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.
 

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.

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.

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.

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.

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.

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.

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

The Pacific Legal Foundation petitioned the Service requesting these actions on December 19, 2011.  The Foundation's petition was based on information contained in the most recent 5-year reviews for these six species, which were completed in 2008 and 2009.

The arroyo toad is a small, dark spotted toad that resides in the headwaters of coastal drainages in southern California.  Due to the achievement of the arroyo toad recovery plan downlisting criterion of establishing 20 self-sustaining populations of the species, the Service recommended that the arroyo toad be downlisted in its 2009 5-year review.  New populations of arroyo toads, as well as additional ranges that were not known before, have been discovered, and threats to the toad, while still present, have been reduced due to conservation measures undertaken for the species and management plans that include the species.

Indian Knob mountainbalm is a perennial plant species found in San Luis Obispo County, California.  It is a diffusely branched evergreen shrub that generally ranges from six to thirteen feet in height.  The Service's primary reason for recommending downlisting the mountainbalm in its 2009 5-year review was the elimination of the threat of development throughout the species' range.

Lane Mountain milk-vetch is another perennial plant species found in the West Mojave Desert in San Bernardino County, California.  The species has increased in abundance and range compared to the time of listing.  Moreover, about 80% of the species' habitat range has been placed under various conservation designations.  The Service therefore recommended downlisting the Lane Mountain milk-vetch in its 2008 5-year review.

The Modoc sucker is a small member of the sucker family found in the Pit River Basin.  The fish generally reaches only seven inches in length at maturity.   The Service recommended downlisting the Modoc sucker in its 2009 review due to a substantial reduction in threats of habitat modification, range reduction, and hybridization.  The principal remaining threat is predation by nonnative fishes.

Santa Cruz cypress is a small-statured tree in the cypress family, with mature trees reaching 82 feet in height.  The species is known from five populations in the Santa Cruz Mountains in Santa Cruz and San Mateo Counties, California.  Due to a reduction in threats to the species and survey information indicating there are a substantially greater number of trees than were known at the time of listing, the Service recommended downlisting the Santa Cruz cypress in 2009.

The Service is requesting scientific and commercial data and other information regarding these six species.  Information must be received on or before August 3, 2012.

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.

The Service found that the Sonoran Desert Area population of bald eagles was discrete under the DPS policy, but that it did not meet the significance requirement.  The Service found no evidence indicating that the population is biologically or ecologically important to the species as a whole.  Specifically, the Service found that (1) the loss of the population would not result in a significant gap in the range; (2) the population does not represent the only surviving natural occurrence of the bald eagle; and (3) the population's genetic makeup does not differ markedly from those of other bald eagle populations.

Despite this finding, the Service took the additional step of determining that, if the Sonoran Desert Area population of bald eagles was a listable entity, listing would not be warranted under the ESA.  The population continues to be protected under the Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act.

The Sonoran Desert Area population of bald eagles includes all territories within Arizona, the Copper Basin breeding area in California, and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert and adjacent transitional communities.

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.

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.

The district court looked to both Eighth and Ninth Circuit decisions that limited the term "take" to the sort of conduct engaged in by hunters and poachers.  These courts would not apply the criminal prohibition on conduct in the MBTA to legal actions that indirectly killed migratory birds.  In particular, the district court pointed to an Eighth Circuit decision where the court contrasted the restrictive reading of "take" under the MBTA with the definition of "take" under the Endangered Species Act, which defines "take broadly to include "harm" and "harass," in addition to the verbs in the MBTA's definition.

In applying the restrictive reading of "take," the district court discussed the implications of a broader reading of the definition that would include conduct that resulted in the incidental take of migratory birds.  The court noted that, if the act were read so that "take" or "kill" prohibited any conduct that proximately resulted in the death of a migratory bird, then many every day activities would be unlawful - and subject to criminal actions - when the caused the death of "pigeons, starlings and other common birds."    Such activities would include ordinary activities, "driving a vehicle, owning a building with windows, or owning a cat," all of which are common and contribute to migratory bird deaths.

The district court concluded by holding, as a matter of law, that lawful commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.  It thus granted Defendants' motion to dismiss.

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.

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."

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.

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.

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.

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.