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

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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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.

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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.

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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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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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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.

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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.

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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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In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit  upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations.  The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.

BLM began the process of amending the grazing regulations in 2002 and assembled a total of three interdisciplinary teams to review the proposed changes.  Two of these teams criticized the new regulations and concluded they would ultimately lead to environmental harm and would cause a "slow long-term adverse effect on wildlife and biological diversity in general."  BLM ignored these conclusions and in 2006 issued a final rule (PDF) adopting the proposed regulations.  The 2006 regulations made three principal changes to the regulations:  (1) they decreased the level of public input in public rangelands management, (2) they generally made it more difficult for BLM to conduct environmental enforcement on public rangelands, and (3) they ceded ownership rights to permanent rangeland structures and water from the United States to private ranchers.  With respect to the ESA, BLM concluded that the 2006 regulations were merely administrative and would not have an effect on listed or candidate species or proposed or designated critical habitat and therefore no consultation with FWS was required under section 7 of the ESA.

Section 7 of the ESA requires a federal agency to consult with the Service if the federal agency determines that any action on its part may affect any listed species or designated critical habitat.  Here, the Ninth Circuit found that BLM's conclusion that the 2006 regulations would not affect listed species or critical habitat was arbitrary and capricious.  First, the court noted that the "sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments 'may affect' a listed species or its critical habitat."  Second, the Service itself concluded that the 2006 regulations would affect special status species and their habitat.  The Service was primarily concerned with the decrease of public input and change in water ownership, which would reduce habitat quality and have a long-term adverse effect on wildlife.  Third, even BLM's own scientists advised the agency that a section 7 consultation was necessary.  Finally, plaintiffs submitted extra-record testimony that the regulations would have an adverse effect on wildlife and biological diversity, listed salmonids, and many listed bird species.  Therefore, the court concluded that BLM had no rational basis to conclude that the 2006 regulations would not affect listed species or their habitat.

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The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy. 

The gray wolf was listed as endangered under the ESA in 1974.  The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s.  Under the Bush Administration, the Service sought to delist the wolf in 2008 (including the Wyoming wolves), but environmental plaintiffs successfully enjoined implementation of that rule.  The 2009 Final Rule removed ESA protection for the gray wolves in Idaho and Montana, but preserved protection for the Wyoming Wolves noting that the state's regulatory framework failed to meet the ESA's requirements. 

In challenging the 2009 Final Rule, plaintiffs argued that the Service had violated the ESA by listing something less than a DPS (by only protecting the Wyoming wolves and excluding Idaho and Montana) as endangered and that the definition of a  "species" is nothing smaller than a DPS.  The Service defended its listing decision arguing that the ESA allows for listing of part of a DPS because the term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range.  The court explained that the Service's argument could not be reconciled with the plain reading of the ESA and that the term "species" excludes distinctions below that of a DPS.  The court further concluded that the Service's interpretation of the ESA was not deserving of deference and was unreasonable.

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