Court Sends EPA Back to the Drawing Board on Temperature Limits in Oregon Waters

On April 11, 2017, the United States District Court for the District of Oregon ruled on parties’ objections to a federal magistrate judge’s findings and recommendations in a case challenging the U.S. Environmental Protection Agency’s (EPA) approval of temperature increases for over a dozen water bodies in Oregon under the Clean Water Act (CWA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA). The court ruled against EPA and overturned the magistrate judge’s findings and recommendations with respect to environmental plaintiff’s challenges to EPA’s approval of temperature total maximum daily loads (TMDLs) because it failed to consult under ESA section 7.

In 2003, the State of Oregon revised its existing water quality standards to establish new designated uses with regard to trout and salmon species, many of which were ESA-listed as threatened or endangered, and to incorporate natural conditions criteria for temperature. The natural conditions criteria allowed Oregon to increase temperature limits comparable to those that existed naturally before human interference over the previously established biologically based criteria.

Following issuance of biological opinions from the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) concurring that the revised water quality standards “may affect but are not likely to adversely affect” listed species, the EPA approved the revised water quality standards in 2004 and went on to approve TMDLs from 2004 through 2010. In 2012, the magistrate judge held the section 7 consultations on the revised water quality standards were illegal and vacated the associated biological opinions.

The district court overturned the magistrate judge and held that EPA could not rely on the section 7 consultation conducted for the 2003 revised water quality standards to satisfy the consultation requirements for the TMDLs, even though the TMDLs were approved before the court invalidated the biological opinions in 2012. Further, EPA’s determination that two of the TMDLs would have “no effect” on listed species could not be extended to the rest of the approved TMDLs for which EPA made no effect determination.  “EPA was required to make separate findings [for] each of the TMDLs”, e.g., “no effect,” “may affect, but not likely to adversely affect”, or “may adversely affect” and seek section 7 consultation with the Services for any but a “no effect” determination.

The court agreed with the magistrate judge that EPA had violated the CWA and the APA by approving temperature TMDLs based on the natural conditions criteria, which EPA failed to demonstrate were protective of the designated uses associated with trout and salmon.

D.C. Circuit Removes Hurdle to Northern Spotted Owl Critical Habitat Designation Challenge

On April 11, 2017, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held in Carpenters Industrial Council v. Zinke, 2017 U.S.App.LEXIS 6175, that a lumber company trade association had standing to challenge a U.S. Fish and Wildlife Service (“USFWS”) regulation designating critical habitat for the northern spotted owl (Strix occidentalis caurinan).  Reversing the district court’s decision, the D.C. Circuit found that plaintiff demonstrated a substantial probability that the regulation would decrease the supply of timber from forest lands where the association’s members obtain timber, thereby causing the members to suffer economic harm.  The opening paragraphs of the decision suggest that the D.C. Circuit was struck by the magnitude of the region affected by USFWS’s regulation.  “To put the agency’s action in perspective,” the D.C. Circuit stated, “the designated critical habitat is roughly twice the size of the State of New Jersey.  For Easterners, imagine driving all the way up and then all the way back down the New Jersey Turnpike, and you will get a rough sense of the scope of the critical habitat designation here.”

The D.C. Circuit applied what the Court itself characterized as a “common sense” approach to whether plaintiff had demonstrated that the federal government caused the alleged economic harm.  The Court applied a three-part test, asking whether there is a substantial probability that (1) the challenged action will cause a decrease in supply of raw material from a particular source; (2) the plaintiff manufacturer obtains raw material from that source; and (3) will suffer economic harm from a decrease in the supply of raw material from that source.  The D.C. Circuit found that the association made the required showing through a declaration documenting that there would be a reduction in lumber supply from a primary source of lumber, and that the association’s members would be unable to meet customer demand and maintain current production levels.

The Obama Administration-era northern spotted owl critical habitat regulation designated 9.5 million acres of forest lands in California, Oregon, and Washington.  The D.C. Circuit’s decision means that the parties and the lower court can proceed to the merits of the challenge.

Manatee Reclassified from Endangered to Threatened

On April 5, 2017, the U.S. Fish and Wildlife Service (Service) issued a final rule in the Federal Register reclassifying the West Indian manatee (Trichechus manatus) from endangered to threatened under the Endangered Species Act.  Despite the reclassification, the Federal Register explained that while some significant threats have been reduced or eliminated, there are still a number of threats that remain, such as habitat loss and poaching, and that implementation of recovery actions are needed for the manatee to fully recover.

The reclassification was the result of a 5-year status review by the Service that included a recommendation to reclassify the manatee, and a subsequent petition by the Pacific Legal Foundation requesting the reclassification.

Tenth Circuit Court of Appeals Reinstates Special Rule Regulating Take of Utah Prairie Dog

On March 29, 2017, the U.S. Court of Appeals for the Tenth Circuit held (PDF) that Congress has authority under the Commerce Clause to regulate the take of the Utah prairie dog (Cynomys parvidens).  Because Congress has this authority, it could authorize the U.S. Fish and Wildlife Service (Service) to do the same.

The Utah prairie dog lives only in Utah.  Approximately 70 percent of the species’ population is on nonfederal land.  It was originally listed as an endangered species under the Endangered Species Act (ESA) in 1973, but was reclassified as threatened in 1984.  At the time it was reclassified, the Service issued a special rule to regulate its take (“Special Rule 4(d)”).  See 50 C.F.R. § 17.40(g).  Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting: (1) permissible locations of such take to agricultural lands, properties within 0.5 miles of conservation lands, and “areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites[;]” (2) the permissible amount of such take; and (3) the permissible methods of such take.  People for the Ethical Treatment of Property Owners (“PETPO”) filed an action alleging that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate take of the Utah prairie dog (an intrastate species) on nonfederal land.

As an initial matter, the Tenth Circuit affirmed the district court’s holding that PETPO had standing to challenge Special Rule 4(d) because its alleged injuries were redressable.  PETPO’s challenge implicated the ESA’s grant of authority to the Secretaries of the Interior and of Commerce to issue regulations extending take prohibitions to threatened species.  If Congress lacked such authority under the Commerce Clause or the Necessary and Proper Clause, then the ESA could not authorize any regulation of prairie dog take.

On the merits of PETPO’s challenge, the Tenth Circuit concluded that the district court erred in holding that Special Rule 4(d) is not authorized by the Commerce Clause.  The district court held that the Commerce Clause did not authorize the regulation because it did not have a substantial effect on interstate commerce.  The Tenth Circuit disagreed.  It noted that the Commerce Clause authorizes regulation of noncommercial, purely interstate activity where it is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce.  “Therefore, to uphold the challenged regulation . . . [the court] need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.”

The Tenth Circuit held that Special Rule 4(d) was within the broader regulatory scheme of the ESA’s protections, including Congress’ broad authorization to use regulations to extend the take protections to threatened species.  Because the court concluded that the ESA has a substantial relationship with interstate commerce, and because Congress had a rational basis to believe that regulating take of purely intrastate species like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme, the Tenth Circuit held that the “regulation on nonfederal land of take of a purely intrastate species, like the Utah prairie dog, under the ESA is a constitutional exercise of authority under the Commerce Clause.”  Because Congress had the authority to implement the challenged regulation, it could delegate that authority to the Secretary of Interior to promulgate regulations to achieve that end.

Rusty Patched Bumble Bee Joins List of Endangered Species Despite Delay

On January 11, 2017, the U.S. Fish and Wildlife Service (Service) published a final rule listing the rusty patched bumble bee (Bombus affinis) as endangered under the Endangered Species Act (ESA).  The rusty patched bumble bee’s historic range encompassed areas of 28 states and the District of Columbia (Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin).  Since 2000, the species has been reported in only 12 states (Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Tennessee, Ohio, Pennsylvania, Virginia, and Wisconsin) and is now believed to occur in only eight percent of its historic range.  Service-identified stressors to the rusty patched bumble bee include pathogens, pesticides and herbicides (including neonicotinoids), habitat loss and degradation, small population dynamics, and climate change.

The effective date of the final rule was pushed back from February 10, 2017 to March 21, 2017 as a result of the January 20, 2017 White House Memorandum that delayed the effective dates of final rules that had not yet taken effect by 60 days from the date of the memorandum “in order to ensure that the President’s appointees or designees have the opportunity to review any new or pending regulations.”

As a result of the administration’s subsequent silence on this rule, the rule went into effect on March 21, 2017, adding the rusty patched bumble bee to the list of endangered species.  This species is the first ESA-listed pollinator in the continental U.S., and its listing under the ESA is anticipated to impact a number of industries.

Texas Federal Court Grants Preliminary Injunction Based On Sea Turtle Concerns

On March 13, 2017, the U.S. District Court for the Southern District of Texas granted a preliminary injunction relying primarily on Endangered Species Act (ESA) claims, halting operation of a mooring project on the Lydia Ann Channel near Corpus Christi, Texas. Friends of Lydia Ann Channel U.S. Army Corps of Engineers v. Lydia Ann Channel Moorings, LLC, No. 2:15-CV-0514, (S.D. Tex. Mar. 13, 2017).  The Friends of Lydia Ann Channel (Plaintiff) filed the lawsuit against the U.S. Army Corps of Engineers (USACE) seeking injunctive and declaratory relief for violations of the ESA and the National Environmental Policy Act (NEPA).   The court allowed Lydia Ann Channel Moorings, LLC (LACM), the mooring project owners, to intervene.

Pursuant to its authority under the Clean Water Act and associated regulations, USACE issued a Letter of Permission (LOP) authorizing the construction of the mooring project.  LOPs are an abbreviated processing procedure for activities that are “minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.”  33 C.F.R. § 325.2(e)(1)(i).  The LOP acknowledged the presence of several endangered or threatened species within the Lydia Ann Channel (including, whooping cranes, piping plovers, West Indian manatees, several species of sea turtles, among others), but concluded that the project would have minimal impact on these species and their critical habitat.  The administrative record did not contain any documentation that USACE received or reviewed any studies on the potential impacts of the mooring project to the endangered or threatened species.

USACE suspended and eventually revoked LACM’s LOP after discovering that LACM failed to comply with the terms of the LOP and that LACM’s stated purpose and need differed from what had been provided to USACE.  USACE then conducted an analysis to evaluate potential removal and restoration plans for the mooring project.   Operation of the mooring project continued while USACE analyzed its potential removal.

In determining whether a preliminary injunction was warranted, the court reviewed whether the Plaintiff had met the Fifth Circuit’s four-part test for preliminary injunction: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law, (3) the threatened injury outweighs the threatened harm to the defendant; and (4) an injunction will not disserve the public interest.  Focusing on only the ESA claims, the court found that the Plaintiff had met its burden and that there was a high probability of direct take of endangered Green Sea Turtles (Chelonia mydas) and Kemp’s Ridley Sea Turtles (Lepidochelys kempii) as a result of the continued operation of the mooring project.  The court’s conclusion with respect to the turtles relied on expert testimony stating that sea turtles are attracted to the area due to algae growing on the mooring structures, and that when temperatures in the Lydia Ann Channel dropped below 40 degrees, the turtles would be “cold stunned” and likely unable to react in time to avoid barge traffic using the mooring project.  Accordingly, the court enjoined any further operation of the mooring project and stayed the litigation until USACE completes its review of removal and restoration plans.

D.C. Circuit Reinstates Gray Wolf Delisting in Wyoming

On March 3, 2017, the U.S. Court of Appeals for the District of Columbia Circuit upheld a final rule delisting the gray wolf in Wyoming under the Endangered Species Act (ESA). Defenders of Wildlife v. Zinke, No. 14-5300 (D.C. Cir. Mar. 3, 2017).  This decision is the most recent in a series of court rulings and U.S. Fish and Wildlife Service (Service) actions that followed the Service’s initial 2011 proposal to delist the gray wolf in Wyoming based on the recovery of the Northern Rocky Mountain gray wolf population and the State of Wyoming’s conservation management plan for the wolf.

The D.C. Circuit reversed the district court’s vacatur of the rule delisting the gray wolf in Wyoming, instead concluding that the Service adequately and reasonably evaluated the state regulatory mechanisms in place to conserve the species. Central to this case was the question of whether existing regulatory mechanisms, in order to be “adequate,” must be binding.  The D.C. Circuit concluded, consistent with a number of judicial decisions in recent years, that “existing regulatory mechanisms” do not need to be binding to support a conclusion that a species does not warrant listing under the ESA.  Thus, the issue before the Court was whether the rulemaking record demonstrated that the Service exercised its judgment in a reasonable way in concluding that Wyoming’s management plan will adequately protect Wyoming’s gray wolf population after delisting.

The Court deferred to the Service’s expertise in determining that the state management plan is a reliable indicator of how Wyoming plans to implement its statutes and regulations, including that the State would not manage the species down to its minimum population level (at least 10 breeding pairs and at least 100 individuals) and would continue to maintain a buffer above that minimum. The Court held that the Service reasonably concluded that Wyoming’s efforts, as set forth in its management plan, were sufficiently certain to be implemented based on the strength of the State’s incentives to manage wolf populations so as to avoid relisting.

Senate Confirms Secretary of the Interior Ryan Zinke

On March 1, 2017, the Senate confirmed Rep. Ryan Zinke (R-Mont.) as Secretary of the Interior in a 68-31 bipartisan vote.  He was sworn into the Cabinet later that day by Vice President Mike Pence.  Zinke was able to attract 16 Democratic votes, with Sen. Ron Wyden (D-Or.) stating that he believes Zinke “will focus on doing his job, which includes protecting our special places and managing the forests already within the Interior Department’s control, instead of engaging in senseless reorganization of bureaucracies.”  Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) stated that she was “hopeful” that Zinke’s confirmation “will mark the start of a new era for the Department of the Interior that is defined by greater cooperation with Congress, the states, and the local residents affected by its decisions.”

Zinke, a former Navy SEAL, has already laid out his three main priorities as Secretary:  (1) address the National Park Service’s $12.5 billion deferred maintenance backlog; (2) increase employee morale and ensure that employees have the proper tools, resources, and flexibility to do their jobs; and (3) ensure that tribal sovereignty “mean[s] something.”  Zinke has also indicated that he is opposed to selling off federal lands, stating:  “I have absolutely and unequivocally opposed any attempts to transfer, sell, or privatize our public lands, and serving as their top steward is not a job I take lightly …. I approach this job in the same way that Boy Scouts taught me so long ago: leave the campsite in better condition than I found it.”

It also appears that Zinke is committed to upholding Federal ethics rules, writing in an email to Interior employees that “our understanding and observance of Federal ethics rules are essential to maintaining [the public’s] trust and carrying out our mission.”

At the invitation of the National Park Service’s Park Police, Zinke arrived to his first day of work riding an Irish sport horse named Tonto.  Zinke changed into a suit and tie before attending his first meeting. 

California Supreme Court Orders Court of Appeal to Consider Merits of CESA Decision on Coho Salmon

On February 27, 2017, the California Supreme Court reversed a Court of Appeal decision dismissing a petition for writ of mandate regarding the California Fish and Game Commission’s (Commission) rejection of a petition to delist the population of coho salmon (Oncorhynchus kisutch) south of San Francisco under the California Endangered Species Act (CESA).  Central Coast Forest Assoc. v. Fish and Game Comm’n, Case No. S208181, 2017 Cal. LEXIS 1540 (Cal. Feb. 27, 2017).  The California Supreme Court held that the Court of Appeal erred by failing to consider the merits of the Commission’s action, and by ruling on an improper procedural ground.

Under CESA, the Commission may examine the listing status of a species either on the petition of an interested individual, by the Commission’s own motion, and on a regular basis to assess whether listing is still warranted.  The Commission first listed coho populations below San Francisco as threatened in 1995, and then listed coho north of Punta Gorda as threatened, and coho between the San Francisco Bay and Punta Gorda as endangered in 2002.  Plaintiffs filed a petition in 2004 asking the Commission to redefine the southern boundary of the Central California coho population, effectively de-listing coho south of San Francisco, on the basis that the Commission’s decision to list the population south of San Francisco as endangered failed to meet the legal standard for listing.  The Commission adopted final regulations listing the southern population of coho as endangered in 2004.  In 2005, the Commission voted to reject plaintiffs’ petition.  On reconsideration, the Commission again decided to reject the petition in 2007.  Plaintiffs sought Superior Court review of the Commission’s 2007 decision, and the Superior Court directed the Commission to set aside its decision, and to undertake further review of plaintiffs’ delisting petition.  The Commission timely appealed.

On appeal, the Court of Appeal for the Third Appellate District reversed the Superior Court’s decision without reaching the merits of the case, concluding that the petition was a procedurally improper means of challenging the Commission’s 1995 and 2004 listing decisions.  On appeal, the California Supreme Court held that the Court of Appeal erred.  Specifically, the Supreme Court noted that CESA allows a delisting petition to challenge, based on new evidence, an earlier listing decision.  Because the Court of Appeal erred on procedural grounds, the Supreme Court remanded the case to the Court of Appeal to consider three specific questions: (1) whether the term “native species” refers to a listed species that is native to the geographic area in which it is listed or to a species that is native to California; (2) whether the term “range” refers to a species’ historic or present-day range; and (3) under what circumstances does CESA permit the Commission to delist only a portion of a listed species.