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.

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.

Acting Service Director Rowan Gould noted that the Service has begun a review of its implementation of the ESA designed to identify ways to eliminate unnecessary procedural requirements; improve the clarity and consistency of regulations; engage the states, tribes, conservation organizations, and private landowners as more effective conservation partners; encourage greater creativity in the implementation of the ESA; and reduce the frequency and intensity of conflicts as much as possible. This review, Director Gould argues, will ultimately help the Service achieve its highest priority of making the implementation of the ESA less complex, less contentious, and more effective.

Numerous lawsuits related to the backlogged listing petitions led the Service to initiate the consolidation and transfer of the pending lawsuits from numerous district courts to the U.S. District Court for the District of Columbia. The Service viewed consolidation as providing a single forum in which to resolve the many issues in the various suits in a comprehensive and efficient manner. The work plan would allow the Service to focus its efforts on species most in need of protection, rather than on deadline litigation. This has been an area of growing concern for the Service’s listing determinations under the ESA.

The new modeling tool synthesizes more than 20 years of demographic data regarding the spotted owl, including information from regional experts throughout the spotted owl’s range in Washington, Oregon, and California. It uses this information to provide recovery partners with the most accurate rangewide picture of where spotted owls nest and roost and where they are likely to do so in the future. The result is that recovery partners can see what areas are most important to the spotted owl’s continued survival and recovery. The modeling tool will also allow recovery partners and land managers to evaluate the long-term implications of specific recovery actions.

The draft revised recovery plan was initially released in September 2010. The modeling tool was incomplete during the original 90-day comment period, which elicited great concern and criticism that the draft plan did not rely on the best available science. The original Appendix C on habitat modeling contained initial maps showing suitable spotted owl habitat at different levels of quality. While this information served as the underlying data allowing for evaluation of different conservation measures, the updated Appendix C includes more information no how the modeling tool allows the Service to compare potential spotted owl population responses to different habitat management scenarios and conservation measures.

The 30-day comment period on the new information ends on May 23, 2011. Pursuant to a federal court order resulting from previous litigation over the recovery plan, the Service must complete its final revised recovery plan by June 1, 2011. This has created concerns that the Service will not have adequate time to respond to any comments submitted during the review period.

The Gunnison sage-grouse is a small ground bird with speckled plumage and an ornate mating ritual.  The historic distribution of the species included southwestern Colorado, southeastern Utah, northeastern Arizona, and northwestern New Mexico.  Today, there are approximately 5,000 breeding individuals in seven separate populations in southwestern Colorado and southeastern Utah.  The largest of those populations consists of about 4,000 birds inhabiting the Gunnison Basin.  Predation and the fragmentation and loss of habitat due to human activity are among the primary factors contributing to the bird’s declining populations.

If the Service decides to list the Gunnison sage-grouse, it will mark the end of a decade-long effort to list the species under the ESA. The Gunnison sage-grouse was originally placed on the candidate species list in January 2000 shortly before the Service received a petition (PDF) to list the species. Now that resources have become available and it has approval, the Service will prepare a proposed rule using data about the species and its habitat.  After publication of the proposed rule in the Federal Register and a 60-day public comment period, the Service will have one year to make a final decision whether to list the Gunnison sage-grouse as threatened or endangered.  It was reported that the Service would designate critical habitat at the same time it issued a listing decision.

The wood bison is a relative of the American plains bison. Historically, the wood bison occupied Canadian ranges north of the plains bison. All wild wood bison presently are found in northwestern Canada. While woods bison populations were once estimated at about 168,000, the subspecies was nearly eliminated by the late 1800s. Like the plains bison, overharvest is estimated to be the major cause for the wood bison’s decline.

ESA section 4(f) generally directs the Service to develop and implement recovery plans for endangered and threatened species, but no such plan has been instituted for the woods bison because no wild populations currently exist in the United States. However, in Canada, the National Wood Bison Recovery Team (“NWBRT”) published a national recovery plan. This plan established four primary goals: (1) reestablish at least four discrete, free-ranging, disease-free, and viable populations of 400 or more wood bison in Canada; (2) foster the restoration of wood bison in other parts of their original range and in suitable habitat elsewhere; (3) ensure that the genetic integrity of wood bison is maintained without further loss as a consequence of human intervention; and (4) restore disease-free wood bison herds.

In 1978, there was only one free-ranging, disease-free herd with 300 individuals. However, a status review in 2000 revealed that the number of disease-free herds had increased to six, and the total population had grown to approximately 2,800 individuals. Since 2000, an additional disease-free, free-ranging herd has been established, bringing the total number of herds to seven and the total number of disease-free, free-ranging wood bison to approximately 4,400. Four of the seven existing herds have populations of 400 or more, thus meeting the NWBRT’s first recovery goal. There are also four captive herds that have been established, though only three of those herds are currently viable.

The NWBRT previously petitioned the Service to reclassify the wood bison from endangered to threatened on November 26, 2007. After issuing a 90-day finding  (pdf) concluding that the petition presented substantial scientific and commercial information indicating that reclassification may be warranted, the Service initiated a status review. The proposed reclassification of the wood bison constitutes the Service’s 12-month finding on the petition to reclassify. The Service is seeking public comments on the proposed rule. Written comments must be received by April 11, 2011, and written requests for a public hearing must be received by March 25, 2011.

Pacific Legal Foundation petitioned the Service to delist the Eureka Valley evening primrose (Oenothera californica (avita) subsp. eurekensis) and Eureka Valley dunegrass (Swallenia alexandrae). The petition also requested that the Service reclassify the tidewater goby (Eucyclogobius newberryi), San Clemente Island broom (Lotus dendroideus var. traskiae), San Clemente Island bush mallow (Malacothamnus clementinus), and San Clemente Island Indian paintbrush (Castilleja grisea) from endangered to threatened. The petition was based on the analysis and recommendations contained in the Service’s most recent 5-year reviews of the species, which were completed in 2007.

Under the ESA, when a private individual or organization petitions the Service to list, delist, or change the status of a species, that triggers a 90-day period within which the Service must decide whether the action is supported by substantial information. Upon finding that a petition presents substantial information, within 12 months of receiving the petition, the Service conducts an in-depth review of the status of each species. The 12-month finding will determine whether delisting or reclassifying any of the six species is warranted.

The ESA also requires that the Service conduct status reviews of listed species at least once every 5 years. The Service has elected to conduct these 5-year reviews simultaneously with the 12-month status review triggered by its finding of substantial information in support of the proposed actions.

The Service’s notice announcing the reviews opened a 60-day comment period. Comments will be accepted until March 19, 2011. To ensure that review of the 6 species utilizes the best scientific and commercial data available, the Service is soliciting information about the status of the species.

The mountain yellow-legged frog consists of two species.  The southern mountain yellow-legged frog (Rana muscosa) is native to the southern Sierra Nevada and the Transverse Ranges.  The Sierra Nevada mountain yellow-legged frog (Rana sierrae) is native to the northern and central Sierra Nevada.  Though once abundant in their respective habitats, re-surveys of historic locations (PDF) show that 95.2% of R. muscosa and 93.3% of R. sierrae populations are locally extinct.  Now that the Commission has declared the mountain yellow-legged frog a candidate species, the Department of Fish and Game must submit a written report within one year indicating whether listing the species is warranted.