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

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) its decision that the Sonoran Desert Area population of bald eagles (Haliaeetus leucocephalus) does not warrant protection under the Endangered Species Act (ESA).  The Service's conclusion is the result of a revised 12-month finding on a petition to list the population as threatened or endangered under the ESA.  The Service concluded that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS), and that listing the population is not warranted at this time.

The Service originally found that the Sonoran Desert Area population of bald eagles was not a listable entity under the ESA on February 25, 2010.  The Center for Biological Diversity and Maricopa Audubon Society challenged that decision in October 2010.  On November 30, 2011, the U.S. District Court for the District of Arizona ordered the Service to draft a new 12-month finding.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A  judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River.  On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam.  NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016.  The Humane Society challenged NMFS's decision, claiming that NMFS erred in determining that the sea lion's predation on the listed salmonids was a significant obstacle to their recovery.  U.S. District Judge James E. Boasberg denied the Humane Society's request to stop the program pending the outcome of the litigation.  Judge Boasberg did, however, reduce the total annual amount of sea lions authorized to be killed from 92 to 30.  Officials from the Oregon Department of Fish and Wildlife have stated that they did not anticipate the removal of more than 30 sea lions in any one year despite the higher authorization.

As we previously reported, in October 2011, a NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted to recommend that NMFS permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead.  NMFS had suspended its program in July 2011 in the wake of an agreement (see earlier post) between wildlife advocates and the two states to temporarily suspend lethal sea lion removal as well as legislation introduced in the House of Representatives that would permit the states to remove sea lions without complying with the MMPA (see prior post regarding H.R. 946).

The Humane Society's effort to stop the removal of the California sea lions is their third since NMFS first authorized the program in 2008.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii.  NMFS provided a 90-day comment period, ending August 31, 2011.

NMFS received numerous requests for an extension of the comment period.  The requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation.  In response to those requests, NMFS elected to extend the deadline.  The public will now have until January 6, 2012 to comment on NMFS's proposed designation.

Documents and reference materials related to the proposed rulemaking are available via the NMFS Pacific Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Fish and Wildlife Service (Service) recently announced (PDF) the availability of the 2011 Revised Recovery Plan for the Mojave Population of the Desert Tortoise (Gopherus agassizii) (PDF).  The Plan calls for an adaptive management approach, something the Service says is necessary to "accommodate changing management needs" of the species.  In contrast, an earlier earlier recovery plan, finalized in 1994, focused on traditional mitigation measures to achieve recovery of the threatened desert tortoise.

Key elements of the 2011 Recovery Plan include developing, supporting, and building partnerships to facilitate recovery; protecting existing populations and habitat, and instituting of habitat restoration where necessary; augmenting depleted populations in a strategic, experimental manner; monitoring progress toward recovery, including population trend and effectiveness monitoring; conducting applied research and modeling in support of recovery efforts within a strategic framework; and implementing a formal adaptive management program that integrates new information and utilizes conceptual models that link management actions to predicted responses by Mojave desert tortoise populations or their habitat.

The Service characterizes the 2011 Recovery plan as a "living document."  Ren Lohoefener, director of the Service's Pacific Southwest Region, stressed that the "ability to conserve the Mojave population of the desert tortoise and lead to eventual recovery of this threatened species depends on science and innovation."  The 2011 Recovery Plan calls for regional recovery implementation teams that bring together individuals from land management, scientific, conservation, and land use groups to work with the Service to implement, track, and evaluate recovery actions.  According to the Service, "[b]y continuous examination of vulnerability, exposure, sensitivity, and adaptive capacity of the desert tortoise, resource managers will be able to update the Plan as it is being implemented with conservation measures that will help the desert tortoise recover."

The 2011 Recovery Plan's adaptive management approach is highlighted by the Service's current plan to add a chapter focusing on measures related to renewable energy projects, something that environmental groups claim is sorely lacking.  The Service notes that, when the Recovery Plan was being developed, they did not anticipate the extent to which the landscape of the desert ecosystems in the Pacific Southwest might become modified as a result of newfound federal renewable energy priorities.  While the Recovery Plan does discuss renewable energy development in a number of locations (for example, it notes that impacts from large-scale energy development might impact the desert tortoise through habitat fragmentation, isolation of desert tortoise conservation areas, and the subsequent possibility of restricted gene flow between those areas), it does not provide a single, comprehensive strategy for addressing renewable energy.  The Preamble to the 2011 Recovery Plan notes that the new chapter on renewable energy "will act as a blueprint to allow the Service and [its] partners to comprehensively address renewable energy development and its relationship to desert tortoise recovery."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law.  Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program.  The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules - unless they were to downlist or delist species.

The ESA has not been updated in 23 years, and Chairman Hastings stressed that "Congress needs to do its job to reauthorize the law."  He stated, "The law is expired, failing to achieve its fundamental goal of species recovery, and has become a tool for expensive debilitating lawsuits."  Moreover, he stressed, that Congress has "a duty to act on the ESA's reauthorization and it needs to be updated in a calm, careful and bipartisan way."

According to Chairman Hastings, "The Interior Appropriations Bill that Chairman Simpson has brought to the House Floor prioritizes funding to ensure that core responsibilities and environmental protections are met."  As applied to the ESA, the bill originally focused on the continued funding of recovery activities while limiting funds for new listings and habitat designations.

Prioritizing funds for recovery activities, while limiting those available for listings, was an attempt to curb the growing number of lawsuits against the Fish and Wildlife Service and the National Marine Fisheries Service.  Chairman Hastings stated, "By striking this provision, the Dicks amendment would reopen the litigation floodgates."

Despite Chairman Hastings' misgivings, passage of the Dicks Amendment is being hailed by some as "a major triumph for the Fish and Wildlife Service and environmentalists."  The Center for Biological Diversity (Center) called the vote a "victory for imperiled species."  Characterizing the original provisions of the appropriations bill related to the ESA as the "extinction rider," the Center's endangered species program director, Noah Greenwald, said that "it would have been a disaster for hundreds of animals and plants across the country that desperately need the help of the Endangered Species Act to survive."

The House is set to vote on the full appropriations bill in the coming days.  If passed, it will move to the Senate.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species.  The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues.  The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.

The Service has been subject to a barrage of litigation regarding the listing of species.  Petitions to list more than 1,000 species have been filed since 2007, and this has created an enormous backlog for species awaiting listing determinations.  Dan Ashe, Director of the Service, stated, "This work plan will allow the Service to more effectively focus our efforts on providing the benefits of the ESA to those imperiled species most in need of protection." 

As we previously reported, the Service and WildEarth had entered into an settlement agreement in May 2011 (May Agreement) under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (PDF) in the Federal Register.  In return, WildEarth agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program.  WildEarth also agreed to limit the amount of petitions it submits each fiscal year for the duration of the May Agreement.  The court stayed its approval of the proposed May Agreement when CBD opposed approval after being left out of the negotiation process.  CBD had filed many of the original lawsuits for species covered by the May Agreement.

The new work plan modifies some of the deadlines imposed by the May Agreement with WildEarth.  It sets deadlines for 40 species, while incorporating the framework set in the May Agreement for how the Service will address decisions related to hundreds of other species.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On June 16, 2011, the National Ocean and Atmospheric Administration (NOAA) released a draft of its scientific integrity policy (pdf).  The policy comes in response to President Obama’s March 9, 2009 memorandum directing the Office of Science and Technology Policy (OSTP) to consult with relevant executive departments and agencies to recommend a plan to achieve “the highest level of integrity in all aspects of the executive branch’s involvement with scientific and technological processes.”  Director of OSTP John Holdren issued further guidance on scientific integrity in a December 17, 2010 memorandum.

NOAA’s draft policy is comprehensive, covering both employees and contractors involved with scientific activities.  It provides a “Code of Conduct” that establishes formal guidance for NOAA scientists.  It also includes a training component.  The policy encourages scientists to publish their data and findings and to talk to the media about their research, in an effort to be leaders in the scientific community.

The policy has drawn praise from the Union of Concerned Scientists (UCS).  Director Francesca Grifo cautioned, however, that NOAA will need the support of its parent agency, the Department of Commerce, to implement the policy.  Though expressing praise for the policy, Grifo had several recommendations for its improvement, including the use of visitor logs to inform the public about who is meeting with agency officials and publicly reporting on the progress of efforts to address alleged scientific misconduct.

In addition to the draft policy, NOAA also released a handbook (pdf) that outlines procedures to respond to allegations of misconduct. Both draft documents are available at www.noaa.gov/scientificintegrity. The policy is open for public comment until August 15, 2011.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On May 17, 2011, the U.S. District Court for the District of Columbia stayed its approval of a proposed settlement agreement (Agreement) aimed at expediting findings related to petitions to list 251 species. The Center for Biological Diversity (Center) opposed approval of the Agreement after being left out of the negotiation process.

As we previously reported, plaintiff WildEarth Guardians (Guardians) entered into the Agreement with the Secretary of the Interior and the U.S. Fish and Wildlife Service (Service), under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (pdf) in the Federal Register.  In return, Guardians agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program. Guardians also agreed to limit the amount of petitions it submits each fiscal year for the duration of the Agreement.

The Center expressed frustration that it only learned of the negotiations for the first time upon the parties’ filing of their joint motion for approval of the Agreement. The Center argues that the obligations imposed on the Service are unenforceable, and it characterizes the Agreement as illusory. The Center also claims that the Agreement is contrary to public policy because: (1) it undermines other purposes of the Listing Program; and (2) its overall effect would be to stymie petitions and lawsuits to enforce the ESA’s statutory deadlines, in contravention of the ESA, which expressly provides citizens with the right to petition for species listings and to seek the Service’s action on such petitions within the ESA’s statutory deadlines.

The court has scheduled a Status Conference for June 20, 2011, at which time it will review the progress made towards crafting a new agreement, as well as address the need to continue the litigation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Fish and Wildlife Service (Service) announced that it has developed a six-year work plan that would allow the Service to systematically review and address the needs of more than 250 species currently listed as candidate species for protection under the Endangered Species Act (ESA). The work plan is part of a settlement agreement (PDF) between the Service and WildEarth Guardians (WildEarth) that will be filed in a consolidated case in the U.S. District Court for the District of Columbia.

While the Candidate List was envisioned as an administrative tool that would identify species for which the Service would shortly make listing decisions, the dramatic increase of listing petitions and lawsuits has led to a backlog of species on the list. The Service has received petitions to list more than 1,230 species in the last four years – nearly as many petitions as the amount of species listed under the ESA in the previous 30 years. The work plan provides a schedule for making listing determinations for current candidates species, and it includes some species that have been petitioned for protection under the ESA.

• Email This
• Print
• Comments
• Trackbacks
• Share Link