USFWS and NMFS Issue Joint Policy Interpreting ESA Listing Criteria

Today, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered Species Act (ESA).  This phrase plays a key role in the listing and delisting of species, as it appears in the ESA's definition of "endangered species" and "threatened species."  Specifically, under the ESA, an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range[,]" and a "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all of a significant portion of its range."  16 U.S.C. 1532(6) & (20).  The accompanying announcement issued by USFWS states that under the new policy, which does not go into effect until July 31, 2014, a species could be listed "as threatened or endangered throughout its range if the best available science shows that the species is threatened or endangered in a vital portion of that range, the loss of which would put the species as a whole at risk of extinction."  The announcement also states that the "policy clarifies a species' 'range' as the geographical area within which that species is found at the time of the listing determination."  The website for the USFWS states that during the interim period between now and the policy's July 31 effective date, the USFWS "will consider the interpretations and principles in [the] final policy as nonbinding guidance in making individual listing determinations."

D.C. District Court Holds Pre-Violation Notice Ineffective

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated to issue a finding stating "whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted."  16 U.S.C. 1533(b)(3)(A).  The ESA requires the Service, to "the maximum extent practicable," to issue this finding "within 90 days after receiving the petition[.]"  Because of this generally applicable 90-day deadline, this finding is often referred to as the 90-day finding.  Further, if the Service finds that a listing "may be warranted," the ESA requires that the Service issue a second finding within 12 months concluding that: (1) the petitioned action is not warranted; (2) the petitioned action is warranted; or (3) the petitioned action is warranted but precluded by higher priority species.  16 U.S.C. 1533(b)(3)(B).  Because the Service is given a strict 12 months to issue this second finding, this finding is often referred to as the 12-month finding. 

If the Service fails to comply with these statutory deadlines, a citizen suit may be filed in federal court.  16 U.S.C. 1540(g)(1)(C).  However, at least 60 days before filing such a lawsuit, a citizen plaintiff must serve the Secretary of the Department of Interior with a notice of intent to sue stating, among other things, the alleged violation(s).  16 U.S.C. 1540(g)(2)(C). 

In the case at issue, in August 2013, Plaintiff Friends of Animals (Plaintiff) sent the Service a pre-litigation notice stating that the Service had failed to timely issue a 90-day finding and 12-month finding for 39 separate species.  In October 2013, more than 60-days after service of the notice, Plaintiff filed suit alleging that the Service had failed to timely issue 12-month findings for all 39 species.  Thereafter, the Service moved to dismiss the complaint for lack of jurisdiction.

Strictly applying the ESA's pre-litigation notice requirement, the district court granted the motion to dismiss.  The court explained that under the ESA, notice of the "statutory violation" must be served 60 days prior to the commencement of a lawsuit.  In this case, however, the basis for the litigation, the failure to issue timely 12-month findings, did not exist when the notice was served.  The court explained that as of the date of the notice, the Service had not issued 90-day findings for any of the 39 species.  Thus, as the deadline for a 12-month finding is triggered only when a 90-day finding has been issued, the Service as a matter of law could not have failed to timely issue a 12-month finding as of the date of the notice.   

In an attempt to avoid dismissal, Plaintiff argued that its technical failure should not preclude the court from proceeding to the merits, because 90-day findings had since been issued for all 39 species, and it had been more than a year since the last 90-day finding was issued and the Service had not issued a single 12-month finding.  The court, however, rejected this argument, noting that the lower courts have consistently dismissed "ESA citizen suits for failure to strictly comply with the 60-day notice and delay provision," and that as such Plaintiff's "pre-violation notice" was simply inadequate.   

California Department of Fish and Wildlife Recommends Against Listing the Gray Wolf

Yesterday, the California Department of Fish and Wildlife (DFW) recommended that the California Fish and Game Commission not list the gray wolf as endangered under the California Endangered Species Act.  Following a yearlong review, DFW determined that the scientific evidence does not warrant listing the species at this time.  Instead, DFW recommended designating the gray wolf as a species of special concern – which affords the gray wolf some protection, including prohibiting the killing of the species – with a recommendation to consider placing the gray wolf on the endangered species list at a later date.

The recommendation is in response to a petition filed by environmental groups in 2012 to list the species.  As we reported here, the announcement also follows the U.S. Fish and Wildlife Service’s proposal to delist the gray wolf under the federal Endangered Species Act.   

Designated Critical Habitat for Southwestern Willow Flycatcher Almost Doubled

On January 2, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule increasing the critical habitat designated for the southwestern willow flycatcher (pdf) (Empidonax traillii extimus).  The flycatcher is a small migratory bird (approximately 6 inches long) that nests in dense riparian habitats along streams, lakesides, and other wetlands.  The Service listed the flycatcher as endangered in 1995, and in 1997 issued an initial critical habitat designation.  Shortly thereafter, however, the New Mexico Cattle Growers' Association filed a lawsuit challenging the 1997 designation.  As a result of this litigation, the Service issued a revised critical habitat designation for portions of Arizona, California, New Mexico, Nevada, and Utah.  The revised critical habitat included approximately 120,824 acres.  In 2005, the Center for Biological Diversity filed a lawsuit challenging the revised designation.  In order to settle this second round of litigation, the Service agreed to again revise the critical habitat designation for the flycatcher.  The final rule recently issued by the Service designates approximately 208,973 acres as critical habitat, which increases the total acreage by more than 70%.

Congressman Markey Issues Sharp Criticisms of Draft Interpretation of "Endangered" and "Threatened" Species

Northeast Cottontail Historic and Current Range Map from FWS Fact Sheet 2011As 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.