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

On May 15, 2013, the U.S. Fish and Wildlife Service (Service) removed (pdf) the Magazine Mountain shagreen (Inflectarius magazinensis) from the Federal List of Endangered and Threatened Wildlife. The Service determined that the threats to the species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Endangered Species Act (ESA).

The Magazine Mountain shagreen is a medium-sized, dusky brown or sand-colored snail found on Mount Magazine in western Arkansas. The snail was first listed under the ESA in 1989. According to the Service, the species’ population has remained stable since 1996, largely due to the fact that Magazine Mountain is entirely owned and protected by the U.S. Forest Service and Arkansas Department of Parks and Tourism. The snail is the first invertebrate to be delisted under the ESA.
 

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On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits grasslands and prairie habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. As previously reported, the Service proposed listing the species as threatened under the ESA in December. The Service reopened the comment period for this proposed rule for an additional 45 days.

The special rule would only be implemented if the lesser prairie-chicken receives ESA protections. According to the Service, the special rule is proposed “in recognition of the significant conservation planning efforts occurring throughout the range of the lesser prairie-chicken for the purpose of reducing or eliminating threats affecting the species.”

The Service also announced the availability of a draft conservation plan that was developed by the Lesser Prairie-Chicken Working Group, which is comprised of states, landowners, and energy developers who have partnered to prevent the bird from becoming listed. The proposed special rule discusses the draft plan, explaining: “For the Service to approve coverage of a comprehensive conservation program under this 4(d) special rule, the program must provide a net conservation benefit to the lesser prairie-chicken population.”

Comments on the proposed special rule, the proposed listing, and the draft conservation plan (as such comments relate to the Service’s listing determination) are due June 20, 2013.
 

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In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ESA. The Service designated critical habitat for the species in 1996. In 2008, plaintiffs filed a petition with the Service to delist the tri-state population, arguing the DPS was not sufficiently discrete to warrant ESA protection. After completing a status review in June 2009, the Service concluded the tri-state population was a valid DPS because it was “discrete” and “significant.” Accordingly, the Service determined that delisting was not warranted in January 2010. The Service also revised the critical habitat designation for the species in October 2011. Plaintiffs challenged both the Service’s decision not to delist the species and the critical habitat designation.

With respect to critical habitat, plaintiffs and the Service sought a consent decree, pursuant to which the Service would vacate the 2011 critical habitat designation, and issue a revised designation by September 2018. The court declined to approve the consent decree, concluding that complete vacatur of the critical habitat designation was not a fair and equitable resolution of plaintiffs’ claims or in the public interest.

Plaintiffs also challenged the Service’s 2010 decision, arguing the Service’s conclusion that the tri-state population was “significant” was arbitrary and capricious under the Administrative Procedure Act. Plaintiffs argued that central California murrelets should not be included in the tri-state murrelet population because they are genetically distinct from the other murrelets in the DPS. Plaintiffs further argued that, if the central California population was not included in the tri-state population, the DPS would not be considered “significant” under the ESA. It was undisputed that the Service had not determined whether the central California population interbreeds with other tri-state populations, which would have shown whether the central California population was genetically distinct. In holding for plaintiffs, the court found it was improper for the Service to conclude that the tri-state DPS was significant without determining whether central California murrelets interbreed with other murrelets in the DPS.

The court rejected plaintiffs’ other arguments regarding the Service’s decision not to delist the species, including with respect to its determination that the tri-state DPS is “discrete.”

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On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from recovering legal fees.

According to Rep. Flores, the bill is intended to “protect American citizens from the burdensome and costly regulatory impact of closed-door litigation settlements between special interest groups and the U.S. Fish and Wildlife Service.” Similarly, Rep. Conaway stated: “This legislation would … require that local communities have the opportunity to veto any settlements between the [S]ervice and these environmental groups.”

The bill was introduced as companion legislation to Senate Bill 19, which, as we reported here, was introduced by Sen. John Cornyn in February.
 

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On March 1, 2013, the great white shark (Carcharodon carcharias) received protection (pdf) under the California Endangered Species Act (CESA).  The protections prohibit anyone from hunting, pursuing, or otherwise harming the species.  Commercial fisheries that could incidentally take a shark in fishing nets, as well as scientists wishing to tag a shark for research, will have to obtain permits from the California Department of Fish and Wildlife.  As reported here, the protections are the result of the California Fish and Game Commission's decision to make the species a candidate for protection under CESA.   

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

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

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

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On February 6, 2013, the California Fish and Game Commission (Commission) voted to make the great white shark (Carcharodon carcharias) a candidate for protection under the California Endangered Species Act (CESA).  The Commission determined that listing the species as threatened or endangered under CESA may be warranted, and initiated a one-year comprehensive review to evaluate the status of the species.  Based on this review, the Commission will make a final decision next year regarding whether to list the species.  The species will receive protection under CESA while the review is conducted.  As we reported here, the Commission’s decision is the result of a recommendation from the California Department of Fish and Wildlife to list the species. 

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In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held (pdf) that claims arising under the citizen suit provision of the Endangered Species Act (ESA) are not subject to the strictures of the record review doctrine. The court held that, since the ESA citizen suit provision creates an express, adequate remedy at law, and the Administrative Procedure Act (APA) only applies when there is “no other adequate remedy in court,” plaintiffs claims were not governed by the APA, and the court’s review was not limited to the administrative record.

Plaintiffs had filed suit against the Environmental Protection Agency (EPA), asserting that the EPA violated section 7 and section 9 of the ESA by failing to implement the reasonable and prudent alternatives and reasonable and prudent measures set forth in two biological opinions regarding the effects of certain pesticides on species listed under the ESA. Prior to completing the briefing on a pending motion for summary judgment, the parties stipulated that the court would preliminarily resolve a dispute regarding whether plaintiffs’ claims were limited to review of the administrative record.

In holding for plaintiffs, the court relied on Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), and Washington Toxics v. EPA, 413 F.3d 1024 (9th Cir. 2005). In those cases, plaintiffs’ brought claims under the ESA citizen suit provision, challenging a federal agency’s failure to consult under section 7 of the ESA. In both cases, the United States Court of Appeals for the Ninth Circuit held that, because the ESA citizen suit provision independently authorizes a private right of action, the APA does not govern plaintiffs’ claims.

The court ordered the parties to supplement the administrative record with relevant material. The court will consider such materials when it rules on the merits of plaintiffs’ claims in coming months.
 

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On January 23, 2013, over 25 California delegates to the House of Representatives introduced a bill, H.R. 399 (pdf), addressing the federal rules requiring trees growing on levees to be removed. Specifically, the bill would require the U.S. Army Corps of Engineers (Corps) to review its policy about vegetation-removal on levees, in order to consider allowing variances on a regional or watershed basis.

The Corps established a national vegetation removal policy in the wake of the failure of levees during Hurricane Katrina. According to Rep. Doris Matsui (D-CA), the “[C]orps' current vegetation policy does not provide enough flexibility for the unique challenges of different regions across the nation, and particularly in California.”

The California Department of Water Resources (DWR) estimates that compliance with the current federal policy would cost at least $7.5 billion and would destroy important habitat for endangered species. Under the existing policy, original riparian forest would have to be removed; such vegetation is habitat to several endangered species, including Chinook salmon, valley elderberry longhorn beetle, and Central Valley steelhead. DWR is concerned that compliance both with the Corps’ vegetation removal policy and the Endangered Species Act would be unworkable. 

As we reported here, the California Department of Fish and Wildlife filed a lawsuit against the Corps in February 2012. That suit is still pending. 

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