Sue Meyer

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Sue Meyer specializes in natural resources law and regulatory compliance. She has extensive experience working with habitat conservation planning, endangered species permitting, critical habitat and listing issues, wetlands issues and stormwater permitting. Ms. Meyer's practice includes review and defense of environmental documents for National Environmental Policy Act and California Environmental Quality Act compliance, as well as other land use regulations.


U.S. Fish & Wildlife Service Nixes Proposed Delisting of Central Valley Beetle Species

On September 17, 2014, the U.S. Fish and Wildlife Service (Service) withdrew (pdf) its proposal (pdf) to remove the valley elderberry longhorn beetle (Desmocerus californicus dimorphus) from the Federal List of Threatened and Endangered Species.  While this means the beetle will continue to be protected as a threatened species under the Endangered Species Act (ESA), the Service did reduce the area in which the species is presumed to occur.

The beetle was listed as threatened and critical habitat designated, in 1980 (pdf).  Until recently, the beetle’s range was believed to include much of the San Joaquin and Sacramento Valleys, from Shasta County in the northern Sacramento Valley to Kern County in the southern San Joaquin Valley, California; but occurrences were thought to be rare.  In its 2006 Five-Year Review (pdf), the Service recommended delisting the beetle, generally because the beetle was determined to be more abundant and widespread than documented at the time of listing.

In 2010, the Service received a petition to delist the beetle.  In 2012, the Service published a proposal to delist the beetle in which the Service recommended eliminating ESA protections for the beetle based on increased beetle populations and ongoing protections afforded to the species’ riparian habitat.

The Service’s 2014 withdrawal of the delisting proposal documents a reduction in the beetle’s distribution based on public comment and scientific peer review.  The Service describes its current estimates as, “the most accurate assessment of the presumed extant occurrences of the valley elderberry longhorn beetle.” 

According to the Service’s September 16 news release (pdf) announcing the withdrawal of the proposed delisting, the species’ range will no longer include Kern, Kings and Tulare counties.  And as such, “the regulatory protections of the ESA [afforded to the beetle] will now be applied to a smaller area.”  However, neither the notice nor the news release makes clear how the Service’s act of redefining the species’ range will affect the Section 9 prohibition against “take” of the beetle if it is found outside of the defined range.

The beetle’s reduced range, combined with threats from invasive plants, pesticides, and global climate change, are identified as the principal reasons for the beetle’s continued listing as a threatened species.
 

District Court Rules Grizzly Bears Trump Montana's Plan to Log Forest Lands to Fund Schools

On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended the associated Endangered Species Act Section 10(a)(1)(B) Permit(Permit) for incidental take of the threatened grizzly bear.  Friends of the Wild Swan v. Jewell, No. CV 13-61 (Aug. 21, 2014). The Montana Department of Natural Resources and Conservation (Department) prepared the HCP to support the U.S. Fish and Wildlife Service’s (Service) issuance of the Permit for take of two mammals and three fish species resulting from increased logging and road building. The Permit area is comprised solely of state trust lands in western Montana that the Department is mandated to manage for purposes of generating revenue for Montana schools.

Plaintiff environmental organizations asserted that the Service improperly issued the Permit for bull trout and grizzly bear because the HCP’s protections for these species do not meet the statutory requirements.  The court upheld the HCP and Permit for bull trout.  For grizzly bear, the court invalidated the Permit, finding the Service did not rationally support its finding that the impacts of the permitted activities on the bear would be minimized and mitigated to the maximum extent practicable.  

The Permit area covers over 500,000 acres within two of the four areas in which grizzly bear populations exist in the lower 48 states, the Northern Continental Divide and Cabinet-Yaak ecosystems. To accommodate the Department’s planned increase in logging activities, the HCP replaced protections prohibiting logging activities outside of the winter denning period over approximately 40,000 acres of designated grizzly bear “core areas” with an alternative program of quiet areas and spring management restrictions.  The Service recognized that the HCP’s proposed change would result in take of bears due to displacement of female bears from “key habitat” and would increase human-bear interactions, but reasoned that the take would be minimal based on the relatively small area (less than 2 percent) of grizzly bear core recovery zones that would be affected.  Overall, the Service concluded that the take of grizzly bears under the HCP would be fully mitigated and would result in a net benefit for the species.  

The issue before the court was whether the HCP’s protections of quiet areas and spring management restrictions satisfy the ESA’s mandate that, to issue a Permit, the Service must find that the HCP minimizes and mitigates the impacts of incidental take “to the maximum extent practicable.”  16 U.S.C. 1539(a)(2)(B)(ii).  Because neither the ESA nor the implementing regulations define “maximum extent practicable,” the court set forth the following principles to guide its analysis:  

(i) The statutory language of “maximum extent practicable” signifies that the HCP applicant may do something less than fully minimize and mitigate the impacts of the take where to do more would not be practicable.  

(ii)  The “maximum extent practicable” standard does not suggest that measures beyond that necessary to mitigate for the project’s effects of take of species are ever required.  

(iii)  Where the level of mitigation provided for in the HCP clearly compensates for the take that will occur, the Service is under no obligation to inquire whether additional mitigation is financially feasible.

A corollary to (iii), above, is that where there is a close call as to whether an HCP adequately mitigates for the project’s take, the Service is required to consider whether additional protective measures would be practicable.  The court found that the HCP record did not contain evidence sufficient to show that the HCP’s program of quiet areas and spring management restrictions offered equivalent protections for grizzly bears as compared to the original core area designations, much less an improvement in conditions – in other words, a close call.  
 
The court held that absent a rational connection between the facts (HCP’s grizzly bear conservation strategy may not improve the bears’ conditions and will increase take of bears) and the Service’s conclusion (HCP completely offsets the impacts of increased logging and road building to grizzly bear), the Service’s finding that the HCP mitigates take of grizzly bears to the maximum extent practicable was arbitrary and capricious. 
 
Upon remand, the Service may choose to take the court’s advice – that the HCP’s grizzly bear conservation strategy’s ability to offset the project’s impacts is a close call – and investigate whether additional mitigation measures to reduce project impacts to the bear would be practicable. 

 

District Court Upholds Federal Grant of Right-of-Way to Private Wind Energy Developer

In Sierra Club v. Kenna, 2013 U.S. Dist. LEXIS 4743, *1 (January 11, 2013), the United States District Court for the Eastern District of California upheld (pdf) the Bureau of Land Management’s (BLM) grant of right-of-way over federal land, providing a wind energy project - located entirely on private land - access to a state road and other essential infrastructure. The plaintiffs challenged BLM’s action on the grounds that BLM failed to consider impacts to bird species listed under the federal Endangered Species Act (ESA) caused by the operation of the wind turbines.

A wind energy developer applied to BLM for a right-of-way over federal land for the purpose of establishing a road to service a proposed wind energy farm and installing underground power transmission lines and fiber optic communications lines. The wind farm, a 12,781-acre facility consisting of up to 102 wind turbines, would be located entirely on private land in Kern County. The wind farm was expected to result in some level of avian fatalities due to the collision with moving turbine blades, among them, the federally listed California condor (Gymnogyps californicus) and southwestern willow flycatcher (Empidonax traillii extimus).

Section 7 of the ESA imposes on all agencies a duty to consult with either the U.S. Fish and Wildlife Service (FWS) (terrestrial and freshwater fish species) or the National Marine Fisheries Service (NMFS) (anadromous fish and marine species) before engaging in any discretionary action that may affect a listed species or critical habitat. Among the actions of an agency that may constitute an "action" within the meaning of the regulation are the granting of licenses, contracts, leases, easements, rights-of-way, and permits.

In this case, BLM did not seek section 7 consultation with FWS for the wind farm’s potential effects on the condor and flycatcher because BLM determined that its scope of review must be confined to the environmental impacts of the activities within the right-of-way. BLM based its decision on the conclusion that the right-of-way approval and the wind farm were not connected because the developer could and would obtain access to the wind farm over private land should BLM deny the right-of-way application.

The court agreed. According to the court, BLM need only show that evidence existed in the administrative record to show that its determination – that the right-of-way facilities were not the "but for" cause of the wind farm – was not arbitrary, capricious, or contrary to law. The court found that facts in the record supported BLM's conclusion that the wind farm could have been completed without the benefit of BLM's grant of right-of-way. Thus, the court held that BLM’s conclusion that the right-of-way approval and the wind farm were not interdependent for purposes of the ESA, was not arbitrary, capricious, or contrary to law. BLM was, therefore, not erroneous in determining that section 7 consultation was not required for the wind farm.

The court also held that BLM’s discretion to influence the developer’s private conduct with regard to the wind farm - by conditioning the grant of right-of-way on developer concessions to benefit the listed bird species - was too tenuous to federalize the wind farm. While BLM may have some level of influence in such a situation, the court noted, the actual discretion belongs to the private party to accept the bargain or not. To explain, the court provided a remarkable analogy between a regulatory agency’s authority to place conditions on a permit and gambling: “In this court's view, agency discretion must refer to something more than the ability to play a good hand of poker.”
 

Pacific Coast Population of the Western Snowy Plover Critical Habitat Designation--Is the Third Time a Charm?

On June 19, 2012, the U.S. Fish and Wildlife Service announced its final action designating 24,527 acres as critical habitat for the Pacific coast population of western snowy plover (Charadrius alexandrinus nivosus).  The designated critical habitat spans coastal areas in Washington, Oregon, and California to the Mexican border, typically characterized by sparsely vegetated, sandy beaches.  The Service identified several activities that may require special management within critical habitat areas, including, water diversions, resource extraction, and dune stabilization associated with human development. This final designation doubles the previously designated critical habitat.  The final rule is effective July 19, 2012.

The Service designated critical habitat in areas both occupied and unoccupied by the snowy plover.  Projects with a federal nexus (e.g., Clean Water Act section 404 permit, Bureau of Land Management right-of-way agreement), must comply with the consultation requirements of section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2).  Section 7(a)(2) applies when critical habitat is designated in an area even if the federally listed species does not occur on or near the project site. 

The Service’s 2012 final critical habitat rule for snowy plover is its third.  The species was listed in 1993  and critical habitat was first designated in 1999.  The 1999 critical habitat rule was challenged in court and vacated and remanded to the Service to correct deficiencies in the economic analysis accompanying the rule.  The Service issued a new critical habitat rule in 2005.  That rule, too, was challenged; the Service and the plaintiffs entered into a settlement agreement under which the Service would reconsider, re-propose, and finalize a new critical habitat rule—now the 2012 final rule. 

This sequence of events is not uncommon in the world of critical habitat regulatory activity.  Many critical habitat rules are now—or will soon become—third generation critical habitat designations.  The mid-2000’s generation of critical habitat designations were generally circumspect; the Service used its authority under section 4(b)(2) of the ESA, 16 U.S.C. § 1533(b)(2), broadly and excluded areas from critical habitat based on economic, social, national security, and other relevant factors.  Under a new administration, and in the wake of dozens of lawsuits challenging critical habitat rules, the pendulum has swung. As reported here, contemporary critical habitat designations are generally expanding and the regulated community appears ready to fight back.

Ninth Circuit Upholds Biological Opinions for Montana Mining Project--Grizzly Bears and Bull Trout Critical Habitat Adequately Addressed

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or jeopardize the continued existence of grizzly bear population in the lower 48 states of the United States. 

FWS determined that construction and operation of the mine would not adversely modify bull trout critical habitat based primarily on the relatively small footprint of project impacts to critical habitat-- less than three stream miles-- as compared to the much larger 135-stream mile critical habitat “core area.” The Court agreed that such “large-scale critical habitat analysis” is appropriate provided localized impacts are not masked or ignored. The BiOp included a complete evaluation of the physical and biological characteristics necessary for the bull trout’s survival and concluded that all essential elements would remain functional throughout the project’s lifetime.  For this and other reasons, the Court affirmed FWS’s no adverse modification conclusion. 

The Court also upheld the BiOp’s no jeopardy conclusion for grizzly bears based on the project’s comprehensive mitigation plan for the affected Cabinet-Yaak population, which was expected to promote grizzly recovery over the long-term.
 

House Republicans to Hold Hearing Investigating Impact of Habitat Protections for Southern California Fish Species on Water Supplies and Economy

In response to a letter from two local congressmen (PDF), Republicans from the Natural Resources Water and Power Subcommittee have scheduled an oversight hearing to examine the U.S. Fish & Wildlife Service’s recent designation of critical habitat for the Santa Ana sucker (Catostomus santaanae).  As reported on this blog, the Service published a final rule (Dec. 14, 2010) designating critical habitat for the Santa Ana sucker, a small fish species occurring in southern California.  The Final Rule designates nearly 10,000 acres in the Santa Ana and San Gabriel rivers and Big Tujunga creek, spanning San Bernardino, Riverside, Orange, and Los Angeles counties.

The hearing will be held October 18, 2011, 10:00 a.m. PST in the Highland City Hall in San Bernardino County.  Ren Lohoefener, Regional Director of the Service, is scheduled to appear as a witness.

As reported in Environment and Energy Daily (Oct. 17, 2011), Water and Power Subcommittee Chairman Tom McClintock (R-Calif.) stated, "Regulatory excesses are imposing increasingly oppressive costs on operation of local water systems. . . This hearing will examine whether the enormous wealth consumed by these policies has made any significant contribution to enhancing endangered populations -- particularly compared to far more effective and less expensive alternatives."  The field hearing’s title, "Questionable Fish Science and Environmental Lawsuits: Jobs and Water Supplies At Risk in The Inland Empire,"  reflects many Republican House members’ and critics’ objections to the sucker critical habitat.  No Democrats are expected to attend.

In their letter requesting a field hearing, Representatives Ken Calvert (R-Calif.) and Jerry Lewis (R.-Calif.) linked the effects of ESA regulation, implementation, and litigation to the economic downturn:  “California Water Agencies are receiving fractions of their total water allocations and California communities are experiencing record job losses due, in some instances, to water shortages . . .”

The conflict between the protections afforded listed species under the Endangered Species Act on one hand and water supply and economic impacts on the other is not novel.  As widely reported on this blog, the Service has been engaged in protracted litigation over limitations placed on the State Water Project and Central Valley Project to protect the threatened delta smelt.

The Service’s action designating critical habitat for the sucker settled litigation initiated by California Trout and other environmental groups.  On August 23, 2011, Bear Valley Mutual Water Company and several water districts and municipalities lodged a complaint in the United States District Court for the Central District of California challenging the Service's action designating sucker critical habitat within the Santa Ana River watershed in San Bernardino, Riverside, and Orange counties.

Fish and Wildlife Service Withdraws Proposal to List Mountain Plover

The U.S. Fish and Wildlife Service ("Service") announced that the mountain plover, a small native bird inhabiting open, flat lands with sparse vegetation, does not warrant protection under the Endangered Species Act (ESA). 

Mountain plovers breed in the western Great Plains and Rocky Mountain States from extreme southern Canada to northern Mexico.  Within the United States, most breeding occurs in Montana, Wyoming, and Colorado; fewer breeding birds occur in Kansas, Nebraska, New Mexico, Oklahoma, Texas, and Utah.  Mountain plovers winter mostly in California, southern Arizona, Texas, and Mexico.  California’s Sacramento, San Joaquin, and Imperial valleys support the greatest known number of wintering mountain plovers. 

The Service based its decision on several key factors, including the following:

  • Its current estimate of the mountain plover breeding population is over 20,000 birds, more than double the estimate cited in the Service’s 2002 proposed rule to list the species as threatened under the ESA; 
  • The species’ geographically widespread breeding and wintering ranges and its ability to use a variety of habitats contributes to its security;
  • Mountain plovers have adapted to many human activities, such as using crop fields for breeding and wintering; and 
  • Human land use changes, alone or in combination with climate change, are not likely to result in significant population-level impacts to the mountain plover in the foreseeable future.

The Service also discussed the potential impacts of loss or degradation of mountain plover habitat, which has generally been identified as the greatest potential threat to the species.  The mountain plover’s diverse habitats are subject to anthropogenic changes, including cattle grazing and mineral and energy development as well as the loss of agricultural lands to solar energy development in the San Joaquin and Imperial valleys.  However, the Service found these threats are generally localized and are not likely to result in significant population-level impacts to the species.

The Service’s determination satisfies its obligation under a 2009 settlement agreement entered into with Forest Guardians (now WildEarth Guardians) and the Biological Conservation Alliance for their claim challenging the Service’s 2003 withdrawal of a 2002 proposal to list mountain plover under the ESA.  The settlement agreement required the Service to reinstate the 2002 proposal, receive public comment on the proposal, and prepare a final rule by May 1, 2011.  This withdrawal constitutes the Service’s final action. 

Click here to read the full Withdrawal of the Proposed Rule to List the Mountain Plover as Threatened.

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U.S. Fish & Wildlife Service Redesignates Critical Habitat for Santa Ana Sucker

On December 14, 2010, the U.S. Fish & Wildlife Service published its final rule (PDF) redesignating critical habitat for the Santa Ana sucker, a small fish species occurring in watershed draining the San Gabriel and San Bernardino mountains of southern California.  The Final Rule designates a total of 9,931 acres across San Bernardino, Riverside, Los Angeles, and Orange counties and is comprised of 7,097 acres in the Santa Ana River, 1,000 acres in the San Gabriel River, and 1,233 acres in Big Tujunga Creek.  The Final Rule increased the sucker’s net critical habitat by approximately 1,026 acres over the Service’s 2005 rule (PDF).

The Santa Ana sucker was listed as threatened in the Santa Ana River, San Gabriel River, and Big Tujunga Creek in 2000.  In 2005, the Service designated critical habitat for the sucker in the San Gabriel River (5,765 acres) and Big Tujunga Creek (2,540) totaling 8,305 acres.  In the 2005 final rule, the Service did not designate critical habitat for those portions of the Santa Ana River covered by habitat management plans--the Western Riverside Multiple Species Habitat Conservation Plan and the Santa Ana Sucker Conservation Program--consistent with established policy.  Nor did the Service designate portions of the Santa Ana River not covered by habitat management plans, which are also unoccupied.  In its 2005 final rule the Service explained that although these areas provide necessary flood conditions and sediments and small cobblestones that is passes to the downstream area occupied by the sucker, those features alone are not sufficient to meet the statutory required statutory standard --“essential to the conservation of the species” -- particularly in light of Congressional direction to be “exceedingly circumspect” in designating critical habitat outside of areas currently occupied by the species. 

In its 2010 Final Rule the Service performs an about-face, which is evident in new critical habitat designation of 7,097 acres in the Santa Ana River.  The Service lifts the exclusion of those portions of the Santa Ana River subject to the Western Riverside Multiple Species Habitat Conservation Plan (approved in 2004) and the Santa Ana Sucker Conservation Program (2000) because they have not yet been sufficiently implemented to yield benefits to the sucker.  The Service continues its reversal by designating as critical habitat upstream unoccupied areas in the Santa Ana River based on necessary water flows and coarse sediments deemed essential for the conservation of the species. 

Acreage reductions in the San Gabriel River and Big Tujunga Creek units, as well as mapping changes within the Santa Ana River critical habitat unit, reflect refined mapping capabilities, changes to the criteria used to identify critical habitat, such as a slope limit of 7 degrees, and reevaluation of the 2005 rule, which, was compelled by court order from the U.S. District Court of the Central District of California as a result of a stipulated settlement agreement with California Trout and other environmental groups.

Quechan Indian Tribe Sues BLM Over Imperial Valley Solar Project

On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management Act (FLPMA), National Historic Preservation Act (NHPA), and National Environmental Policy Act (NEPA).  With respect to NEPA, the plaintiff alleged that defendants failed to determine whether historical or cultural resources occur on the project site and the National Environmental Policy Act because the Final Environmental Impact Statement (FEIS) does not adequately consider cultural impacts on the Tribe from destruction and loss of tribal archaeological sites and the proposed-federally listed flat-tailed horned lizard.

The Quechan Tribe’s Reservation lands run along the Colorado River near Yuma, Arizona; however, according to the complaint, the Tribe historically occupied lands spanning present-day Arizona and southern California, including the project site between Octotillo and El Centro. The flat-tailed horned lizard plays a significant role in the Quechan Tribal creation story.

The complaint also challenges BLM’s approval of an amendment to the California Desert Conservation Area (CDCA)—BLM’s resource management plan covering 25 million acres within southern California—allowing for solar energy and a right-of-way grant to lease land managed by the BLM for construction and operation of a solar electricity generation facility. The complaint alleges that the BLM’s approval of the CDCA amendment violates the Federal Lands Policy and Management Act because the CDCA designates the project site as “Class L” lands for lower intensity uses and BLM failed to evaluate or consider whether the project would constitute a “lower intensity use.”  The complaint also alleges the FEIS fails to adequately consider cumulative impacts from other planned solar projects.

Court Holds that Federal Agencies Acted Illegally by Implementing Biological Opinion and Reasonable and Prudent Alternatives without Complying with NEPA

The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and marine mammal species, was released on June 4, 2009.  In it, NMFS determined that long-term operations of the Central Valley Project and State Water Project are likely to jeopardize the continued existence of all five listed species.  For that reason, NMFS identified reasonable and prudent alternatives that are expected to avoid the likelihood of jeopardy to the species.  Numerous plaintiffs filed lawsuits challenging the biological opinion and reasonable and prudent alternatives, and those suits were consolidated on September 25, 2009. On November 2, 2009, plaintiffs moved for summary judgment regarding their NEPA claims.

Plaintiffs argued that the adoption and implementation of the biological opinion and reasonable and prudent alternatives are major federal actions that will significantly affect the human environment and that NMFS and BOR erred by not preparing an environmental assessment or environmental impact statement as required by NEPA.  The Court agreed holding that the reasonable and prudent alternatives significantly revise the procedures for operating the Central Valley Project and will materially reduce water exports and, therefore, trigger NEPA.