NFIP encourages placement of fill in the floodplain and construction and maintenance of levees to remove land from the floodplain, thus destroying habitat and impairing ecosystem services that listed salmon (Oncorhynchus tshawytscha), steelhead (Oncorhynchus mykiss), and delta smelt (Hypomesus transpacificus) rely upon in the Delta.
Floodplains provide side channel habitat for listed salmon and other ecosystem services, such as contributing to the productivity of various components of the food web, including phytoplankton, copepods, and other organisms. Destruction of this habitat has been particularly harmful to the federally listed Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt.
In the Delta, the flood zone also encompasses seasonal and perennial tidal wetlands. According to the United States Geological Survey, more than 95 percent of those Delta wetlands have been destroyed and new development threatens the remaining tidal wetlands. Indeed, one of the major focuses of the Bay Delta Conservation Plan (BDCP) is the restoration of tens of thousands of acres of tidal wetlands that have previously been removed from the flood zone via fill and levee construction.
The settlement comes on the heals of FEMA's largely unsuccessful motion for partial summary judgment, previously blogged about here. It also represents the latest in a string of court orders and settlements in similar lawsuits that have been filed against FEMA in Florida, Washington, Oregon, and New Mexico in the past several years. In each instance, FEMA either lost the lawsuit and was instructed to consult by a federal court or settled the lawsuit prior to a decision and agreed to engage in consultation.
On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy. This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations. That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).
The Corps' policy calls for a vegetation free zone along levees that includes a 15-foot setback for trees and shrubs. According to the press release by DFG, the policy is in violation of the federal Endangered Species Act, the National Environmental Policy Act, and the federal Administrative Procedure Act, because it "fails to account for regional variations among levees" and will negatively impact riparian habitat that "is essential for several endangered species including Chinook salmon, Central Valley steelhead, Valley elderberry longhorn beetle, riparian brush rabbit, Western yellow-billed cuckoo and Swainson's hawk." The press release also states that compliance with the policy may "cost up to $7.5 billion and divert funds from more significant levee deficiencies like seepage and erosion."
The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities. The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.
The Government's case against each defendant was similar. Defendants operated oil reserve pits on their respective sites. Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well." North Dakota state sets forth requirements for operation and remediation of reserve pits. Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations. On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.Continue Reading...
In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt. The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action. Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.
Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith. At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed. The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.Continue Reading...
Federal Court Denies Cross Motions for Summary Judgment in Whooping Crane Case; Matter Heads to Trial
The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter, which resulted in take of the species.
In their cross motion for summary judgment, Defendants argued that Plaintiffs lack standing. But the court analyzed each element of standing – injury-in-fact, causation, and redressability – and denied Defendants’ motion, stating that “the evidence presented by Plaintiff, taken as true, establishes a causal link between Defendants' conduct and Plaintiff's injury.” At the same time, the court denied Plaintiff’s motion for partial summary judgment on the issue of standing holding that “issues of material fact remain as to whether low flow conditions caused a take of Whooping Cranes.”
Defendants also argued that the Eleventh Amendment bars Plaintiffs’ claim, but the court held that Plaintiffs’ suit against State officials for prospective relief falls within an exception to the Eleventh Amendment established by the Supreme Court.
With respect to the issue of liability under section 9 of the ESA for take of whooping cranes, the court rejected Defendants’ arguments that State regulators cannot be held liable. The court noted that numerous courts have held that regulators can be held liable for take of listed species. The court also rejected Defendants’ argument that Plaintiffs failed to present evidence of take sufficient to overcome a motion for summary judgment, opining that “there are genuine issues of fact as to Defendants’ actions being the proximate cause of a ‘take’ of Whooping Cranes.” The case went to trial beginning December 5, 2011.
On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here. In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment.
As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range. Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.
Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place. Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.
In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.
The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted. The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species. Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.Continue Reading...
Recently, we reported on an unusual bad faith finding made by the United States District Court for the Eastern District of California in litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt (Hypomesus transpacificus). Thus far, the Department of the Interior has reacted to the bad faith finding by expressing its confidence in agency personnel involved in the matter. Mike Taugher of the Contra Costa Times reported that Department of the Interior spokesman Adam Fetcher issued the following statement: "We stand by the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science." He also reported that, in an internal agency communication, the Service's Regional Director Ren Lohoefener has given the relevant Interior personnel his vote of confidence.
Congress does not appear to be satisfied with the Obama Administration's handling of this divisive matter. In a letter (pdf) to Secretary Salazar, Democratic Congressman Jim Costa characterized the conduct of the Department of the Interior's personnel as "nothing less than outrageous." Republican Congressman Devon Nunes called for an immediate investigation into Secretary Salazar and other Department of the Interior personnel in response to the court's ruling. Even prior to the court's bad faith finding, in response to the court's decision to issue an injunction this fall (which we reported on here), Senator Feinstein stated that it is increasingly clear "that key biological opinions done by the Department of the Interior are not based on sound science."
On September 16, 2011, in litigation challenging a biological opinion and reasonable and prudent alternative issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt, the United States District Court for the Eastern District of California made a finding of agency bad faith by the U.S. Fish and Wildlife Service. The finding was incorporated into the court's ruling from the bench on motions to stay filed by federal defendants and intervenor environmental groups after the court issued a decision on August 31, 2011, enjoining implementation of a component of the reasonable and prudent alternative referred to as the Fall X2 Action. That Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.
The motions for stay were filed at the same time defendants filed notices of their intent to appeal the court's decision to the United States Court of Appeals for the Ninth Circuit. Plaintiffs the State of California, public water agencies, and agricultural interests, who sought the injunction of the Fall X2 Action, opposed the motion to stay.
With respect to the issue of bad faith, the court made extensive findings including the following statement:
I'm going to be making a finding in this case of agency bad faith. There is simply no justification. There can be no acceptance by a court of the United States of the conduct that has been engaged in in this case by these witnesses. And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.
The court also indicated its intent to lift the injunction until October 16, 2011, on the grounds that during that period plaintiffs would suffer no injury.
On August 25, 2011, the United States Court of Appeals for the Ninth Circuit denied (pdf) an emergency motion for an injunction pending appeal to re-instate Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. Environmental groups appealed the case to the Ninth Circuit on August 13, 2011, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010.
In the emergency motion, the environmental groups asserted (pdf), among other things, that the legislation violated the separation-of-powers clause of the United States Constitution because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. The Service asserted (pdf) that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states.
The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. According to the environmental groups, Idaho plans to start its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.
FEMA's Administration of the National Flood Insurance Program Not Exempt from Section 7 Consultation
On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.
In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs allege that FEMA's administration of the NFIP in participating communities in and upstream of the Sacramento-San Joaquin Delta (Delta) may affect three listed salmonid species and the delta smelt. According to plaintiffs, FEMA's administration of the NFIP encourages development in and adjacent to the 100-year floodplain -- an area that includes designated critical habitat for listed salmonids, and that provides water quality benefits that may affect the salmon and smelt. In addition, plaintiffs allege that FEMA has the discretion to modify its ongoing implementation of the NFIP in the Delta communities to benefit the listed species. Thus, FEMA is required to enter consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services).
Among other things, FEMA argued that it does not retain discretion to modify its implementation of its floodplain mapping under the NFIP, and that issuing Letters of Map Revision based on placement of fill (LOMR-Fs) cannot have any impact on listed species.
The court rejected these arguments, holding that FEMA's own alteration of how it implements the NFIP in the Puget Sound region in Washington State for the benefit of listed salmonids demonstrates FEMA's ongoing discretionary involvement and control, and holding that other evidence in the record shows there is a question of material fact whether issuing LOMR-Fs may affect listed species or their critical habitat in the Delta by encouraging development that alters the regulatory, 100-year floodplain. Thus, the court denied, in part, FEMA's motion for partial summary judgment.
The court, however, found the reasoning in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) persuasive on the question whether FEMA has the discretion to withhold or condition issuance of flood insurance policies to applicants in participating communities that have already met certain minimum eligibility requirements. Thus, the court granted FEMA's motion in this limited respect, holding that by statute, FEMA must issue flood insurance to persons in eligible participating communities.
Nevertheless, the court's rejection of FEMA's other legal arguments leaves open the possibility that FEMA will be required to consult with the Services with respect to its implementation of the NFIP in the Delta communities.
In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).
The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended delisting. That recommendation was not based on the recovery plan criteria but on a reconsideration of the five criteria set out in section 4(a)(1) of the Endangered Species Act (“ESA”) for listing a species. The final delisting rule (pdf) was published in 2008.
Plaintiffs, a group of six environmental organizations and one individual, argued that when FWS establishes recovery criteria for a species in a formally adopted recovery plan then FWS is required to abide by those criteria in any delisting decision until such time as the recovery plan is amended. FWS countered that the ESA says a species can be delisted based on reconsidering the five ESA factors used to list a species and that a recovery plan is only a guidance document.
Rejecting FWS’ argument, the Court first found the ESA requires FWS to “develop and implement” recovery plans. Thus, if the recovery plan sets out delisting standards, FWS must consider both those standards as well as the five statutory listing standards. The Court next found the FWS delisting rule had ignored two of the recovery plan delisting standards. The Court held that recovery plans can only be amended by notice and comment procedures and FWS had not done so. FWS’ argument that it had complied with the intent of the recovery plan fell on deaf ears.
The Court vacated the delisting rule until the delisting was done in compliance with the delisting factors and the recovery plan. If FWS wants to change the factors in the recovery plan, it must do so using notice and comment procedures. FWS has reinstated (pdf) the listing rule.
The National Marine Fisheries Service (“NMFS”) has suspended its letter of authorization (“LOA”) under Section 120 of the Marine Mammal Protection Act (“MMPA”) allowing the States of Oregon and Washington to lethally remove California sea lions caught eating endangered salmon and steelhead in the Columbia River. NMFS cited pending litigation in Federal court and limited sea lion activity for its decision, and invited the states to renew their request for an LOA in 2012. NMFS’ decision comes in the wake of an agreement (see earlier post) between wildlife advocates and the two states to temporarily suspend lethal sea lion removal as well as legislation introduced in the House of Representatives that would permit the states to remove sea lions without complying with the MMPA (see prior post regarding H.R. 946).
On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species. The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues. The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.
The Service has been subject to a barrage of litigation regarding the listing of species. Petitions to list more than 1,000 species have been filed since 2007, and this has created an enormous backlog for species awaiting listing determinations. Dan Ashe, Director of the Service, stated, "This work plan will allow the Service to more effectively focus our efforts on providing the benefits of the ESA to those imperiled species most in need of protection."
As we previously reported, the Service and WildEarth had entered into an settlement agreement in May 2011 (May Agreement) 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, WildEarth agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program. WildEarth also agreed to limit the amount of petitions it submits each fiscal year for the duration of the May Agreement. The court stayed its approval of the proposed May Agreement when CBD opposed approval after being left out of the negotiation process. CBD had filed many of the original lawsuits for species covered by the May Agreement.
The new work plan modifies some of the deadlines imposed by the May Agreement with WildEarth. It sets deadlines for 40 species, while incorporating the framework set in the May Agreement for how the Service will address decisions related to hundreds of other species.
Court Upholds the Fish and Wildlife Service's Interpretation of "Endangered Species" and Decision to List the Polar Bear as Threatened
In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."
As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows. According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA. But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing." In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal. The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."
Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views." Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science." Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."
Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all. Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.
Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.
While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened. See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008). As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA to impose strict limits on emissions of greenhouse gases (GHGs). But a controversial rule issued by the Department of the Interior under section 4(d) of the ESA placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions. As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule. Instead, the Obama Administration has called for new legislation to address GHG emissions, and EPA may assert its authority under the Clean Air Act to regulate GHGs.
The House Committee on Natural Resources is set to hold hearings on a bill that will allow for the lethal removal of California sea lions (Zalophus californianus) caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The Endangered Salmon Predation Prevention Act (H.R. 946), introduced in March 2011, would allow the states of Washington and Oregon, and four local tribal organizations, to get year-long leases to lethally remove a limited number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to Representative Doc Hastings (R-Wash.), the Chairman of the Committee on Natural Resources, “[a]s Northwest residents spend hundreds of millions of dollars each year to protect salmon, California sea lions camp out at Bonneville Dam and gorge themselves on endangered fish. . . . With all other methods exhausted, lethal removal of the most aggressive sea lions is often the only option left to deter predation, help protect endangered salmon and recoup more of our region’s substantial investment in salmon recovery.”
The legislation follows a May 2011 agreement reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, the National Marine Fisheries Service (NMFS), and the states Oregon and Washington to temporarily suspend the lethal removal of the sea lions until September 2011. The agreement was due to litigation pending in response to the recent NMFS authorization to resume the lethal removal of the sea lions.
In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.
Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.Continue Reading...
The states of Oregon and Washington have agreed to suspend the lethal removal of California sea lions caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The sea lion removal program had been implemented to reduce the number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to the National Marine Fisheries Service (NMFS), the sea lions have a significant effect on the ability of the fish stocks to recover. The agreement was reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, NMFS, and the states Oregon and Washington.
Last November, the United States Court of Appeals for the Ninth Circuit held that NMFS had violated the Marine Mammal Protection Act by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. After addressing the problems identified by the Ninth Circuit, NMFS authorized the states to resume lethally removing certain sea lions earlier this month.
The Humane Society and the Wild Fish Conservancy filed suit on May 20, 2011 challenging NMFS’s recent authorization. According to the Wall Street Journal, the Humane Society had expected to pursue a temporary restraining order, but the parties agreed to the stipulation so that the case could be heard on the merits, rather than on an emergency basis. (Wall Street Journal, May 25, 2011, by Joel Millman.) The agreement suspends any removal of sea lions through September 2011.
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.
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...
Ninth Circuit Holds that Forest Service "Approval" of a Notice of Intent to Conduct Suction Dredge Gold Mining Does Not Trigger a Duty to Consult
On April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act. Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).
Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action." Id. at *11.
The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities. But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."
The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7.
A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'" Id. at *6-7. In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended. Instead, the NOIs were agency inaction, not "agency action" that could trigger a duty to consult under section 7.
The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits. Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources. Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources. Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision. It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]." Id. at *7.
In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI." Id. at *15. In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways. First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining." Id. at *23. Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges. Id. at *24. And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest. Id.
The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).
It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.Continue Reading...
Lawsuit Challenges Designation of 187,157 Square Miles of Land and Sea as Polar Bear Critical Habitat
As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.
Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).
Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade association claims will cost tens of millions to billions of dollars in project delays and administrative costs--costs that AOGA says the Service unlawfully failed to take into consideration in the final rule.
Specifically, AOGA claims that the Service violated the ESA by:
- Improperly designated areas that lack the physical and biological features "essential to the conservation of the species";
- Improperly including in critical habitat vast areas that lack any present or foreseeable need for special management;
- Underestimating the economic impact of the designation by tens of millions, if not billions of dollars;
- Failing to exclude areas from the designation where the relative benefits of exclusion outweigh the relative benefits of inclusion;
- Failing to base the designation on the best scientific data available; and
- Enacting a "no disturbance zone" extending one mile around all designated barrier island habitat.
Similar suits are expected to follow, since the State of Alaska and a coalition of Native American groups also filed 60-day notices to sue the Service over the designation.
On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.
The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized rate. In 2001, the Sierra Club, Southwest Environmental Center, and WildEarth Guardians, formerly known as Forest Guardians, filed a lawsuit (pdf) in federal court alleging that FEMA was violating section 7 of the federal Endangered Species Act ("ESA") by failing to consult on the impacts of the NFIP on ESA-listed species. In 2002, the parties executed a stipulated settlement agreement (pdf) obligating FEMA to, among other things, prepare and submit a biological assessment to the Service on the effects of the NFIP and initiate consultation with the Service "as expeditiously as possible." In 2009, WildEarth Guardians filed a second lawsuit (pdf) seeking to enforce the terms of the 2002 settlement agreement, and FEMA's compliance with section 7 of the ESA. Section 7 requires a federal agency to, among other things, consult to ensure that any action "authorized, funded, or carried out" by the agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical habitat]."
Under the terms of the 2011 settlement agreement, FEMA has 365 days to send the Service a written request to initiate formal consultation.
This is the second ESA lawsuit that FEMA has settled this year. See our post of January 28, 2011. Two similar lawsuits are currently pending in the District of Arizona and the Eastern District of California. See our post of July 14, 2010.
On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population. Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.
The species has a range from Monterey Bay, California to Prince William Sound, Alaska, and there are two known, landlocked populations. Across much of that range, longfin smelt are abundant. But abundance data indicate that the San Francisco Bay-Delta population has declined substantially.
In 2009, the Service issued a 12-month finding (pdf) concluding that the Delta population of the longfin smelt did not meet the definition of a distinct population segment, and therefore did not qualify for listing under the federal Endangered Species Act. Shortly thereafter, the Center for Biological Diversity and The Bay Institute filed a lawsuit challenging the Service's decision. Today's settlement provides the Service with an opportunity to review the petition and make a determination in light of the best scientific and commercial data currently available.
In March 2009, the California Fish and Game Commission voted to list the longfin smelt as a threatened species (pdf) under the California Endangered Species Act. The California Department of Fish and Game prepared a status review of the species recommeding state listing in January 2009, which is available here.
On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management Act (FLPMA), National Historic Preservation Act (NHPA), and National Environmental Policy Act (NEPA). With respect to NEPA, the plaintiff alleged that defendants failed to determine whether historical or cultural resources occur on the project site and the National Environmental Policy Act because the Final Environmental Impact Statement (FEIS) does not adequately consider cultural impacts on the Tribe from destruction and loss of tribal archaeological sites and the proposed-federally listed flat-tailed horned lizard.
The Quechan Tribe’s Reservation lands run along the Colorado River near Yuma, Arizona; however, according to the complaint, the Tribe historically occupied lands spanning present-day Arizona and southern California, including the project site between Octotillo and El Centro. The flat-tailed horned lizard plays a significant role in the Quechan Tribal creation story.
The complaint also challenges BLM’s approval of an amendment to the California Desert Conservation Area (CDCA)—BLM’s resource management plan covering 25 million acres within southern California—allowing for solar energy and a right-of-way grant to lease land managed by the BLM for construction and operation of a solar electricity generation facility. The complaint alleges that the BLM’s approval of the CDCA amendment violates the Federal Lands Policy and Management Act because the CDCA designates the project site as “Class L” lands for lower intensity uses and BLM failed to evaluate or consider whether the project would constitute a “lower intensity use.” The complaint also alleges the FEIS fails to adequately consider cumulative impacts from other planned solar projects.
In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.
In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species." As previously discussed here, the Fish & Wildlife Service took the position in the Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation that "endangered species" means "in imminent danger of extinction," and argued that although the word "imminent" does not appear in the statutory definition, the structure and language in the statute compels such an interpretation.
In a 26-page Memorandum Opinion (PDF), the court concluded that "the statute is either silent or ambiguous with respect to the precise question at issue . . . ," and, contrary to the Fish & Wildlife Service's claim, "[t]he definition of an "endangered species" is . . . inherently ambiguous." The court also rejected the argument that the legislative history supports the Fish & Wildlife Service's interpretation.
The court therefore remanded the Polar Bear Listing Rule to the Fish & Wildlife Service to provide its agency interpretation, and indicated that if that interpretation is reasonable, the court will be bound to defer to it under the Chevron doctrine. However, the court cautioned that "should the agency determine upon review that no reasonable interpretation of the statute supports its existing 'threatened' designation for the polar bear, new rulemaking procedures may be warranted."
If the agency determines that to qualify for listing as an endangered species, a species must be in danger of imminent extinction throughout all or a significant portion of its range, it will set a high bar for species to qualify for full protection under the Endangered Species Act.
The Fish & Wildlife Service has until December 23, 2010 to submit the agency's supplemental explanation and supporting materials, if any, and the court set February 23, 2011 as the new hearing date on the pending cross-motions for summary judgment. In the meantime, the current listing rule and Section 4(d) rule remain in effect.
On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species. See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).
The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline. In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.
Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs). But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions. As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule. Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.
Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened. If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear. Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.
The environmental plaintiffs have also challenged the validity of the 4(d) rule itself. Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.Continue Reading...
On October 19, 2010 the San Francisco Superior Court issued an order requiring the California Fish and Game Commission (Commission) to reconsider its determination that the American pika is not threatened with extinction. Center for Biological Diversity v. California Fish & Game Comm'n, No. CPF-090509927 (San Francisco Superior Court).
In 2008, the Center for Biological Diversity (CBD) filed a petition to list the pika as threatened under the California Endangered Species Act (CESA). CBD argues that the pika is threatened with extinction because climate change in the form of increasing average temperatures in California's eastern Sierra Nevada mountain range has reduced the pika's alpine habitat by driving the pika, a species especially sensitive to ambient temperatures, to move to higher, cooler elevations. As its habitat has shrunk, its population has declined.
The petition is part of CBD's and other environmental organizations' ongoing effort, previously blogged about here, to convince state and federal wildlife agencies to list species as threatened or endangered due to climate change. Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range. If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere.
Thus, any refinery in California, e.g., could become subject to CESA regulations protecting pika hundreds of miles away. See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).
As blogged about here, the Fish & Wildlife Service recently determined that listing of the pika under the federal Endangered Species Act is not warranted, despite predicted increases in the average ambient temperatures in the pika's range. In determining that listing of the Mohave ground squirrel may be warranted, it did not agree with the petitioners there that climate change can be identified as a significant factor because it does not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."
However, the Fish & Wildlife Service has recently listed the African penguin as endangered, due, in part, to climate change. It is also in the process of determining whether listing is warranted for Whitebark pine, and the National Marine Fisheries Service is considering the impacts of climate change and other factors on 82 species of stony coral.
On July 21, 2010, the United States District Court for the Middle District of Florida ordered the dismissal of an Endangered Species Act ("ESA") challenge brought by no less than three states, six cities, and a host of local agencies (collectively, "Plaintiffs"), holding that the determination of the U.S. Fish & Wildlife Service ("Service") was entitled to deference.
The multi-district litigation, which also included a claim under the National Environmental Policy Act, alleged that the 2008 Biological Opinion issued by the Service for the U.S. Army Corps of Engineers' ("Corps") operation of the Apalachicola-Chattahoochee-Flint river basin was arbitrary and capricious. The Plaintiffs' ESA claims centered on three listed species: the threatened Gulf sturgeon, the endangered fat threeridge mussel, and the threatened purple bankclimber mussel. Specifically, Plaintiffs argued that the Service failed to use the proper environmental baseline, failed to issue necessary incidental take statements for the Gulf sturgeon, and failed to properly analyze potential impacts when issuing incidental take statements for the fat threeridge mussel and purple bankclimber mussel.
With respect to the baseline, Plaintiffs argued that the Service improperly segmented its analysis of the Corps' operational activities. The District Court found this argument unpersuasive, stating that it was "an attempt to state a claim under the ESA for what is, in fact, a claim under NEPA."
With respect to the Gulf sturgeon, Plaintiffs argued that because the Service stated in the Biological Opinion that the Corps' operational activities "could" result in take, an incidental take permit was required. The District Court, however, rejected this argument, noting that the Service also found that take was unlikely, and therefore the Plaintiffs were essentially arguing with the Service's ultimate conclusion, not the evidence it relied on. The District Court stated that in such a situation, it must defer to the Service's scientific determination.
With respect to the purple bankclimber mussels, the Plaintiffs argued that because the Service did not know the total population of the species, it could not justify any take allowance. The District Court noted that the Service found that the Corps' operational activities were unlikely to affect the species, and that even if the Service is lacking adequate data, it is authorized to develop a biological opinion by giving the species "the benefit of the doubt." Therefore, because the Service gave the species the benefit of the doubt when developing the Biological Opinion and issuing the incidental take statement, and also required the agency to perform follow-up studies and to reinitiate consultation if those studies resulted in additional relevant information, the District Court held that the Service complied with the ESA.
Finally, with respect to the fat threeridge mussel, the Plaintiffs argued that the Corps' operational activities would result in jeopardy, and the Service and Corps have an obligation to stop the decline of the species. The District Court rejected this argument, again finding that the Plaintiffs were arguing with the Service's ultimate conclusions, not the evidence it relied on, and therefore the Service's determination was entitled to deference.
Thus, the District Court rejected all of Plaintiffs' ESA challenges, denied Plaintiffs' motions for partial summary judgment, and dismissed Plaintiffs' ESA claims. The District Court's decision was appealed to the United States Court of Appeals for the Eleventh Circuit, and it is currently pending.
On Monday, September 27, 2010, the U.S. Fish and Wildlife Service issued its determination that the Gunnison sage-grouse warrants listing under the Endangered Species Act, but that proposing that it be listed as threatened or endangered be postponed while the Service addresses the needs of higher priority species.
Historically, the Gunnison sage-grouse occupied southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona. But according to the Fish and Wildlife Service, its range has been reduced to seven separate populations in southwestern Colorado and southeastern Utah (pdf). Of the approximately 4,500 breeding Gunnison sage-grouse, some 3,900 inhabit the Gunnison Basin in Colorado.
In 2006, the Service determined that listing was not warranted. An ensuing legal challenge resulted in a consent decree in which the Fish and Wildlife Service agreed to undertake a 12-month status review. The September 27, 2010 "warranted-but-precluded" finding is the outcome of that 12-month status review.
Now that the Gunnison sage-grouse has been added to the list of candidate species, the Fish and Wildlife Service must review its status annually. Currently, landowners in Colorado may voluntarily undertake conservation measures under the terms of a "Candidate Conservation Agreement with Assurances" (CCAA) issued to the Colorado Department of Wildlife by the Fish and Wildlife Service. Under the terms of the CCAA, landowners who undertake specified conservation measures receive assurances that if and when the species is formally listed, the federal government will not place additional new restrictions on the use of their property for the protection of the sage-grouse.
Last week, a man in southeast Alaska pleaded guilty to violating the Endangered Species Act (ESA) by twice intentionally ramming the boat he was operating into humpback whales, a listed species under the Act. Federal prosecutors charged Kevin Carle with “knowingly harassing, pursuing and harming whales,” a violation that resulted in two years of probation and a $1,025 fine, reports the Juneau Empire. Carle is now required to participate in an ESA Awareness program and must notify a probation officer if hired as a boat operator.
While in both instances Carle intentionally veered off-course and drove his boat directly toward the humpback whales, inadvertent "ship strikes," as they are called, are not uncommon. In fact, the National Oceanic and Atmospheric Administration reports that ship strikes with large whales in Alaska appear to be increasing, which may be a result of an increasing population of humpback whales in the North Pacific.
After Hurricane Katrina, the U.S. Army Corps of Engineers made major changes to its nationwide levee policies, including new standards in 2009 banning vegetation on or within 15 feet of levees. Earlier this year, the agency adopted a variance policy requiring trees and bushes to be removed by September 30 unless a new variance was granted, forcing levee owners and operators to scramble to meet the deadline. According to a recent notice of intent to sue letter issued by the Center for Biological Diversity, this new variance deadline may be impossible to meet for many levee owners or operators, and therefore could lead to the removal of all levee vegetation regardless of whether or not environmental review and consultation with the federal wildlife agencies has been completed.
The Center for Biological Diversity's press release announces that levee vegetation provides important habitat to listed California's threatened and endangered species, and therefore the Corps is required to consult with the federal wildlife agencies pursuant to the Endangered Species Act before moving forward with the new policy. Jeff Miller, a conservation advocate at the Center, is quoted as saying:
Levee safety can be achieved without a scorched-earth policy that will destroy habitat for struggling species like salmon, steelhead trout, and willow flycatchers. The Corps has failed to consult with federal wildlife agencies about the impacts of vegetation-free zones on California’s endangered species. It’s left too little time for levee operators to get new variances.
A related, contentious issue is whether vegetation actually impairs levees, or whether some vegetation can actually help stabilize them.
On July 26, 2010, the Center for Biological Diversity filed another lawsuit challenging the Department of the Interior's regulation of offshore drilling, alleging that the Department failed to properly assess potential impacts on endangered and threatened species from large scale oil spills. The lawsuit, which was filed in the United States District Court for the District of Columbia, attacks the "policy" and "decisions" of the former Minerals Management Services (now the Bureau of Ocean Energy Management, Regulation, and Enforcement) that exploration drilling poses de minimis risk to endangered and threatened species, and therefore is subject to a categorical exemption from full environmental review. The lawsuit seeks to prohibit the use of such categorical exclusions for future drilling projects, and force the Department to conduct a "full and adequate" environmental analysis.
Another Lawsuit Filed Challenging the Federal Emergency Management Agency's Compliance With The Endangered Species Act
On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act. Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and commercial development along Florida's beaches," which "impairs essential habitat functions of five species of threatened or endangered sea turtles." The plaintiffs seek an order compelling FEMA to, among other things, consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to insure that the implementation of the NFIP does not jeopardize the threatened and endangered sea turtles.
Similar actions have been filed throughout the United States, some of which have resulted in published decisions ordering FEMA to consult with federal wildlife agencies. For example, on April 1, 2008, the U.S. Court of Appeals for the Eleventh Circuit held that FEMA was required to consult with federal wildlife agencies regarding its administration of the NFIP because of potential impacts to various endangered and threatened species located in the Florida Keys. Similarly, in 2004 the United States District Court for the Western District of Washington held that FEMA was required to consult with the National Marine Fisheries Service regarding its administration of the NFIP because of potential impacts to the Puget Sound chinook salmon.
In addition to the latest lawsuit filed by the National Wildlife Federation and Florida Wildlife Federation, in 2009 WildEarth Guardians filed two similar lawsuits against FEMA in the United States District Court for the District of Arizona and the United States District Court for the District of New Mexico. That same year, a similar lawsuit against FEMA was also filed in the United States District Court for the District of Oregon, and the Coalition for a Sustainable Delta and Kern County Water Agency filed a similar lawsuit against FEMA in the the United States District Court for the Eastern District of California. Except for the litigation filed in the District of Oregon, all of these matters are currently pending resolution; the Oregon matter is now resolved as the result of a stipulated settlement.
After nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.
But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal district court for the District of Columbia to block construction of the Cape Wind project. The coalition alleges that the Minerals Management Service and U.S. Fish and Wildlife Service violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), Migratory Bird Treaty Act, and the Administrative Procedure Act (APA). Specifically, the coalition claims that the biological opinion (PDF) for the project will unlawfully allow the project to "take" Roseate Terns and Piping Plovers without sufficient safeguards based on the best available science and the Service’s own determination of reasonable and prudent measures to minimize take such as shutting down the turbines during peak periods of migration through the Nantucket Sound.
The lawsuit illustrates the hurdles that renewable energy projects often face, even after years of federal, state, and local permitting and environmental review. Although many environmental groups support the Cape Wind project, e.g., Natural Resources Defense Council, Friends of the Earth, World Wildlife Fund, and Greenpeace USA, every renewable energy project will have some adverse environmental impacts, and is therefore vulnerable to citizen suits, well founded or not, under the panoply of environmental laws that apply to energy projects.Continue Reading...
In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the
In this case, the Miccosukee Tribe challenged the 2002 biological opinion and subsequent 2006 biological opinion (PDF) issued by the Fish and Wildlife Service regarding management actions by the Corps of Engineers to restore wildlife in the Everglades. The Tribe challenged the Amended Incidental Take Statement (PDF) to the 2006 biological opinion, specifically the Service’s use of ecological and habitat surrogates for a numerical limit on the incidental take of three listed species, the
Here the Service argued that natural fluctuations in the population of the
The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork.
Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse. On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA"). This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species. As discussed in a previous post, Western Watersheds filed a complaint challenging the 2005 determination, and in 2007, the federal district court reversed the Service's determination and remanded the matter to the Service.
The supplemental complaint (PDF) filed by Western Watersheds alleges, in part, that the Service's justification for its warranted but precluded finding for the greater sage grouse is arbitrary and capricious because the Service has not made "expeditious progress" in listing species under the ESA. According to the supplemental complaint, between 1974 and 2000, the Service listed approximately 45 species per year, but between January 2001 and March 2005, the Service listed only 30 species in total, an average of seven species per year. The complaint also alleges that the Service only listed one species during fiscal year 2009.
As previously discussed, while a candidate species is not protected under the ESA, the Bureau of Land Management ("BLM") has issued guidance (PDF) that may have impacts on wind and solar development as well as oil and gas leasing on BLM lands that impact the species.
Court Holds that Federal Agencies Acted Illegally by Implementing Biological Opinion and Reasonable and Prudent Alternatives without Complying with NEPA
The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.
The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009. In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species. For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species. Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.
Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA. The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.
Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada. The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine."
The whitebark pine listing petition is one of several recent petitions seeking protection under the ESA due to the threat that climate change poses to the species. The Service recently declined to list the American pika as endangered or threatened due to climate change. But last month the National Marine Fisheries Service determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.
Co-authored by Ben Rubin
On February 27, 2010, the Sacramento Bee published a story by Matt Weiser entitled "Lawsuit: Striped bass to blame for California's salmon decline." The story discusses an ongoing lawsuit (PDF) challenging the California Department of Fish and Game's enforcement of striped bass sport-fishing regulations in the Sacramento-San Joaquin Delta. The lawsuit alleges that the enforcement of the striped bass sport-fishing regulations maintain an elevated striped bass population, which increases striped bass predation on a number of species listed under the Endangered Species Act ("ESA"), including the Sacramento River winter-run Chinook salmon and delta smelt. Because these species are listed, any action that increases striped bass predation is a violation of Section 9 of the ESA, which prohibits any government agency, entity, or individual from "taking" a federally protected species without prior authorization.
Plaintiffs and the Department of Fish and Game have filed cross-motions for summary judgment, which the federal District Court is scheduled to hear in late April. Plaintiffs' motion (PDF), which relies primarily on documents and statements from Department of Fish and Game employees, seeks summary adjudication on the issue of liability and standing. The Department of Fish and Game, however, has only moved (PDF) on the issue of plaintiffs' standing.
Lawsuit Seeking Listing of Sonoran Desert Tortoise Expands Endangered Species Act-Solar Development Conflict
Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act. The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert. The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert.
On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted. According to the lawsuit, the Service received a petition to list the tortoise in October 2008. Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority. If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service. Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development.
The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C., Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade. The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.
The Endangered Species Act requires the Service to make a "12-month finding" on listing petitions within one year of receipt. The 12-month finding may consist of one of three determinations:
- listing is "warranted," and the Service must publish a proposed rule to list the species;
- listing is "not warranted" and no further action is taken; or
- listing is "warranted but precluded" by other listing actions of higher priority.
However, the Service often takes more than a year to make a determination on a listing petition due to the number of petitions it receives, budget constraints, and litigation-imposed deadlines. A few of the species at issue in the lawsuits include the California golden trout, Cactus Ferruginous pygmy owl, Mount Charleston butterfly, Mojave fringe-toed lizard, and Mojave ground squirrel.