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

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation, predation, disease, climate change, and other factors impacting the species’ vitality. The Service also determined that Yosemite toad populations are likely to decrease due to habitat degradation and anticipated effects of climate change.

In addition to the proposed listing, the Service also published a proposed rule (pdf) to designate critical habitat for the three species. Specifically, the Service proposed designating over 1.1 million acres of critical habitat for the Sierra Nevada yellow-legged frog, over 200,000 acres for the northern DPS of the mountain yellow-legged frog, and over 750,000 acres for the Yosemite toad. The critical habitat designations include acreage in seventeen counties across California, ranging from Tulare County in the south to Butte County in the north.

Comments regarding either proposed rule must be submitted by June 10, 2013.

 

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The National Marine Fisheries Service (NMFS) recently proposed merging its Southwest and Northwest administrative regions, which would result in a savings of $3 million annually in management costs. NMFS is a component of the Department of Commerce, and is responsible for administering the Endangered Species Act as it applies to marine species and their habitats.  Currently, the NMFS Southwest region manages California, and the Northwest region covers Washington, Oregon, and Idaho. The Obama administration proposed the merger to “improve coordination in areas where there is currently joint decision-making” by the two regions.

The merger could make it more difficult for Californians to access management because the regional headquarters would likely be located in Seattle. However, according to Kevin Chu, a deputy Southwest regional administrator, the Long Beach office would remain open. Also, although there would likely be staff cuts as a result of the merger, Chu claims that the cuts would be achieved through attrition and retirement at the senior level. The change is expected to occur within the next 18 months. (Bettina Boxall, Los Angeles Times (April 9, 2013)).

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On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA).  The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi. 

The loggerhead sea turtle includes nine distinct population segments (DPS), and the Northwest Atlantic Ocean DPS is currently listed as threatened (pdf) under the ESA.  The critical habitat designation would help protect foraging and nesting grounds for the species.  According to the Service, the proposed designation is limited to occupied habitat containing "the physical and biological features essential to the conservation of the species in the terrestrial environment."  Comments on the proposed designation must be submitted by May 24, 2013.

The National Marine Fisheries Service (NMFS) joined the Service in listing the species in 2011.  NMFS is currently evaluating specific areas in the marine environment in order to issue a proposed rule designating in-water critical habitat for the loggerhead sea turtle later this year.

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In Conservation Congress v. U.S. Forest Service, No. CIV. 2:12-02416 (E.D. Cal. Feb. 26, 2013), the United States District Court for the Eastern District of California denied (pdf) a motion brought by the U.S. Forest Service and U.S. Fish and Wildlife Service to limit review of claims brought under the citizen suit provision of the Endangered Species Act (ESA) to the administrative record.  The court denied defendants' motion because it "would be premature to determine at this early stage of the proceedings" whether plaintiffs' claims “should be strictly limited to the administrative record.”

Plaintiffs are challenging defendants' actions relating to three proposed logging projects in the Mendocino National Forest under the ESA and the National Environmental Policy Act. Among other things, plaintiffs are asserting that defendants failed to consult under section 7 of the ESA.  

Defendants brought a motion to limit review of plaintiffs' ESA citizen suit claims to the administrative record.  Specifically, defendants argued that Administrative Procedure Act principles of record review apply to claims brought under the citizen suit provision of the ESA.  Consistent with other recent decisions, the court rejected defendants' argument.     

The court ruled that defendants could later object to the court’s consideration of extra-record materials, but allowed plaintiffs to pursue discovery regarding their ESA citizen suit claims.

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On January 25, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Zuni bluehead sucker (Catostomus discobolus yarrowi) as endangered under the Endangered Species Act (ESA).  The sucker had been on the candidate list since 2001, when the Service determined that the species warranted protection under the ESA, but listing was precluded by higher priority listing activities.

The Zuni bluehead sucker has a torpedo-shaped body and bluish head.  The average length of a mature fish is approximately 200 centimeters (8 inches).  The species inhabits the Zuni River watershed in New Mexico, the Little Colorado watershed in eastern Arizona, and Canyon de Chelly in northeastern Arizona.  

In conjunction with its proposed listing, the Service also proposed designating 293 stream miles of critical habitat for the species in Arizona and New Mexico and on Navajo Nation land.  According to the Service, the species' habitat has been lost or degraded due to water withdrawal, logging, overgrazing, development, and erosion.

(Photograph courtesy of the Fish and Wildlife Service).

The public comment period for the proposed rule will close March 26, 2013.

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The California Department of Fish and Wildlife (Department) has determined (pdf) that there is sufficient scientific information to petition to list the Northeastern Pacific (NEP) population of white sharks (Carcharodon carcharias) as threatened or endangered under the California Endangered Species Act.  Currently, the take and possession of white sharks is protected from sport and commercial fishing activities, with limited exceptions, under existing laws.  However, the scientific information in the petition demonstrates that the species may benefit from additional regulation.  If the petition is accepted by the California Fish and Game Commission (Commission) for consideration, the Commission will initiate a year-long scientific-based review of the species to determine whether or not listing is warranted.

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On Tuesday, December 18, 2012, the U.S. Fish and Wildlife Service (Service) proposed upgrading the status of the wood stork (Mycteria americana) from endangered to threatened under the Endangered Species Act (ESA).  The proposed change is in response to improvements in the population and habitat of the species based on the best available scientific information.

Dan Ashe, Director for the Service, remarked that the proposed reclassification "demonstrates that the [ESA] works" and that "the species is making real progress toward recovery."  The wood stork was originally listed (pdf) as endangered in 1984; since that time, the breeding population has substantially improved.  Specifically, the average number of nesting pairs has increased from 7,086 to 8,996 over the last decade.  While these nesting benchmarks are still below the five-year average of 10,000 needed for delisting, the population increase is encouraging.  The wood stork's breeding range has also expanded to twice its former size.  The species used to breed primarily in central and southern Florida, but its current breeding range includes wetland areas in Georgia and South Carolina.

The proposed reclassification will not affect any protective or conservation measures in place for the species under the ESA.  Rather, it recognizes the improvements in the wood stork's population and is intended to encourage the continuation of collaborative conservation efforts, with the ultimate goal of delisting the species in the coming years.

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On November 30, 2012, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to list the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  While voluntary conservation planning efforts are ongoing, the Service decided (pdf) to move forward with the proposed rule based on “scientific evidence that the lesser prairie-chicken and its habitat are in decline.”  The Service encouraged the public and scientific community to comment on the proposed rule during the 90-day comment period.  The Service will make its final determination based on the best available science.

As previously reported, stakeholders are working towards reaching voluntary agreements to protect the lesser prairie-chicken in lieu of listing the species under the ESA. The Service acknowledged these efforts and stated “we are encouraged by current multi-state efforts to conserve the lesser prairie-chicken and its habitat, but more work needs to be done to reverse its decline.”  In a letter (pdf) encouraging the Service to consider these efforts when making its decision to list the species, Senator Tom Udall (D - N.M.) expressed concern over the impact of a listing decision on landowners, ranchers and other industries in New Mexico.  Others, including Senator Jim Inhofe (R - Okla.), are pleased with the Service's proposal to list the species as threatened, rather than endangered, because it will have less impact on agriculture, highway construction and wind energy development projects in Oklahoma.  The Bureau of Land Management (BLM), however, is committed to protecting the lesser prairie-chicken without assistance from the ESA.  Today, BLM announced that it purchased 1,789 acres of private land in southeastern New Mexico as additional habitat for the species. (San Francisco Chronicle, Dec. 7, 2012).

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On November 26, 2012, the National Marine Fisheries Service (NMFS or the Service) accepted a petition to delist a distinct population segment (DPS) of the Southern Resident killer whales, which is currently listed as endangered under the Endangered Species Act (ESA). 

The DPS, estimated to include 88 individuals, was initially listed as endangered under the ESA in 2005.  These killer whales are "resident" type, fish-eating whales that spend a specific period of time each year in the San Juan Islands and Puget Sound. 

On August 2, 2012, the Service received a petition from the Pacific Legal Foundation on behalf of the Center for Environmental Science Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to delist the endangered Southern Resident killer whale.  The petition asserts that there is no scientific basis for the designation of the Southern Resident killer whale as a distinct population segment, and that the population is part of a larger segment and not in danger of extinction.

Pursuant to ESA section 4(b)(3)(A), the Secretary of Commerce made a 90-day finding that substantial scientific or commercial information in the petition indicates that the petitioned action may be warranted.  The Service has initiated a 12-month review of the status of the Southern Resident killer whale to fully determine whether the petitioned action to delist the killer whale is warranted.  As part of the review process, the Service solicits scientific and commercial information related to the species.

The 90-day determination that there is substantial scientific or commercial information in the petition does not prejudice the outcome of the more comprehensive 12-month review.  Although, the species will remain listed unless the 12-month review process requires a reversal, the future status of the Southern Resident killer whale is uncertain.

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On November 5, 2012, the Environmental Defense Fund (EDF) sent a letter to the U.S. Fish and Wildlife Service (Service) encouraging the Service to consider an innovative approach to support conservation of the lesser prairie chicken (Tympanuchus pallidicinctus): through the use of habitat credit exchanges between companies and landowners.  The letter comes at a time when the Service is considering whether to propose to list the lesser prairie chicken under the Endangered Species Act (ESA).  Currently the Service has determined that listing of the species "is warranted, but precluded."   

The letter to the Service explains the "recent success" of using the habitat credit exchange for conservation of the dunes sagebrush lizard (Sceloporus arenicolusin) in lieu of listing the species as threatened or endangered.  The approach used in the Texas Conservation Plan for the dunes sagebrush lizard "includes the full mitigation hierarchy of avoidance, minimization and compensatory mitigation, and designates habitat credit exchanges as the means for compensatory mitigation."  The habitat credit exchange provides landowners the opportunity to generate income by developing and selling credits that represent conservation action on their land to companies that will receive in exchange "both regulatory assurances and operational certainty."  

The Senate Committee on Environment and Public Works also sent a letter to the Service on July 16, 2012 applauding the Service's determination to not list the dunes sagebrush lizard because of the voluntary agreements entered into to protect the species, and encouraging the Service to consider these types of agreements when making its determination on the lesser prairie chicken. 

The EDF proposal is the most recent of several innovative conservation initiatives based on market mechanisms proposed by the EDF to conserve endangered and threatened species. Prior EDF initiatives included the use of safe harbor agreements to encourage landowners to protect and enhance the habitat of various species starting with agreements to protect the mature longleaf pine (Pinus palustris) forest habitat of the red-cockaded woodpecker (Picoides borealis) in the southeast and east United States. 

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