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

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking Democrat on the Committee on Natural Resources, expresses his "concerns that this policy has the potential to undermine several key provisions of the ESA by setting the bar for listing declining species at much too high a threshold."  So high, he argues, that "the bald eagle never would have been listed as an endangered species in the lower 48 States" because healthy populations of the bald eagle lived in Alaska "[e]ven during the worst era of DDT pesticide usage . . . ."

Markey also criticized the draft policy for ignoring "Congress' intent regarding the purpose of the ESA by refusing to consider the historic distribution of a species when making listing decisions about whether a species is in danger of extinction in a significant portion of its range."

Had such a policy been in place in the 1970s, Markey claims, "Americans would have had to travel to the most remote parts of Alaska to view species like the bald eagle, grizzly bear, or the gray wolf."  According to Markey, in passing the ESA, Congress did not sanction such a "living museum approach" to protect imperiled wildlife, but instead sought to protect ecosystems and restore species to their historic ranges.

The key provisions in the ESA provide that "'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . [,]" and "'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

But the ESA itself does not include a definition of "significant portion" of a plant or animal's range.

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit consideration of a species' status to the range used by a species at the time the listing decision is being made; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

According to Markey, under the first aspect of the draft policy, "the FWS would only protect an imperiled animal or plant species when the decline within a significant portion of that species' geographic range implicates the 'viability' of the species as a whole.  In other words, the only parts of a species' range which matter are those portions that, if lost, would lead to the global extinction of that species."

With respect to the second aspect of the draft policy, Markey claims it "could make it even more tempting for future political appointees within the Department of Interior, as well as some members of Congress, to meddle with or defund the listing process because any delay in listing would invariably shrink the geographic range that a declining species currently occupies."

Markey argues that to be consistent with the ESA, Congressional intent, and the legislative history of the ESA, the Fish and Wildlife Service must instead develop and use "a precautionary, science-based standard for deciding when it is appropriate to protect a species under the ESA[,] [a]nd . . . must also devise a balanced, science-based approach for considering the historic range of declining species when making listing decisions as opposed to its [proposed] categorical approach where the historic range of any . . . species is always ignored."

Currently the 60-day comment period on the draft policy ends on February 7, 2012. 

Several environmental organizations have requested that the comment period be extended, but with the deadline to comment just days away, the Services have not indicated that they will issue an extension.

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Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit the "range" to the range currently used by a species during any of its life stages; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

The draft policy interpretation has already drawn harsh criticism from the Center for Biological Diversity, which calls the proposal a "recipe for extinction."  By defining significance of a portion of a species' range in terms of a threat to the entire species, not just to the species found in the limited portion of its range, the Services may list fewer species and delist more than they would if "significant" was defined without reference to the entire species.  And by limiting "range" to the current range, a species that has suffered severe declines in historic range, but which is flourishing in its current range, may not qualify for listing and protection under the ESA.

In a Questions and Answers (PDF), the Services explain that while a species will not be listed solely on the basis of lost historical range, "the causes and consequences of loss of historical range on the current and future viability of the species must be considered and are an important component of determining whether a species is currently threatened or endangered."  But this has not mollified critics.

In contrast, landowners may find cause for concern because, under the draft policy, if a species is found to be endangered or threatened only within a significant portion of its range, then under the proposed interpretation the entire species would be listed, and the ESA's corresponding protections would apply throughout the species' entire range.  Thus, a species may be listed in areas where it is currently thriving, resulting in unnecessary and costly over regulation in some areas.

Although styled as a "draft policy," it is essentially a proposed rulemaking because it is the Services' "intent to publish a final policy . . . that will be accorded deference by the federal courts."  Clearly, the Services hope the new policy interpretation will eventually end claims brought in litigation over listing decisions based on past interpretations of "significant portion of its range" in the ESA's definitions of "endangered species" and "threatened species."  However, by defining "significant portion of its range" with reference to the range's importance to the species, not the geographic extent of the range, the draft policy interpretation would appear to be at odds with the plain meaning of the statutory text.

Indeed, in response to litigation over the meaning of the phrase, on March 16, 2007, the Solicitor of the Department of the Interior issued a formal opinion on the meaning of "significant portion of its range" (the so-called M-Opinion).  However, the courts have since rejected aspects of the interpretation in the M-Opinion as applied by the Fish and Wildlife Service, and the DOI withdrew it on May 4, 2011.

The comment period is open for 60 days.  Until the policy is formally adopted, the Services intend to use the draft policy as guidance in their respective listing decisions.

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As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (Service) violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) (Special Rule) without conducting an environmental assessment.  As we discussed here, the Special Rule sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.

On November 18, 2011, the court remanded (PDF) the Special Rule to the Service for the preparation of an environmental assessment (EA) and new rulemaking determination.  The court set a deadline of April 13, 2012 for the Service complete a draft EA and to submit a notice of availability of the draft EA and proposed special rule to the office of the Federal Register for publication.  The Service has until December 6, 2012 to complete a final EA and final rulemaking determination and to submit a notice to the Federal Register for publication regarding the availability of those documents. 

The Interim Final Special Rule (PDF) is reinstated and effective until the new special rule for the polar bear becomes effective. 

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On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

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On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.

In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs allege that FEMA's administration of the NFIP in participating communities in and upstream of the Sacramento-San Joaquin Delta (Delta) may affect three listed salmonid species and the delta smelt.  According to plaintiffs, FEMA's administration of the NFIP encourages development in and adjacent to the 100-year floodplain -- an area that includes designated critical habitat for listed salmonids, and that provides water quality benefits that may affect the salmon and smelt.  In addition, plaintiffs allege that FEMA has the discretion to modify its ongoing implementation of the NFIP in the Delta communities to benefit the listed species.  Thus, FEMA is required to enter consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services).

Among other things, FEMA argued that it does not retain discretion to modify its implementation of its floodplain mapping under the NFIP, and that issuing Letters of Map Revision based on placement of fill (LOMR-Fs) cannot have any impact on listed species.

The court rejected these arguments, holding that FEMA's own alteration of how it implements the NFIP in the Puget Sound region in Washington State for the benefit of listed salmonids demonstrates FEMA's ongoing discretionary involvement and control, and holding that other evidence in the record shows there is a question of material fact whether issuing LOMR-Fs may affect listed species or their critical habitat in the Delta by encouraging development that alters the regulatory, 100-year floodplain.  Thus, the court denied, in part, FEMA's motion for partial summary judgment.

The court, however, found the reasoning in National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151 (W.D. Wash. 2004) persuasive on the question whether FEMA has the discretion to withhold or condition issuance of flood insurance policies to applicants in participating communities that have already met certain minimum eligibility requirements.  Thus, the court granted FEMA's motion in this limited respect, holding that by statute, FEMA must issue flood insurance to persons in eligible participating communities.

Nevertheless, the court's rejection of FEMA's other legal arguments leaves open the possibility that FEMA will be required to consult with the Services with respect to its implementation of the NFIP in the Delta communities.

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On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a tire rut on 143 acres of land in 2001 provides substantial evidence that the land was "occupied" by the shrimp in 1997, the year the Service listed the species.  The court determined that that the single 2001 observation alone is not substantial evidence because the Service "has not reasonably explained how that one, isolated observation demonstrates that plaintiffs' property was 'occupied' by the San Diego fairy shrimp in 1997 (the relevant statutory date) . . . ."

The court emphasized that the Service had based its listing decision on one observation of the shrimp at one location on the 143-acre property, and that the Service failed to observe any San Diego fairy shrimp in any of the six follow-up surveys of the property in 2001.  During the litigation, the Service pointed out that an unidentified species of fairy shrimp was observed in 2001 in a pond next to the tire rut, and it also suggested that wherever adult fairy shrimp are observed, one can assume that they left behind buried eggs, that buried eggs can lie dormant for years, and that a property with dormant, buried eggs is, by definition, "occupied" by the fairy shrimp.  However, the court rejected the Service's additional evidence and reasoning, not because it was insubstantial or unpersuasive, but because the Service had not relied on it when it designated the land as critical habitat based on its determination that the shrimp "occupied" the land in 1997.

The court acknowledged that the substantial evidence standard of review under the Administrative Procedure Act is deferential, but "deference is not abdication."  Moreover, while the Service is not required to conduct its own research to augment the "best scientific data available" under the Endangered Species Act, under the Administrative Procedure Act, the best scientific data must be enough to support the Service's designation of critical habitat. 

In the Court of Appeal's judgment, the best scientific data that the Service relied on for its decision to include the 143-acre property in the fairy shrimp's critical habitat simply fell short.

The decision leaves in place the Service's designation of 2,939 acres of land in Orange and San Diego Counties as critical habitat for the fairy shrimp.  And on remand, the Service may re-designate all or part of the 143-acre property as critical habitat.  But unless and until that happens, the owners may develop the land without the fear that they may adversely modify designated critical habitat for the fairy shrimp, an act that would be subject to numerous restrictions and requirements under the Endangered Species Act.

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In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows.  According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA.  But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing."  In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal.  The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."

Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views."  Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science."  Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."

Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all.  Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.

Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.

While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened.  See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).  As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under section 4(d) of the ESA placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and EPA may assert its authority under the Clean Air Act to regulate GHGs.

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On June 8, 2011, Senator Inhofe (R-OK) filed an amendment (SA 429 (pdf)) to S. 782, the Economic Development Revitalization Act of 2011, that would amend section 4 of the Endangered Species Act to exempt the lesser prairie-chicken (Tympanuchus pallidicinctus) from protection under the Act.  According to Inhofe, if the U.S. Fish and Wildlife Service were to list the lesser prairie-chicken, it would greatly restrict the development of wind energy in Oklahoma.

Senator Inhofe's proposed amendment comes on the heels of Senator Cornyn's proposed amendment (SA 396 (pdf)) to S. 782 that would exempt the dunes sagebrush lizard (Sceloporus arenicolus) from the Endangered Species Act, as previously discussed here. 

In 1998, the Service issued a 12-Month Finding (pdf) in which it determined that listing the lesser prairie-chicken as threatened is "warranted but precluded" by other higher priority listing actions.  Most recently, in a Candidate Notice of Review (pdf) published on November 10, 2010, the Service announced that it has retained the second-highest Listing Priority Number, LPN 2, for the prairie-chicken because it continues to face significant and imminent threats throughout its range from agricultural activities and wind, oil, and gas development.

As explained in a prior entry, House Republicans Steve Pearce (R-NM) and Mike Conway (R-TX) and the Permian Basin Petroleum Association adamantly oppose listing the dunes sagebrush lizard and the lesser prairie-chicken for fear that doing so would halt oil and gas production and cost jobs in southeastern New Mexico and west Texas.  Opponents to listing these species add that both species are currently protected under voluntary Candidate Conservation Agreements (CCAs) and Candidate Conservation Agreements with Assurances (CCAAs).  However, both amendments would "exempt" these species from the Act, thus nullifying the primary incentive for private landowners and developers to enter into such CCAs or CCAAs with the Service.

Proponents of the listings such a Wild Earth Guardians argue that failure to list these species could result in their extinction, and that attempts to amend the Endangered Species Act to exempt species from its protection undermines the Act and increases the cost to protect and allow for the recovery of endangered species.

At this time, neither amendment has been taken up for a vote.

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Senator Cornyn (R-Texas) has filed an amendment to S. 782 (pdf), a bill entitled the Economic Development Revitalization Act of 2011, that would block the U.S. Fish and Wildlife Service from listing the dunes sagebrush lizard (Sceloporus arenicolus) as endangered.

The amendment would make good on half of the proposal of House Republicans from West Texas and southeastern New Mexico earlier this Spring (blogged about here) to use legislation to exempt the lizard and the lesser prarie chicken from the Endangered Species Act.

Opponents of the proposed rule (pdf) to list the lizard as endangered claim that there is insufficient scientific information to support the listing, and that the Service failed to accurately estimate the economic impact of the listing decision, claiming it would halt oil and gas production in the Permian Basin, which supplies nearly half the oil produced in Texas.

The Service believes that the science supports the listing, and that oil and gas wells, pads, access roads, and other associated infrastructure have destroyed and fragmented the imperiled shinnery oak and dune habitat that the lizard needs to survive, and poses a significant threat to the
species throughout its range.

The comment period on the proposal to list the dunes sagebrush lizard closed on May 9, 2011, and the earliest the Fish and Wildlife Service expects to issue a final rule is this coming December.

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A public rally to oppose the U.S. Fish and Wildlife Service's proposal to list the dunes sagebrush lizard (formerly known as the sand dune lizard) as endangered is being sponsored by the Permian Basin Petroleum Association in west Texas.  That proposal has drawn sharp criticism from Congressmen Steve Pearce (R-NM) and Mike Conway (R-TX). 

Both the PBPA and the Congressmen claim that the listing will cost jobs in the oil and gas industry by blocking exploration and extraction in counties on or near the Texas-New Mexico border for several years.  Advocates for the listing decision, such as the WildEarth Guardians, argue that the Fish and Wildlife Service determined that the listing is warranted years ago, and has already taken too long to promulgate a final listing rule.

Habitat for the dunes sagebrush lizard overlaps the habitat for another imperiled species, the lesser prairie chicken, which is currently being evaluated as a candidate for listing.

Currently, oil and gas companies, ranchers, and landowners can enter into Candidate Conservation Agreements or Candidate Conservation Agreements with Assurances that require them to undertake specified conservation measures to protect the lizard and prairie-chicken in exchange for certain assurances from the federal government that they will not be required to adopt additional conservation measures to continue their activities if either of the species is eventually listed.

The comment period on the proposal to list the dunes sagebrush lizard closes on May 9, 2011, and the earliest the Fish and Wildlife Service expects to issue a final rule is this coming December.

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