Audrey Huang

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Audrey Huang counsels clients on environmental litigation, permitting and compliance issues. Ms. Huang represents clients in litigation involving environmental and land use matters. Her experience includes litigation involving the Endangered Species Act, California Environmental Quality Act, Clean Water Act, Administrative Procedure Act, Comprehensive Environmental Response, Compensation, and Liability Act, and Resource Conservation and Recovery Act.

In addition, Ms. Huang advises clients regarding endangered species issues, federal and state environmental permitting, coastal development issues, air and water quality, and climate change. Ms. Huang's practice includes counseling clients on matters related to the National Environmental Policy Act and the California Environmental Quality Act, as well as review and defense of environmental documents, and drafting and negotiating agreements with local agencies.


Ninth Circuit Upholds Law Directing Delisting of Distinct Populations of Gray Wolves

The U.S. Court of Appeals for the Ninth Circuit has upheld a law that orders the Secretary of the Interior to reissue a rule that delists a distinct population of gray wolves in the northern Rocky Mountains without regard to the Endangered Species Act ("ESA") and without judicial review.  Alliance for the Wild Rockies v. Salazar, No. 11-36552 (9th Cir. March 14, 2012).  As previously reported, in 2009 the Fish and Wildlife Service ("Service") issued what is known as the "2009 Rule," which designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except the populations in Wyoming.  The United States District Court for the District of Montana struck down the 2009 Rule as violating the ESA because the ESA does not permit partial delisting of a distinct population segment. 

In April 2011, President Obama signed into law Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 ("Section 1713"), which included a provision directing the Secretary of Interior to reissue the 2009 Rule without regard to the ESA and without judicial review.  A group of plaintiffs challenged the constitutionality of Section 1713 arguing that it violated the doctrine of separation of powers. 

The Ninth Circuit rejected the challenge, concluding that Section 1713 is constitutional and that when Congress directed the Service to issue the 2009 Rule "without regard to any other provision of statute or regulation that applies to issuance of such rule," Congress was in effect amending the law applicable to the agency's action, which is not a violation of the separation of powers. Therefore, the court found that Section 1713 is entitled to be enforced. 

 

 

Status of Spikedace and Loach Minnow Changed to Endangered

In a final rule (pdf) published today, the Fish and Wildlife Service ("Service") uplisted the spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) from threatened to endangered under the Endangered Species Act.  The Service also revised the designation of critical habitat for both species.  In total, approximately 630 miles are designated as critical habitat for spikedace and 610 miles are designated as critical habitat for loach minnow.  The critical habitat designations are in Arizona and New Mexico.  The Service excluded portions of the upper San Pedro River in Arizona as well as some Tribal lands and private lands in Arizona and New Mexico. 

Threats to both species include groundwater pumping, surface water diversions, impoundments, and channelization.  These changes to the flow  regime may decrease the amount of available habitat.  However, competition with or predation by nonnative species is considered the largest remaining threat to the species.  According to the Service, spikedace and loach minnow previously had a relatively widespread distribution covering portions of Arizona, New Mexico, and northern Mexico, but currently it is estimated that spikedace occur in only 10 percent of their former range and loach minnow occur in 10 to 20 percent of their former range. 

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Parts of National Oceanic and Atomospheric Administration to be Transferred to Department of the Interior

President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior.  NOAA oversees marine wildlife, including endangered marine species.  The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife.  In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight over species in separate departments was inefficient.

As reported by Jason Samenow in the Washington Post, the consolidation plan is facing growing opposition.  Several environmental groups, including the NRDC have spoken out against the plan arguing that it could hinder the government's protection of the oceans and undermine the agency's independence.  The National Weather Service Employee's Union is also opposed to the consolidation.  However, not everyone thinks the consolidation is entirely bad.  David Malakoff of Science quotes a former head of NOAA's marine fisheries program as stating that "The place that NOAA sits doesn't matter; what matters is that its operations need to be coherent and functioning" and that there are both advantages and disadvantages to the proposed consolidation.

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Ninth Circuit Affirms Lower Court Decision for Strike Rule Delisting Grizzly Bears

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species.  The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly.  However, the Ninth Circuit reversed the district court's holding that the Service's determination regarding the adequacy of existing regulatory mechanisms was not reasonable. 

The subject of the appeal was the Service's decision to remove the Yellowstone grizzly from the list of threatened and endangered species.  The Service first listed the grizzly as threatened in the lower 48 states in 1975.  At the time of listing, the Yellowstone area grizzly population was estimated to number between 136 and 312 bears.  The Service developed a grizzly bear recovery plan in 1982 and revised the plan in 1993.  By 2006, the Service determined that the recovery plan's demographic and habitat based recovery criteria were being met, and the total grizzly population in the greater Yellowstone area was estimated at more than 500 bears, which scientists concluded was approaching Yellowstone National Park's carrying capacity.  Pursuant to the recovery plan, the Service developed a Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Strategy), which the Service finalized in March 2007.  The Service published a final rule (pdf) removing Yellowstone grizzly from the threatened species list in March 2007. 

The Greater Yellowstone Coalition challenged the Service's final rule in district court in November 2007.  The district court found that the Service failed to rationally support its conclusions that adequate regulatory mechanisms were in place to protect the grizzly and that declines in whitebark pine did not threaten the grizzly.  The district court vacated and remanded the final rule. 

The Ninth Circuit agreed with the district court and found that the Service failed to articulate a rational connection between the scientific data and its conclusion that changes in whitebark pine production are not likely to impact the Yellowstone grizzly to the point where it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.  The court explained that the data in the final rule actually demonstrated a relationship between whitebark pine seed shortages, increased bear mortality, and decreased female reproductive success.  The increasing shortage of whitebark pine is due to stresses on the trees from mountain pine beetles and white pine blister rust, both of which may be exacerbated by climate change. As we previously reported here, environmental groups sued the Service to act on a petition to list the whitebark pine due to climate change, and the Service subsequently made a warranted but precluded finding for listing the whitebark pine, which we blogged about here

The court rejected the Service's notion that employing adaptive management justified the delisting, explaining that the future possibility of relisting is not a reasonable justification for delisting, and that "for adaptive management of a potential threat to suffice as a basis for a delisting determination, . . . more specific management responses, tied to more specific triggering criteria, are required." 

Finally, the Ninth Circuit agreed with the Service that there are adequate regulatory mechanisms in place to protect a recovered Yellowstone grizzly population.  The court explained that "delisting cannot require the imposition of legal protections commensurate with those provided by the [Endangered Species Act] itself."  Therefore, the court explained, "it is reasonable to conceive of 'adequate' regulatory mechanisms as offering a recovered species something less than the stalwart protections of the ESA, but considerably more than no special protection at all."

The effect of the court's decision is to continue Endangered Species Act protection for the Yellowstone grizzly.

Ninth Circuit Denies Emergency Injunction to Halt Wolf Hunting

The U.S. Court of Appeals for the Ninth Circuit denied (PDF) an emergency motion (PDF) for an injunction pending appeal to the extent the moving parties sought an injunction prior to the court hearing oral arguments, currently scheduled for November 8, 2011.  At issue in the underlying appeal is the constitutionality of a law (Public Law 112-10 section 1713 (Section 1713)) passed by Congress that directs the Secretary of the Interior to reissue a 2009 final rule which removed Endangered Species Act (ESA) protections for all wolves living in the Northern Rocky Mountain Gray Wold Distinct Population Segment outside of Wyoming (2009 Rule).  Section 1713 directs that this reissuance shall not be subject to judicial review. 

Without the ESA protection, the wolves can be legally hunted, and wolf-hunting season has commenced in both Idaho and Montana. 

As we previously discussed, the 2009 Rule delisted (thereby removing ESA protection) the distinct population segment of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  In August 2010, the United States District Court for the District of Montana set aside the 2009 Rule holding that the ESA does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy.  The Service, Idaho, and Montana appealed.  Pending the outcome of those appeals, in April 2011, Congress passed the law ordering reissuance of the 2009 Rule.  Several environmental groups subsequently sued the Service  alleging that the law violated the constitutional separation of powers by directing the outcome of the appeals without amending the underlying substantive law.  While the district court agreed that Section 1713 is unconstitutional and violates the separation of powers doctrine, it entered summary judgment in favor of the Service because it was bound by precedent that constrained its ability to rule for the environmental groups.  The environmental groups then appealed the district court's decision to the Ninth Circuit. 

While the Ninth Circuit denied the emergency motion for preliminary injunction for an injunctive relief prior to oral argument, the Ninth Circuit will consider the motion for injunction pending outcome of the appeal at oral argument on November 8, 2011.

Fish and Wildlife Service to Consider Delisting Valley Elderberry Longhorn Beetle

The Fish and Wildlife Service (Service) announced a 90-day finding (pdf) that delisting the Valley Elderberry Longhorn Beetle (Desmocerus californicus dimorphus) may be warranted.  The Pacific Legal Foundation (PLF) initially petitioned the Service to delist the beetle in September 2010.  In April 2011, PLF filed a lawsuit seeking a court order directing the Service to issue a finding on PLF's petition.  The 90-day finding commences the Service's status review of the species to determine whether delisting is warranted.  The Service is requesting available data on the beetle.  The deadline for submitting comments to the Service is October 18, 2011.  The Service will then issue a 12-month finding as to whether the delisting is warranted or not. 

The beetle is endemic to the Central Valley of the State of California.  Until the beetle is formally delisted, all protections under the Endangered Species Act remain in place.  The address to send comments can be found on the Service's Q and A (pdf) about the 90-day finding. 

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Fish and Wildlife Service Finds Listing Whitebark Pine is "Warranted but Precluded"

The Fish and Wildlife Service (Service) made a "warranted but precluded" finding (PDF) for the whitebark pine (Pinus albicaulis).  This finding means that the Service has determined that the whitebark pine should be listed, but that it will not currently list the species because there are other higher priority species in the queue and there is a lack of funding.  Therefore, the Service has added the whitebark pine to its candidates species list and will develop a proposed rule to list the species as priorities and funding allow. 

As we previously reported, the Natural Resources Defense Council sued the Service in March 2010 to act on a 2008 petition to list the species.  In July 2010, the Service made a 90-day finding that listing the species may be warranted. 

The trees are being harmed by a disease known as white pine blister rust, as well as by beetles and climate change.  The Service found that the primary threat to the species is from the white pine blister rust, which is nearly ubiquitous throughout the range of the species and results in the mortality of a majority of infected individuals, with all age classes of the trees being susceptible.  Warmer climates have facilitated large outbreaks of the mountain pine beetle, which feeds on the whitebark pine.  Climate change and warmer temperatures will also decrease suitable habitat for the species.

The Service assigned the whitebark pine a Listing Priority Number of 2 based on its finding that the species faces threats that are of high magnitude and imminent.  This is the highest priority number that can be provided to a species. 

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Fish and Wildlife Service Issues Revised Recovery Plan for Northern Spotted Owl

On June 30, 2011, the Fish and Wildlife Service (Service) issued a revised recovery plan (PDF) for the Northern spotted owl (Strix occidentalis caurina).  Most people are familiar with the spotted owl because of the intense media attention it received during the 1990s when a fight erupted over whether to continue to allow timber harvesting in the forests of the Pacific Northwest, which conservationists argued was causing loss of critical habitat for the species.  The Service first issued a recovery plan for the spotted owl in 2008, and numerous parties challenged that plan in court.  In 2009, the Service filed for a voluntary remand of the 2008 recovery plan and critical habitat designation.  

The Revised Recovery Plan has three main provisions for achieving spotted owl recovery: protecting "high value" habitat, actively managing forests to improve forest health, and reducing competition from barred owls (Strix varia). 

When the spotted owl was first listed in 1990, the main threat to the species was the loss of habitat due to timber harvest and catastrophic fire.  As a result, logging restrictions were implemented.  But since that time, another threat, competition from barred owls, which have moved into the spotted owl's range, has grown significantly.  The Service currently views the threat from barred owls as "extremely pressing" requiring "immediate consideration."  Barred owls are "larger, more aggressive, and more adaptable than spotted owls" and are believed to "displace spotted owls, disrupt their nesting and compete for food."  In addition, there have been observations of barred owls killing spotted owls and mating with the females.  Therefore, one of the main provisions of the Revised Recovery Plan is to manage the barred owl, including experimental removal, using both lethal and non-lethal methods.

The Revised Recovery Plan does not include a mapped habitat conservation network, and the Service is under court-order to issue a proposed critical habitat designated by November 15, 2011 and a final critical habitat designation by November 15, 2012. 

As reported in the New York Times, the spotted owl is "declining by an average of 3 percent per year across its range."  (New York Times, June 30, 2011 by William Yardley.)  While the Revised Recovery Plan proposes to expand protected areas for the spotted owl, scientists are uncertain whether the barred owl can be managed adequately to allow recovery of the spotted owl.  It is expected that the Revised Recovery Plan will also be the subject of future litigation.

Court Denies Temporary Restraining Order to Lift Pumping Restrictions in the Delta

As reported on June 15, 2011 by John Ellis and Mark Grossi of the Fresno Bee, the United States District Court for the Eastern District of California denied a motion for temporary restraining order that sought to order the Department of the Interior to lift pumping restrictions in the Sacramento-San Joaquin Delta.  Judge Wanger ruled that the pumping restrictions were necessary to protect migrating fall-run Chinook salmon, explaining that under the Central Valley Project Improvement Act (CVPIA) the Bureau of Reclamation (BOR) must protect all fish, not just endangered species.  The San-Luis and Delta Mendota Water Authority and Westlands Water District had argued that under the CVPIA, BOR is obligated to export and store as much water as possible when the Delta is in excess water conditions, which they argued it will be until early July due to the high amount of snow and rain California has received.  The water agencies further argued that  fall-run Chinook are not protected under the Endangered Species Act.

Fish and Wildlife Service Soliciting Comments for Five Year Review for Several California Species

The Fish and Wildlife Service is initiating a five-year review of 53 species under the Endangered Species Act.  The subject-species consist mainly of various frogs, butterflies, moths, snakes and lizards, including the El Segundo blue butterfly, San Francisco garter snake, California red-legged frog, California tiger salamander (Central), Western snowy plover, Longhorn fairy shrimp, and Vernal pool fairy shrimp.  Several plant species are also under review.  The purpose of the five-year review is to determine whether any of the species should be removed from the endangered species list, or reclassified from threatened to endangered or vice versa. 

The Service is seeking new information on the species relating to the species' biology, habitat conditions, any conservation measures that have been implemented to protect the species, threat status and trends, as well as other relevant information, such as improved analytical methods. 

Comments should be submitted by July 25, 2011.  The address for submitting comments varies by species and can be found on the notice (PDF)

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