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

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land spanning from San Francisco to the Canadian border.  The plan is intended to protect the long-term ecological health of the forests (including ecologically critical species) while also allowing for sustainable timber production.  In order to assess the impact of logging activities, survey and management standards were adopted as part of the Northwest Forest Plan.

In 2007, federal agencies issued final environmental documents supporting the elimination of the survey and management standards.  Environmental plaintiffs subsequently sued the federal agencies alleging violations of the National Environmental Policy Act, Endangered Species Act, National Forest Management Act, and Federal Land Policy Management Act.  After the district court held that the federal agencies violated the National Environmental Policy Act, the parties began negotiating the terms of a settlement agreement. 

Eventually, all of the parties, except for a single intervenor-defendant, agreed on terms and moved for entry of a consent decree.  Instead of eliminating the survey and management standards, the settlement agreement proposed to modify the standards.  The intervenor-defendant objected to entry of the consent decree on the basis that all modifications to the survey and management standards were statutorily required to go through a public-participation procedure, and entry of the settlement agreement would bypass that process.  The district court, rejected this argument and entered the consent decree.

On appeal, however, the Ninth Circuit found the intervenor-defendant's argument persuasive, and reversed the decision of the district court, holding that the district court abused its discretion when it entered the consent decree. 

Consent decrees are a common means of settling environmental litigation.  They are also, however, a potential means for abuse.  In fact, as noted in recent headlines, some members of Congress have proposed to modify the consent decree process in an effort to avoid the potential for abuse.  (See our blog post "ESA Legislation Proposed to Prohibit Certain Settlements and Awards.")  With all of this bad press, one wonders whether the courts are also starting to distrust consent decrees.  (See our blog post "Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet.")  Only time will tell. 

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The Palila (Loxioides bailleui) is a small bird native to Hawaii that was listed as endangered in 1967.  In 1998, the U.S. District Court for the District of Hawaii, pursuant to a stipulation submitted by the parties, issued an order requiring the State of Hawaii to conduct semi-annual  "aerial sightings" for ungulates (e.g., pigs, deer, sheep, goats, cattle) in the Palila's critical habitat area.  Further, if any ungulates are sighted, the order requires the State to "commence aerial shooting" of the ungulates. 

In 2012, the County of Hawaii, who was not a party to the stipulation or the underlying Endangered Species Act (ESA) litigation, enacted an ordinance prohibiting "any person to engage in the eradication of any animal for any reason while being transported by helicopter, airplane, or any other similar means."  Afraid that compliance with the 1998 order would result in a violation of local law, the parties to the underlying ESA litigation filed a motion with the district court seeking both a declaration that the County ordinance was preempted by federal law, and an injunction prohibiting the County from enforcing the ordinance with respect to activities conducted pursuant to the 1998 order.  In opposing the motion, the County not only refused to agree that it would not enforce the ordinance, but also indicated that aerial eradication efforts could potentially be prosecuted under State law. 

The district court held (pdf) that, under the Supremacy Clause to the U.S. Constitution, the County of Hawaii was preempted from prosecuting any violation of the 2012 ordinance or State law if the violation occurred as a result of any action to enforce the specific terms of the 1998 order.  The district court expressly noted that, while the County of Hawaii was not a party to the original ESA litigation, this did not prohibit the court from issuing an injunction in order to protect its prior decision.   

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On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed (pdf) the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe."  The claim is unusual because it arose in the context of the federal Endangered Species Act (ESA).

Casitas Municipal Water District (Casitas) has a contract with the federal Bureau of Reclamation and a license with the State of California authorizing it to divert water for the Ventura River Project (Project).  The contract with the Bureau of Reclamation states that Casitas "shall have the perpetual right to use all water that becomes available through the construction and operation of the Project."  The license with the State of California provides that Casitas may divert up to 107,800 acre-feet of water per year from the Ventura River and other tributaries and to put up to 28,500 acre-feet of water per year to beneficial use for the Project.  

After the West Coast steelhead trout (Oncorhynchus mykiss) was listed as an endangered species, and in order to avoid potential liability under section 9 of the ESA , the Bureau of Reclamation consulted with the National Marine Fisheries Service.  The consultation ended when the National Marine Fisheries Service issued a biological opinion for the Project.  To avoid liability under the ESA, the biological opinion provided, among other things, that a fish ladder be constructed and that a flow regime be implemented to increase the amount of water running through the fish ladder during the steelhead migration period.  

In 2005, Casitas filed an action against the United States in the U.S. Court of Federal Claims alleging that it had lost water as a result of the conditions imposed on the operation of the Project, and therefore the United States had taken its property without just compensation.  While the Court of Federal Claims initially dismissed the claim, the Federal Circuit reversed and remanded the matter so that the lower court could analyze the claim under the "physical takings rubric." 

On remand, Casitas asserted at trial that operation of the fish ladder deprived it of 3,942 acre-feet of water on an annual basis.  Casitas did not demonstrate, however, that this foregone water would have otherwise been put to a beneficial use.  Specifically, the Court of Federal Claims found that Casitas failed to demonstrate that its customers (whether actual or potential) received less water as a result of the operating criteria.  Therefore, the Court of Federal Claims held that the takings claim was not ripe, and dismissed the complaint without prejudice. 

On appeal, now for the second time, the Federal Circuit affirmed the decision of the lower court.  On appeal, both Casitas and the United States conceded that the property right involved was limited to "beneficial use."  Casitas, asserted, however, that beneficial use included the mere storage of water or diversion to storage of water.  Relying on California precedent, the Federal Circuit disagreed.  

While the Federal Circuit affirmed the decision of the lower court, this story is not necessarily over.  As held by the lower court and the Federal Circuit, a takings claim will be ripe if the operating criteria impinge on Casitas' right to beneficial use.  The Federal Circuit also explained that because the taking would be analyzed as a physical taking, the statute of limitations with respect to the taking will not begin to accrue until there has been a reduction in Casitas' right to beneficial use.  Therefore, there is still the distinct possibility that a federal court will find that implementation of a biological opinion can result in a compensable taking under the Fifth Amendment.

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Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene.  The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene.  Should a party intervene, the bill would compel the courts to refer the parties, including all that intervened, to either a mediation program of the court or a magistrate judge.  The bill would also prohibit any award of litigation costs for certain "covered settlements," and prohibit the courts from approving a "covered settlement" until the settlement is approved by each state and county in which the Secretary of the Interior believes a species occurs.

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On February 14, 2013, the U.S. Fish and Wildlife Service announced that it had approved a Habitat Conservation Plan (HCP) and incidental take permit (ITP) for the Edwards Aquifer Recovery Implementation Program.  In addition to providing water to agricultural, industrial, and recreational water users, the Edwards Aquifer is the primary source of drinking water for more than 2 million people.  The HCP and ITP cover general activities related to the Edwards Aquifer and associated river systems, including the regulation and production of groundwater for irrigation and livestock purposes, the use of in-stream flows for recreational uses, and other operational and maintenance activities.  The species covered by the HCP and ITP include the fountain darter, San Marcos salamander, Texas wild rice, Texas blind salamander, Peck's cave amphipod, San Marcos gambusia, Cornal Springs dryopid beetle, and the Cornal Springs riffle beetle.  

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As recently reported by a number of news agencies, President Obama will nominate Sally Jewell, the Chief Executive Officer of REI, to be the next Secretary of the Interior.  If the nomination is approved by the Senate, she will be replacing a vacancy created by Ken Salazar, who announced in January that he will be stepping down at the end of March.  It is anticipated that President Obama will make the announcement this afternoon.

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On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming.  Wolverines tend to live in remote and inhospitable places and occur at low densities making it difficult to track their distribution.

The Service's proposed rule states, based on climate modeling, that "habitat loss due to increasing temperatures and reduced late spring snowpack due to climate change is likely to have a significant negative population-level impact on wolverine populations in the contiguous United States.  In the future, wolverine habitat is likely to be reduced to the point that the wolverine in the contiguous United States is in danger of extinction."  While the proposed listing would protect the wolverine from hunting and trapping, the Service has proposed a special rule that would permit a number of activities occurring within the wolverine's habitat to continue.  These activities, which are are often considered to result in take for other species, include infrastructure development, snowmobiling, backcountry skiing, and timber harvesting.  The Service stated in the proposed rule that it does not consider these activities to constitute a significant threat to the species.  

Although it now seems almost certain that the wolverine will receive some level of protection from the federal government, a number of environmental groups would likely argue that the wolverine should have received protection sooner.  There have been multiple petitions to list the wolverine over the past 20 years.  In April 1995, the Service concluded that a petition to list the wolverine as threatened or endangered did not provide substantial information indicating that listing may be warranted.  In October 2003, the Service issued a 90-day finding concluding that a second petition failed to present substantial scientific and commercial information indicating that listing may be warranted.  And in March 2008, after a third petition, the Service published a 12-month finding concluding that listing was "not warranted."  An environmental organization challenged this 12-month finding in federal court, however, and in order to settle the litigation the Service agreed to reconsider the petition.  Thereafter, in December 2010, the Service issued a 12-month finding concluding that listing was warranted but precluded by high priority listing actions.  But in 2011, the Service settled a set of consolidated actions challenging its practices with respect to candidate species.  The wolverine was one of the 251 candidate species covered by these settlements.

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On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical habitat, and the Service failed to provide an adequate response to comments submitted by the State of Alaska.  With respect to one of the areas designated by the Service, the district court explained that "the Service cannot designate a large swath of land in northern Alaska as 'critical habitat' based entirely on one essential feature that is located in approximately one percent of the entire area set aside." 

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This morning, Secretary of the Interior Ken Salazar announced that he is planning to step down at the end of March.  A number of prominent elected officials from the western United States have been mentioned in the press as potential candidates for the position.

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On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural interest in the settlements because they "establish an illegal procedure - the elimination of the Service's statutory authority to find that a proposal to list a species is warranted but precluded by higher priorities."  As for injury, the Safari Club asserted that it had a concrete interest in the litigation because its members hunted three of the candidate species and, so long as the species remained on the candidacy list, its members would be able to continue to hunt the species without fear of violating the Endangered Species Act.  The D.C. Circuit rejected these arguments, finding that there was nothing in the settlement agreements that forced the Service to violate the ESA, and that the Safari Club's interest in delaying the listing of a species to benefit hunting activities was not a protected interest under the ESA.  

As for the alleged procedural injury, the D.C. Circuit found, interpreting the ESA, that there was nothing in the ESA requiring "the Service to find that listing a species is precluded under any specific circumstances."  And, Congress did not authorize judicial review of a warranted finding; "[i]nstead, a person aggrieved by a warranted finding may challenge the Service's final rule listing the species."  In light of these findings, the Court held that the Safari Club could not demonstrate a procedural injury arising from the settlements.

The D.C. Circuit also found that the warranted but precluded process established by the ESA was not intended to promote the take of a candidate species.  Instead, it was intended to be a safety valve for an overburdened agency.  Therefore, because the asserted interest (continued hunting) was contrary to the ESA's statutory purpose (protection of the species), the Safari Club could not establish a concrete injury for purposes of Article III standing.

Accordingly, the D.C. Circuit affirmed the denial of the Safari Club's motion to intervene as a matter of right.  While the Safari Club also moved for permissive intervention, the D.C. Circuit declined to address that issue on appeal, noting that it was an open question as to whether Article III standing is required for permissive intervention.

Earlier this month we reported that 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 in the District of Columbia challenging the ESA settlements.  While the lawsuit raises many of the same arguments recently rejected by the D.C. Circuit, there do appear to be additional arguments pertaining to the procedural process which the D.C. Circuit did not address.  However, because of the substantial overlap, we do anticipate that motion practice will be forthcoming.    

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