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

The U.S. Fish and Wildlife Service has prepared a 90-day finding (pdf) under the Endangered Species Act, in which it concludes that list of the ‘I’iwi (Vestiaria coccinea) as threatened or endangered  may be warranted, according to an article in Greenwire by April Reese.  The species, also known as the scarlet Hawaiian honeycreeper, is endemic to Hawaii, and its known distribution is limited to the islands of Hawaii, Maui, Molokai, Oahu, and Kauai.

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr. Tony Povilitis, Life Net.  With its 90-day finding, the Service initiated a status review for the species that will culminate in a 12-month finding, which will address whether listing is warranted.  The time frame for that review will be dictated by the date when the 90-day finding is published in the Federal Register.

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In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

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As Peter Fimrite reported in the San Francisco Chronicle, this week a lone gray wolf (Canis lupis) crossed the border from Oregon into California.  This marks the first time since 1924 that a wolf was seen in California.  The species was hunted to extinction within the state, due at least in part to concerns about the risks it posed to humans.  The species is listed (pdf) as endangered under the federal Endangered Species Act.  It is not listed under the California Endangered Species Act.

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Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA).  The species was listed in 1967 under the predecessor to the ESA.  The final rule delisting the gray wolf is available here (pdf).  The Service released the proposed rule (pdf) on May 5, 2011.  The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in Michigan, and 782 wolves in Wisconsin.

Adult gray wolves range from 40 to 175 pounds and prey upon medium and large mammals, including deer, moose, elk, caribou as well as domestic animals, including horses and cattle.  The decision to delist the speceis in the Great Lakes region drew praise from State officials in the region, farmers, and some conservation and environmental advocacy groups, but it has been criticized as premature by other environmental advocacy groups.

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The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter, which resulted in take of the species.

In their cross motion for summary judgment, Defendants argued that Plaintiffs lack standing. But the court analyzed each element of standing – injury-in-fact, causation, and redressability – and denied Defendants’ motion, stating that “the evidence presented by Plaintiff, taken as true, establishes a causal link between Defendants' conduct and Plaintiff's injury.” At the same time, the court denied Plaintiff’s motion for partial summary judgment on the issue of standing holding that “issues of material fact remain as to whether low flow conditions caused a take of Whooping Cranes.”

Defendants also argued that the Eleventh Amendment bars Plaintiffs’ claim, but the court held that Plaintiffs’ suit against State officials for prospective relief falls within an exception to the Eleventh Amendment established by the Supreme Court.

With respect to the issue of liability under section 9 of the ESA for take of whooping cranes, the court rejected Defendants’ arguments that State regulators cannot be held liable. The court noted that numerous courts have held that regulators can be held liable for take of listed species. The court also rejected Defendants’ argument that Plaintiffs failed to present evidence of take sufficient to overcome a motion for summary judgment, opining that “there are genuine issues of fact as to Defendants’ actions being the proximate cause of a ‘take’ of Whooping Cranes.”  The case went to trial beginning December 5, 2011.

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The United States District Court for the Northern District of California issued an order (pdf) denying a motion for preliminary relief filed by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California. At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA). Plaintiffs sought an injunction that would substantially restrict activities necessary to allow for continued operation of the golf course.

The Sharp Park golf course has been in continuous operation since 1930. For a substantial portion of that period, two listed species -- the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia) and threatened California red-legged frog (Rana draytonii) -- have been present at Sharp Park. Plaintiffs argued that pumping during the rainy season to control water levels in water bodies on site, mowing, and golf cart use are likely to cause take of listed species. They further argued that the standard for granting preliminary relief in an ESA case is whether take is likely to occur. The court rejected this argument, recognizing that preliminary relief is an extraordinary remedy and that plaintiffs must show a likelihood of irreparable harm.

The court determined that plaintiffs failed to meet their burden of establishing irreparable harm. In sum, the court held:

The expansion of the Frog population, coupled with defendants’ careful attention to moving any vulnerable egg masses and their continuing interactions with [the Fish and Wildlife Service] seeking authorization to do so, make this a situation that does not warrant the temporary, immediate, and drastic relief afforded by a preliminary injunction.

Slip Op. at 14.
 

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The U.S. Fish and Wildlife Service has announced that its Endangered Species Bulletin will be available exclusively in an online-only format going forward.  The Bulletin will be updated bi-monthly and will include a single in-depth feature articles, additional supporting articles, and other content.  The website for the Bulletin provides access to an archive that includes past editions back to 2000.

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The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS).  In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects.  But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.

Plaintiffs claimed that NMFS improperly employed and relied on two models.  NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids.  With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations.  But the court stated that “it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct.”  It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.

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In response to a petition (pdf) from the Pacific Legal Foundation (PLF) to delist the coastal California gnatcatcher (Polioptila californica californica) under the Endangered Species Act, the U.S. Fish and Wildlife Service made a 90-day finding (pdf) that the petition does not present substantial scientific or commercial information to indicate that delisting the species may be warranted.  PLF argued that the coastal California gnatcatcher is not a valid subspecies and should therefore be delisted.  In response, the Service acknowledged "that the taxonomic classification of the coastal California gnatcatcher has been the subject of considerable scientific debate."

The debate regarding the legitimacy of the coastal California gnatcatcher as a species has been ongoing since the time of listing of the species in 1993.  In part, the debate stems from disagreement about the role of morphology (physical appearance such as feather color or tail length) versus genetics in distinguishing among species and subspecies.

Despite the fact that it acknowledged scientific debate regarding the taxonomic classification of the gnatcatcher, the Service concluded that "[t]he genetic information provided in the petition and assertions of improper statistical analyses have been the focus of several Service and independent scientific reviews and the Service has concluded that the information is insufficient to support reclassification."  (Citations omitted from quotation.)

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On October 13, 2011, the Subcommittee on Investigations and Oversight to the Committee on Science, Space, and Technology of the U.S. House of Representatives held a hearing on the nexus of science and policy related to the Endangered Species Act (ESA).  According to a press release issued by the House, the purpose of the hearing was to "highlight how science is used in policy decisions that are made under [the ESA]."  The witnesses at the hearing were:

• Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
• The Honorable Craig Manson, General Counsel, Westlands Water District
• Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and Game
• Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources
• Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law
• Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists

The testimony of the witnesses is available here.  At the hearing, Mr, Frazier who heads the endangered species program at the Fish and Wildlife Service, told lawmakers the Department of the Interior would hire independent experts to evaluate a finding of bad faith made with respect to the conduct of two Department scientists by a federal district court judge in a case involving the Service's 2008 biological opinion regarding the effects of the Central Valley Project and California State Water Project on the threatened delta smelt (Hypomesus transpacificus).  (E&E News, Oct. 13, 2011, by Allison Winter.)  We reported on the court's finding here and here.

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