Court Holds Biological Assessment Reviewable, But Denies Temporary Injunctive Relief

On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").

In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its designated critical habitat.  The biological assessment asserted that the Project would not effect the bull trout because the fish was not present in the surrounding watershed.  In 2012, the U.S. Fish and Wildlife Service ("Wildlife Service") issued a letter of concurrence.  Plaintiffs subsequently filed suit alleging that the Forest Service and Wildlife Service violated the Endangered Species Act and National Environmental Policy Act.  The plaintiffs alleged that the defendants violated the Endangered Species Act because they failed to use the best available science when analyzing the Project's effects on bull trout.  Specifically, the plaintiffs alleged that the defendants ignored reports from 1995 and 2005 concluding that the status of the bull trout in the surrounding watershed was "unknown."

In opposing the motion for preliminary injunction, the defendants first argued that because the plaintiffs were essentially challenging the biological assessment, and a biological assessment generally does not constitute a final agency action subject to review, the Endangered Species Act challenge failed as a matter of law.  The district court rejected this argument, stating that the biological assessment "is subject to review because the [Letter of Concurrence] expressly relied on the [biological assessment] when determining the bull trout did not exist in the . . . watershed and that no formal consultation was necessary."  

Next, setting the stage for its eventual decision, the district court stated that "[a]n agency is not obliged to conduct independent studies to improve upon the best available science or to resolve inconclusive aspects of scientific information," and that "[w]hen there are differing views as the impact of any agency action on a protected species, . . . an agency has the discretion to rely on the reasonable opinion of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" 

Addressing the substance of the plaintiffs' argument, the prior reports concluding that the status of the bull trout in the surrounding watershed was unknown, the court found that the 1995 report was based on the same snorkeling surveys that defendants' relied on, which "failed to find bull trout" in the surrounding watershed.  Accordingly, although defendants relied on snorkeling surveys that were more than 15 years old, the court found that defendants complied with the Endangered Species Act because the surveys represented the best available science, and defendants were not obligated to conduct new surveys or studies.  

The court also found that the defendants properly assessed bull trout habitat to conclude that bull trout did not and cannot exist in the watershed.  Thus, the court held that plaintiffs failed to establish a likelihood of success on the  merits.

Lawsuit Filed Challenging Controversial Settlement

On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species, it violated the Endangered Species Act and Administrative Procedure Act.  A short discussion of the history leading up to these settlements can be found here.  Plaintiffs allege in the complaint that "[t]he Service has abdicated a mandatory process based on best available science, public input and independent peer review in favor of a private settlement that lets two advocacy groups dictate the order, and pace of its statutorily required decision making process."  As one example, plaintiffs allege that the agreements prohibit the Service from making a "warranted but precluded finding or to continue to assess information and conservation efforts that would lead to a warranted but precluded finding."  While both settlement agreements do set forth procedures and deadlines for the Service's review, the agreements also state that "[t]he Agreement shall not (and shall not be construed to) limit or modify the discretion accorded to Defendants by the ESA, the Administrative Procedure Act ('APA'), or general principles of administrative law with respect to the procedures to be followed in making any determination required herein or as to the substance of any such determination.  No provision of this Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendants take any action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural." 

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%.

Three More Pesticides Found Likely to Jeopardize West Coast Salmon and Steelhead

In a recently issued draft biological opinion (PDF) , the National Marine Fisheries Service (Service) has concluded that EPA's registration of products containing the herbicides oryzalin, pendimethalin, and tricluralin is likely to jeopardize the survival of approximately half of the Pacific salmonid populations listed under the Endangered Species Act (ESA).

The draft biological opinion is the latest milestone in a series of controversial ESA section 7 consultations between the Environmental Protection Agency (EPA) and the Service regarding EPA's registration of 37 pesticides for agricultural and residential use that EPA has determined "may affect" listed salmonid species.  The draft opinion also reinforces the conclusion that Pacific salmon and steelhead are suffering the effects of a host of stressors, including pesticide exposure, reached by the National Research Council Committee in its recent report titled Sustainable Water and Environmental Management in the California Bay-Delta.

As explained in a previous blog entry, the consultations are not only the product of litigation accusing the EPA of failing to comply with the ESA with respect to pesticide registrations, they are generating new litigation, and they are drawing criticism from members of Congress.

Lawmakers in agricultural regions are concerned that the Service is imposing overly protective buffers around water bodies where the pesticides could not be applied, which, in their view may dramatically reduce crop yield with no discernible benefit to listed species.

The draft biological opinion for oryzalin, pendimethalin, and tricluralin is likely to be controversial.  As part of the reasonable and prudent alternative the Service has proposed to avoid jeopardy, the aerial application of any pesticide containing any of the three active ingredients within 300 feet of any surface water that connects with salmonid-bearing waters will be prohibited.  In contrast, this is less than a third the size of the buffer required in the 2008 Biological Opinion for the Registration of Pesticides Containing Chlorpyrifos, Diazinon, and Malathion (PDF), which required 1,000-foot wide buffers for aerial applications and 20-foot buffers of non-crop plantings along surface waters that connect to salmonid-bearing waters.

EPA is soliciting comments regarding the Service's proposed measures included in the reasonable and prudent alternative on its Endangered Species Effects Determinations and Consultations and Biological Opinions web page until April 30, 2012 .  EPA will forward comments to the Service for its consideration.

Under the current schedule, the biological opinions for all 37 active ingredients are to be completed on or before June 30, 2013.