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

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.

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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.

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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. 

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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.

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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 Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal courts to undertake detailed review of biological opinions issued by the federal wildlife agencies.

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 Cape Sable seaside sparrow, Everglade snail kite, and wood stork.  Federal courts have held that the Service has the burden of demonstrating that it is impractical to identify a numerical limit on incidental as the trigger for reconsultation under section 7 of the Endangered Species Act.

 Here the Service argued that natural fluctuations in the population of the Cape Sable seaside sparrow made the identification of a numerical take limit impractical.  The District Court for the Southern District of Florida rejected the Service’s argument stating the “fact that sparrow populations may decrease due in part to low nest success rates does not unequivocally support the conclusion that the variability of nest success rates makes it impractical to establish a numerical trigger for incidental take.” 

The court found the Amended Incidental Take Statement was valid as to the Everglade snail kite and the wood stork. 

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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.

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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.

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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. 

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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.

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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. 

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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: 

1. listing is "warranted," and the Service must publish a proposed rule to list the species;
2. listing is "not warranted" and no further action is taken; or
3. 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.

Arizona Complaint (PDF)

California Complaint (PDF)

Portland Complaint (PDF)

Washington, D.C. Complaint (PDF)

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