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

The United States District Court for the District of Arizona entered summary judgment (pdf) for the United States Forest Service in a case filed by Defenders of Wildlife and other plaintiffs alleging the Forest Service failed to fulfill its duty to conserve under section 7(a)(1) of the Endangered Species Act (ESA).  The case focused on efforts to conserve the Mexican gray wolf (Canis lupus baileyi) by reintroducing an experimental population of the species into the Blue Range Wolf Recovery Area, which includes portions of east-central Arizona and west-central New Mexico.  Plaintiffs complained that too often wolves reintroduced into the Recovery Area were removed by the Forest Service for preying on livestock, arguing that the Forest Service's livestock permitting program is interfering with Mexican wolf recovery efforts.

Plaintiffs pursued two specific claims against the Forest Service under section 7(a)(1).  First, they argued that the Forest Service violated section 7(a)(1) by failing to develop and implement its own Mexican wolf conservation program.  In response, the Forest Service argued that it fulfilled its obligation under section 7(a)(1) by carrying out a conservation program, namely the Mexican wolf recovery plan (pdf), developed by the Fish and Wildlife Service.  The court interpreted section 7(a)(1) to impose a requirement on the Forest Service to "carry out a substantive conservation program for the Mexican gray wolf."  But the court went on to hold that Plaintiffs' position that the Forest Service must develop its own program and may not implement a program developed by the Fish and Wildlife Service "puts form over substance" and is not supported by the statute or relevant caselaw.

Second, Plaintiffs argued that the Forest Service has not contributed to the conservation of the Mexican wolf and, instead, demonstrated a preference for wolf removal to protect domestic livestock.  The court opined that, to the extent that the Forest Service took no action to conserve the species, such inaction would plainly violate the section 7(a)(1) duty to conserve.  But, in this case, the court held that the record demonstrates affirmative action to carry out the Fish and Wildlife Service wolf conservation program.

The court's holdings are consistent with the balance of the jurisprudence interpreting section 7(a)(1) of the ESA, which support the proposition that federal agencies "have substantial discretion in determining how best to fulfill their section 7(a)(1) obligations."  As a result, the decision reiterates the difficulty would-be plaintiffs will face if they pursue a claim under section 7(a)(1) of the ESA.

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The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass.  The Service had determined that the proposed project contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and vernal pool tadpole shrimp.  The Service concluded that the project would destroy 234.5 acres of this critical habitat, which was equal to 0.04% of the fairy shrimp's total critical habitat nationwide and 0.10% of the tadpole shrimp's total critical habitat nationwide. 

The court rejected each of the plaintiff's arguments challenging the Service's determination that the project would not adversely modify the critical habitat of the listed species.  First, plaintiff argued that the Service applied an improper definition of "adverse modification" and did not account for the "recovery needs" of the affected species, as required by the court's previous decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Services.  In Gifford Pinchot, the court held that the regulatory definition of "adverse modification" contradicted Congress's command and that the definition of adverse modification of critical habitat was properly a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival or recovery of a listed species.  The court rejected plaintiff's contention, citing the Service's statement in the biological opinion that it did not rely on the regulatory definition of "destruction of adverse modification" but relied upon the statute and the court's decision in Gifford Pinchot.  

Second, despite the fact that the proposed project would destroy 234.5 acres of critical habitat for the fairy shrimp and tadpole shrimp, the court explained that an area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' overall critical habitat.  The court noted that the project would only affect a very small percentage of the total critical habitat for the listed species. While the plaintiff argued that the Service's focus on the project's impact on the species' total critical habitat masked the project's localized impact, the court stated that where "there is no evidence in the record that 'some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the [Service].'"  

Finally, the court rejected plaintiff's argument that the Service failed to address the rate of loss of critical habitat, stating that the Endangered Species Act did not require the Service to calculate rate of loss.

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