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

Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at “on-the-ground-levels” in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.

Natural Resources Committee Chairman Doc Hastings (R-WA) said of today’s hearing that it “will provide an opportunity to hear what is working well right now at the state, tribal, and local levels as opposed to ESA-related litigation that divert time and resources away form actual recovery efforts.” He also noted: “Many states, tribes and local communities are effectively implementing conservation efforts to help species. Those closest to the species know firsthand how to protect species better than distant bureaucrats and litigious groups who often hinder the ESA through lawsuits and closed-door settlements.”

For their part, many House Democrats and environmentalists argue that ESA lawsuits are a legitimate measure in their arsenal for protecting endangered and threatened species. For example, Brett Hartl, endangered species director with the Center for Biological Diversity (CBD), said “Representative Hastings and his Republican colleagues are disturbingly out of step with most Americans, who overwhelmingly support protecting endangered species from extinction.” CBD is a frequent litigant in these ESA lawsuits. Hartl championed efforts by citizen and non-profit groups like CBD, stating, “[t]he lesser prairie chicken and sage grouse have declined by at least 90 percent over the past 100 years, but it wasn’t until citizens petitioned and sued to get protection for these animals that concrete state, local and private conservation efforts to save them from extinction began.”

Tomorrow, the House Judiciary Committee will hold a hearing on the “Sunshine for Regulatory Decrees and Settlements Act,” which would require agencies entering into consent decrees and settlement agreements to publish proposed versions of those agreements for public review and comment prior to entering into them. The bill is sponsored by Sen. Chuck Grasseley (R-IA) and Rep. Doug Collins (R-GA). The bill previously passed the House last year, but died in the Senate.

Republicans argue that the proposed bill would close a back door that environmentalists use to circumvent the usual rulemaking process. John Walke, the clean air and climate change director for the Natural Resources Defense Council disagrees, arguing that the proposed bill “is designed to obstruct enforcement of federal health, safety, environmental and consumer protection laws” and allow industry to exert undue influence over court actions.

The Judiciary Committee hearing will be held tomorrow, June 5, at 10 a.m.
 

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House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY).  The ESA Working Group will include a total of 13 republican members from a broad geographic range.  It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat.  Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”

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In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat.  In dismissing the case, the court held that it lacked subject matter jurisdiction over the matter because plaintiffs’ notice of intent to file the action failed to comply with the ESA’s notice requirements.  Noting that the purpose of the ESA’s 60-day notice requirement is to alert the government of alleged violations so that they may be resolved without litigation, the court held that plaintiffs’ notice failed to fulfill that purpose.  Specifically, the court held that plaintiffs did not sufficiently inform USFS of the specific alleged violations that they later asserted in their complaint.  Plaintiffs’ failure to strictly comply with the notice requirement was an absolute bar to their subsequent action.  The court’s holding emphasizes the importance of strict compliance with the 60-day notice requirement prior to challenging alleged violations of the ESA.

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On March 13, 2013, the U.S. Fish and Wildlife Service (Service) extended (pdf) the public comment period for two proposed rules relating to the Gunnison sage-grouse (Centrocercus minimus).  As we previously reported, the Service published a proposed rule to list the species as endangered under the Endangered Species Act (ESA) in January.  In conjunction with that proposed rule, the Service also proposed to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah.  The 60-day public comment period for these two proposed rules was scheduled to end March 12, 2013, but the Service received several requests to extend the period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.  The public comment period is now open until April 2, 2013.

Among those requesting extension of the comment period were congressional leaders in Colorado and Utah, who sent a letter to the Service's regional director requesting the Service extend the period 60 days because of the "great interest and concern" among the communities they represent.  Of particular concern to the lawmakers was the critical habitat designation because it could impact a host of land uses on both public and private land, including the development of mineral resources.

While the Service extended the public comment period for the two proposed rules, the extension fell short of the 60 days requested by the congressional leaders.  As we previously reported, the Service is under a deadline imposed through a legal settlement with WildEarth Guardians to review and address the needs of more than 250 species listed as candidate species for protection under the ESA, including the Gunnison sage-grouse.  The deadline for review of the Gunnison sage-grouse is September 30, 2013.  With the public comment period extended for only three weeks - to April 2nd - the Service indicates it intends to issue its final determinations with respect to the proposed rules by the agreed upon deadline.

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The U.S. Fish and Wildlife Service (Service) recently proposed (pdf) to remove the island night lizard (Xantusia riversiana) from its current listing as threatened under the Endangered Species Act (ESA).  The proposed removal is based on successful recovery efforts led by the U.S. Navy and National Park Service, which have resulted in the achievement of nearly all of the objectives established in the recovery plan for the species.

Island night lizards are found only on the Channel Islands - San Clemente Island, San Nicolas Island, and Santa Barbara Island - off the southern California coast.  Historic land use practices, including ranching and grazing, severely impacted habitat for the species.  Additionally, introduction of nonnative species, including goats, pigs, and rabbits, greatly damaged suitable island night lizard habitat. 

The island night lizard was originally listed as threatened under the ESA in 1977.  The Service implemented a recovery plan for the species in 1984, which focused on habitat restoration and education.  By the mid-1990s, the nonnative species responsible for most of the habitat loss were removed from the islands, allowing for the slow recovery of the island night lizard. 

Today, there are an estimated 21 million island night lizards on San Clemente Island, about 15,300 on San Nicolas Island, and about 17,600 on Santa Barbara Island.  Though almost all of the recovery plan objectives for the species have been achieved, both the Navy and the National Park Service are actively cultivating native plants to further habitat restoration on San Nicolas and Santa Barbara Island.

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 On January 11, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA).  As we previously reported, the sage-grouse had been on the candidate species list since January of 2000, but the Service was not authorized to prepare a proposed rule to list the species or designate critical habitat until 2011, when additional resources became available.

The Gunnison sage-grouse is the smaller cousin of the greater sage-grouse.  The species occurs in seven widely scattered and isolated populations in southwestern Colorado, including one that extends into southeastern Utah.  The core and largest population of the species is considered stable, while other populations are in decline.  

The Service has identified habitat loss and fragmentation as key threats to the Gunnison sage-grouse.  According to an advance notice published in the Federal Register, "The human population is increasing  throughout much of the range of the Gunnison sage-grouse, and data indicate this trend will continue.  With this growth, we expect an increase in human development, further contributing to loss and fragmentation of Gunnison sage-grouse habitats."  Accordingly, the Service also published a proposed rule (pdf) to designate approximately 1,704,227 acres of critical habitat for the species in Colorado and Utah.

The proposed listing and designation of critical habitat is the product of the Service's legal settlement with WildEarth Guardians and the Center for Biological Diversity that required either a proposed listing decision or a "not warranted" determination for the species by September 30, 2013.  The Service is accepting comments on both the proposed listing of the Gunnison sage-grouse and the proposed designation of critical habitat through March 12, 2013.

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On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."  The court based its decision to vacate the listing on the Service's failure to adequately define "foreseeable future" as it applied to the species.  The Final Rule defined "foreseeable future" as "that time period over which events can reasonably be anticipated."  The court found that this definition was too generic, and that the definition of "foreseeable future" must be made on a species-by-species basis and through an analysis of time frames applicable to the particular species at issue.  It remanded the issue to the Service for further consideration.

The Service published its Final Rule listing slickspot peppergrass as threatened on October 8, 2009.  Multiple parties, including Idaho Governor C.L. "Butch" Otter (R), sued the Service contending that: (1) the listing was not based upon the "best available science"; (2) a species may only be listed under the ESA if it is likely to become an endangered species in the foreseeable future, and the Service failed to provide an adequate definition of the "foreseeable future" in its Final Rule; (3) the Final Rule improperly discounted the significance of state conservation efforts; and (4) the Service failed to provide the State of Idaho with a letter outlining the justifications for the listing, which is required under section 4 of the ESA when a state files comments disagreeing with all or part of a proposed regulation.

Slickspot peppergrass is a small, flowering plant in the mustard family.  It is endemic to Idaho, and has never been found outside of the state.  The species is found in "slickspots," which have been described as small circular patches of ground with unusual soil chemistry that create visually distinct openings in the surrounding sagebrush environment.  Scientists believe that the slickspots took thousands of years to form and, once destroyed, cannot be re-created. 

The litigation was the fourth occasion since 2001 that a federal court had been asked to review a decision by the Service concerning whether slickspot peppergrass should be listed as threatened or endangered.

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The U.S. Fish and Wildlife Service (Service) recently announced  (pdf) that it finalized its designation of critical habitat for the northern spotted owl (Strix occidentalis caurina) in the Pacific Northwest.  The final rule designated 9.29 million acres of federal land and 291,750 acres of state land as critical habitat for the species.  The final rule reduced the amount of habitat by approximately 4.3 million acres from a February 2012 proposal.  The Service asserts that this designation comported with a Presidential Memorandum directing the Department of the Interior to give careful consideration to providing the maximum exclusion of areas from the final rule.

The Service's final rule represents a balancing act between conservation of the northern spotted owl and recognition of the importance of the designated lands to the Pacific Northwest's logging industry.  According to the Service, the designation will provide federal agencies, including the Bureau of Land Management and the U.S. Forest Service, with the information they need to ensure protection for remaining old growth forests, while implementing ecological timber harvests to improve habitat and its resilience to wildfire and insect infestations.  The Service maintained that the designation of critical habitat on state lands, primarily in Oregon, will have almost no impact on the states' management of those lands or timber harvests on those lands because a habitat designation affects only federal actions or proposed activities involving federal funding or permitting.

The American Forest Resource Council, which represents logging interests in the Pacific Northwest, said that the draft critical habitat plan ignored threats such as the non-native barred owls (Strix varia) and catastrophic wildfire on the spotted owl populations.  The barred owl is a larger and more aggressive species that migrated west in the late 1950s and have spread throughout northern spotted owl habitat.  They are displacing the spotted owl populations and compete with the spotted owl for many of the same foods.  In releasing its final rule, the Service also announced that it is working on a concurrent strategy to manage barred owl populations.  

The Service's final rule substantially increased the amount of land designated as critical habitat relative to the previous rule, issued in 2008 under the Bush administration. The critical habitat designation revised that 2008 rule in response to an order by the U.S. District Court for the District of Columbia.

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The California Department of Fish and Game (DFG) recently completed its initial evaluation (pdf) of a petition to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA).  The Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath-Siskiyou Wildlands Center (collectively, Petitioners) submitted a petition for the listing to DFG on March 5, 2012.  DFG recommended the Fish and Game Commission (Commission) accept the petition for further consideration, finding that there is sufficient information to indicate that listing the gray wolf under CESA may be warranted. 

DFG noted that the petition to list the gray wolf presented "unprecedented" challenges.  According to DFG, Petitioners failed to submit any materials referenced in the petition to the Commission or to DFG and, in some instances, failed to present any reference to support a claim.  DFG stated that the petition on its face did not provide sufficient information to indicate the petitioned action may be warranted.  DFG nevertheless evaluated the petition on its face in relation to other relevant information it possessed or received during its initial review, as it is required to do by law.  Such information included the materials referenced in the petition, which DFG obtained through its own effort.

Very little scientific information exists regarding gray wolves that is specific to California.  The only concrete information to date is that a single male wolf - OR7 - first crossed into California in December 28, 2011.  Before OR7, the last confirmed wolf in California was in the state in 1924 and, since then, "sightings" have turned out to be coyotes, dogs, wolf-dog hybrids, etc.  Anecdotal evidence suggests that gray wolves historically were distributed broadly throughout California, though DFG concludes that the lack of documented reliable observations in the state suggests that the population was not large and has been extirpated for approximately 80 years.

The Commission will vote on DFG's recommendation in early October.  As we recently reported, the federal government is currently considering delisting the gray wolf in Wyoming under the federal Endangered Species Act.

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The U.S. Fish and Wildlife Service (Service) recently announced a proposal to protect 40 different species native to Hawaii under the Endangered Species Act (ESA).  The Federal Register notice of the announcement can be found here (pdf).  The proposal encompasses 37 plant species, including herbs, shrubs, trees, and ferns, and three species of tree snails.  The species are native to the Hawaiian Islands of Moloka'i, Lana'i, Kaho'olawe, and Maui.  They are found in 11 different ecosystem types.

The Service's announcement also included critical habitat designation for 39 of the 40 species, totaling approximately 271,062 acres of land, including occupied and unoccupied habitat. Of that total, 192,364 acres are located on Maui, 46,832 acres are on Moloka'i, 25,413 acres are on Lana'i, and 6,453 acres are on Kaho'olawe.  Almost half of the designated area was already designated as critical habitat for other listed species.  Loyal Mehrhoff, field supervisor for the Pacific Islands Fish and Wildlife Office said of the listing, "The Service is implementing an ecosystem-based approach to the proposed listing and designation of critical habitat in Hawaii - which leads the nation in the number of federally listed and candidate species - to better prioritize, direct, and focus conservation and recovery actions."

Threats to the listed species include: (1) habitat degradation and direct consumption by nonnative pigs, goats, sheep, and deer; (2) direct consumption by nonnative pigs, goats, sheep, deer, other nonnative vertebrates and invertebrates; (3) habitat destruction and modification by nonnative plants, stochastic events (e.g. hurricanes, flooding, etc.), agriculture and urban development, and climate change; and (4) inadequate regulatory  mechanisms and other species-specific threats.  The Service found that all 40 species face immediate and significant threats throughout their ranges.

The Service announced its proposal to protect the 40 species, native to the Hawaiian Islands of Moloka'i, Lana'i, and Maui as endangered, as well as the designation of critical habitat for 135 species, in June 2012.  The Service's announcement follows a 2004 petition drafted by the Center for Biological Diversity asking the Service to list 227 different species under the ESA.

Photo by Hank Oppenheimer, Plant Extinction Prevention Program, U.S. Fish and Wildlife Service

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