Court Vacates Polar Bear Special Rule, Upholds Ban on Importation of Sport-Hunted Trophies

Posted on October 18, 2011 by Robert Horton

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.

Excerpt from the NEPA opinion:

Plaintiffs argue that the Service purposely and unlawfully crafted its Special Rule in such a way as to avoid addressing this threat, in contravention of the ESA’s conservation mandate.

The Court understands plaintiffs’ frustration.  However, as this Court has previously observed, climate change poses unprecedented challenges of science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science.  See In re Polar Bear, 2011 U.S. Dist. LEXIS 70172, at *9-11.  Here, the Service concluded based on the evidence before it that Section 4(d) of the ESA is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and plaintiffs have offered no compelling evidence to the contrary.

Excerpts from the MMPA opinion:

[T]he Court finds that the Service properly concluded that the polar bear is a depleted species within the meaning of the MMPA as of the publication of the Listing Rule.  The Court further finds that the MMPA mandates the Service’s conclusion that sport-hunted polar bear trophies are no longer eligible for import as a result of the species’ depleted status.  Sport hunting is not among the narrow, enumerated exceptions to the MMPA’s ban on taking and importing depleted marine mammals.

[ . . . ]

[T]he Atcheson plaintiffs nonetheless applied for permits to import their sport-hunted polar bear trophies under section 104(c)(4)(A) of the MMPA, which authorizes a narrow exception to the general prohibition on importing depleted marine mammals for activities that will “enhance” a depleted species, either by increasing its numbers or by otherwise contributing to the recovery of the species.

[ . . . ]

[T]he Court finds that the Service reasonably concluded that the Atcheson plaintiffs failed to meet the standard for an enhancement exception to the MMPA’s ban on importing depleted species.
 
Tags: , , , ,

Court Upholds the Fish and Wildlife Service's Interpretation of "Endangered Species" and Decision to List the Polar Bear as Threatened

Posted on June 30, 2011 by Robert Horton

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.

Tags: , , , , , , ,

Fish and Wildlife Service Finds Delta Smelt Warrants Uplisting from Threatened to Endangered

Posted on April 6, 2010 by Audrey Huang

The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

 

 

Tags: , , ,

National Marine Fisheries Service Lists Pacific Smelt As Threatened

Posted on March 21, 2010 by Ben Rubin

The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be making a critical habitat determination and considering the need for protective regulations.  As for the immediate future, the listing determination will require federal agencies to consult with NMFS on any federal action that may result in jeopardy to the pacific smelt.    

Tags: , ,

Fish and Wildlife Service Designates 1.6 Million Acres of Critical Habitat for California Red-Legged Frog

Posted on March 17, 2010 by Robert Thornton

For the third time in nine years, the Fish and Wildlife Service has revised the designation of critical habitat for the California red-legged frog. The new designation includes 1.6 million acres in 20 counties in California. 75 Fed. Reg. 12,816 (Mar. 17, 2010) (PDF). The revised designation increases the amount of critical habitat by over one million acres from the 2006 critical habitat designation (PDF). The revised designation represents a decrease of approximately 2.4 million acres from the 2001 designation (PDF). The Service revised the prior designations in response to litigation brought by the building industry and by environmental groups. The red-legged frog is widely known as the protagonist in Mark Twain’s The Celebrated Jumping Frog of Calaveras County. The designated critical habitat includes land in the Sierra foothills, the Sacramento and San Joaquin Valleys, the Bay Area, the Central Coast and Southern California.

The revised designation reflects a continuation of policies adopted by the Clinton Administration and the Bush Administration to exclude from critical habitat certain areas within approved habitat conservation plans (“HCPs”). The critical habitat designation excludes areas covered by three HCPs: Bonny Doon, East Contra Costa and Western Riverside. Reflecting a nuanced changed in Service policy, the designation also excludes certain lands managed under other state or local conservation programs. The Service concluded that “judicious exclusion of specific areas of non-federally owned land from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone.”

The Service also excluded several national defense installations from the designation where the military installations had adopted an integrated national resource management plan under the Sikes Act. Congress amended the Endangered Species Act in 2003 to authorize exclusions of defense installations subject to Sikes Act integrated natural resource management plans. 16 U.S.C.§ 1533(a)(3)(B)(i).

The Service estimated the total economic cost of protecting the red-legged to be approximately $1.34 billion and estimated the incremental economic cost of the revised critical habitat designation to be approximately $500 million.
 

Tags: , ,

Groups Sue Over Greater Sage Grouse Candidate Determination

Posted on March 11, 2010 by Audrey Huang

Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse.  On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA").  This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species.  As discussed in a previous post, Western Watersheds filed a complaint challenging the 2005 determination, and in 2007, the federal district court reversed the Service's determination and remanded the matter to the Service. 

The supplemental complaint (PDF) filed by Western Watersheds alleges, in part, that the Service's justification for its warranted but precluded finding for the greater sage grouse is arbitrary and capricious because the Service has not made "expeditious progress" in listing species under the ESA.  According to the supplemental complaint, between 1974 and 2000, the Service listed approximately 45 species per year, but between January 2001 and March 2005, the Service listed only 30 species in total, an average of seven species per year.  The complaint also alleges that the Service only listed one species during fiscal year 2009. 

As previously discussed, while a candidate species is not protected under the ESA, the Bureau of Land Management ("BLM") has issued guidance (PDF) that may have impacts on wind and solar development as well as oil and gas leasing on BLM lands that impact the species.

Tags: , ,

Greater Sage Grouse Listing Warranted But Precluded

Posted on March 5, 2010 by Audrey Huang

co-authored by Robert Thornton

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and fragmentation of sagebrush habitats due to conversion for agriculture, urbanization, infrastructure, grazing, and nonrenewable and renewable energy development.  If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction.  The Service plans "to continue to work cooperatively with private landowners to conserve the candidates species.  This includes financial and technical assistance, and the ability to develop conservation agreements that provide regulatory assurances to landowners who take actions to benefit the species." 

The Bureau of Land Management ("BLM"), which manages the majority of greater sage grouse habitat, has issued guidance (PDF) to address actions in "priority" sage grouse habitat.  For example:

  • BLM will re-route proposed transmission projects to avoid priority habitat;
  • For new oil shale lease applications, BLM may impose lease stipulations and project conditions of approval that designate avoidance areas;
  • New right-of-way applications for wind and solar energy development may be denied or terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by analysis under the National Environmental Policy Act. 

BLM has also issued a FAQ. 

Tags: , ,

NRDC Sues to List Whitebark Pine Claiming Exacerbated Threat Due to Climate Change

Posted on March 5, 2010 by Audrey Huang

Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada.  The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine." 

The whitebark pine listing petition is one of several recent petitions seeking protection under the ESA due to the threat that climate change poses to the species.  The Service recently declined to list the American pika as endangered or threatened due to climate change.  But last month the National Marine Fisheries Service determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. 

Tags: , , ,

Fish and Wildlife Service Reinstates Proposed Listing of the Flat-Tailed Horned Lizard

Posted on March 2, 2010 by Robert Thornton

Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF), the Ninth Circuit's most recent decision respecting the listing determination.  In its decision, the Ninth Circuit reversed a lower court decision upholding the Service's determination to withdraw the proposed rule (for the second time) on the ground that habitat loss did not constitute a significant portion of the species' range and the loss did not result in a likelihood that the species could become endangered in the foreseeable future.  Noting that information concerning population dynamics of the species is limited and inconclusive, the Ninth Circuit faulted the Service for inferring that "the absence of evidence of population decline equates to evidence of persistence."  In a dissent, Judge Noonan questioned the role of the judiciary vis-a-vis the Service where, as here, everyone agrees that there is a high degree of uncertainty.

It's any body's guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary's  conclusion impacted by over-reliance on fragmenting evidence of the lizard's persistence; so the court decides to give the Secretary another crack at the problem.

The listing of the flat-tailed horned lizard will impose restrictions on public and private activities in the lizard's range in the United States, although the species is covered by the Coachella Valley Multiple Species Habitat Conservation Plan, which covers approximately 1.2 million acres of land in Riverside County, California.  Like the potential listing of the Sonoran desert tortoise, this listing could also impact areas identified for solar energy projects in California and Arizona.

The comment period on the proposed listing expires May 3, 2010.  Public hearings are scheduled for March 23, 2010 at the University of California, Riverside and March 24, 2010 at the Radisson Hotel in Yuma, Arizona.  The Service has not proposed the designation of critical habitat at this time.

 

Tags: ,

Lawsuit Seeking Listing of Sonoran Desert Tortoise Expands Endangered Species Act-Solar Development Conflict

Posted on March 1, 2010 by Robert Thornton

Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted.  According to the lawsuit, the Service received a petition to list the tortoise in October 2008.  Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority.  If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service.  Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development. 

Tags: , , ,

Successful Court Challenge Results in Second Denial for Coastal Cutthroat Trout

Posted on February 26, 2010 by Ben Rubin

In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the listing of the DPS of the coastal cutthroat trout was not warranted. 

The Service first published a notice of withdrawal (PDF) of proposed listing for the DPS of the coastal cutthroat trout in 2002.  However, after a group of environmental organizations challenged the Service's determination in federal court, the Ninth Circuit found that the Service failed to properly consider whether the estuary and other marine areas constitute a significant portion of the range of the DPS, and therefore ordered the Service to reconsider the withdrawal determination. 

In the notice published late last week, the Service again withdrew the proposed rule to list the DPS of the coastal cutthroat trout, stating:

the threats to coastal cutthroat trout in the marine and estuarine areas of its range within the DPS, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are not likely to endanger the species now or in the foreseeable future throughout this portion of its range. 

It is unclear whether this decision will once more be the subject of litigation.

Tags: , ,

Highly Anticipated Sage Grouse Listing Decision Likely Delayed One Week

Posted on February 23, 2010 by Audrey Huang

Greater Sage Grouse - USGS PhotoAs discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on the greater sage grouse by February 26, 2010.  Due to the death of the Service's Director, Sam Hamilton, the Service requested an extension (PDF) until March 5, 2010 to submit its new finding.  The finding to list the greater sage grouse could have implications for those in the oil and gas, wind energy and livestock industries, making their business more difficult across much of the West.

While half of the North American population of the greater sage grouse is believed to be in Wyoming, it also inhabits parts of California.  According to the California Department of Fish and Game, the sage grouse  "is a permanent resident in northeastern California, ranging from the Oregon border along the east side of the Cascade Range and Sierra Nevada to northern Inyo County.  Lassen and Mono counties have the most stable populations."

Tags: , ,

Four Lawsuits Filed Over Delay on Petitions to List 93 Species

Posted on February 18, 2010 by Audrey Huang

The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C.,  Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade.  The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.

The Endangered Species Act requires the Service to make a "12-month finding" on listing petitions within one year of receipt.  The 12-month finding may consist of one of three determinations: 

  1. listing is "warranted," and the Service must publish a proposed rule to list the species;
  2. listing is "not warranted" and no further action is taken; or
  3. listing is "warranted but precluded" by other listing actions of higher priority. 

However, the Service often takes more than a year to make a determination on a listing petition due to the number of petitions it receives, budget constraints, and litigation-imposed deadlines. A few of the species at issue in the lawsuits include the California golden trout, Cactus Ferruginous pygmy owl, Mount Charleston butterfly, Mojave fringe-toed lizard, and Mojave ground squirrel.

Arizona Complaint (PDF)

California Complaint (PDF)

Portland Complaint (PDF)

Washington, D.C. Complaint (PDF)

Tags: , ,

National Marine Fisheries Service to Determine if 82 Species of Coral are Threatened or Endangered by Climate Change

Posted on February 18, 2010 by Robert Horton

Euphyllia paradivisaOn February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act “presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.”  See 90-Day Finding (PDF).

If a “threatened” listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of “take” of any such species without an incidental take permit. 

If any of the species are listed as “endangered,” they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from “taking” or “harming” any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted “take” of, or “harm” to species imperiled by climate change.

In its petition, CBD cites various studies that conclude that by 2030 human-caused climate change, even under the most conservative projections of increases in GHGs, will cause 80% of the world's coral reefs to experience mass bleaching events at five-year intervals from which they cannot fully recover.  CBD also cites evidence that human-caused GHGs are also causing ocean warming, ocean acidification, more frequent and more intense storms, and sea-level rise, which act synergistically to jeopardize the continued existence of the world’s coral reefs.  Furthermore, CBD contends that coral reefs are already under stress from over-fishing, physical damage from boat groundings and anchors, and point-source water pollution, as well as dredging, coastal development, and agricultural practices that increase sedimentation and the concentration of nutrients in shallow coastal waters where coral reefs form.

In conjunction with its 90-day finding, NMFS has opened a 60-day public comment period to solicit information and comments from the public, government agencies, scientists, and industry on the status of the 82 species being considered for listing.  Under the Endangered Species Act, NMFS has 12 months to determine whether the petition is warranted as to each of the 82 species under review, unwarranted, or whether it needs more information before it can make the determination.

Notably, the 90-day determination does not mean that listing is a foregone conclusion.  See, e.g., the U.S. Fish and Wildlife Service’s recent determination not to list the American pika.  However, NMFS has already listed as threatened elkhorn and staghorn corals, the two primary reef-building corals in Florida and the Caribbean, primarily due to disease, prolonged elevated sea surface temperature, and hurricanes. Indeed, NMFS issued a Section 4(d) rule extending the full protection of the “take” prohibition under Section 9 of the Act to the elkhorn and staghorn throughout their range. 

It is unclear whether NMFS intends the elkhorn/staghorn 4(d) rule to require Section 7 consultation (for federal actions) or Section 10 incidental take permits (for non-federal projects and activities) that contribute to climate change (including prolonged elevated sea surface temperature and more frequent/intense hurricanes) and increased concentrations of carbon dioxide (which contributes to acidification).  NMFS characterized the major stressors (disease, prolonged elevated sea surface temperature, and hurricanes) as "unmanageable."  And it expressed its intent that the Section 9 "take" prohibition was necessary "specifically to address the lesser stressors that are amenable to management," which suggests such "lessor stressors" as sedimentation, abrasion and breakage from human activities such as boating, fishing, and SCUBA diving, but not GHG emissions.

It remains to be seen if NMFS will list any of the 82 coral species as threatened or endangered.  But if it does, it may well attempt to limit the implications of such listings under the Endangered Species Act for industries and activities thought to contribute to climate change.
Tags: , , ,

Fish and Wildlife Service Determines American Pika Not Endangered by Climate Change

Posted on February 17, 2010 by Robert Horton

Conservation groups hoped to make the American pika  the second mammal besides the Polar Bear, and the first in the lower 48 states, to be listed under the Endangered Species Act as threatened or endangered specifically due to climate change.  But the U.S. Fish and Wildlife Service (Service) determined that listing is not warranted at this time. See Notice (PDF).

The pika is extremely sensitive in increased ambient temperature (several hours above 78° F can be lethal).  But with the exception of certain lower elevation populations in the Great Basin, the Service determined that, within much of its range, the pika can adapt to the predicted 5.4° F increase by 2050 in average surface temperatures by retreating to cooler subsurface habitat during the warmest times of day, and by becoming more active at night and during the cooler early morning and evening hours.  Thus, the Service determined that the pika is neither endangered (i.e., in danger of extinction) nor threatened (i.e. likely to become endangered in the foreseeable future).

Shaye Wolf, a biologist with the Center for Biological Diversity, criticizes the finding as "a political decision that ignores the science and the law."

Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range.  If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere. 

Thus, any refinery in the United States, e.g., could become subject to Endangered Species Act regulations protecting pika hundreds or thousands of miles away.  See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

So far, the prospect of using the Endangered Species Act to regulate GHG emissions has not materialized.  Within months of listing the polar bear as threatened due to climate change, the Department of the Interior under the Bush administration adopted a rule that specifically prohibits 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.  Much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  But the polar bear rule is being challenged in ongoing litigation, and may not survive judicial scrutiny.

Although the Service declined to list the American pika as endangered or threatened due to climate change, it is currently considering 82 species of stony coral for listing due to the impacts of climate change such as sea-level rise, increased temperature of surface waters, acidification, and greater frequency and intensity of storms.
Tags: , ,

No Critical Habitat Designation for Florida Panther

Posted on February 17, 2010 by Lauren Valk

On February 11, 2010, the Fish and Wildlife Service reported that it will not be designating critical habitat for the Florida panther. This announcement comes in response to petitions submitted to the Service by several environmental groups including the Sierra Club and the Center for Biological Diversity requesting designation of 3 million acres of land in south Florida as critical panther habitat.

The Service determined that critical habitat designation is not in the best interest of the Florida panther at this time but retained discretion to designate habitat at a later time. In lieu of designating critical habitat, the Service plans to implement a series of habitat conservation projects outlined in its Florida Panther Recovery Plan (PDF), which includes conservation efforts proposed jointly by environmental organizations and landowners.

In a statement (PDF) issued by the Service, the Service explained that:

A public-private partnership approach is essential for recovery of the Florida panther since so much of the panther’s habitat is privately owned. A critical habitat designation so closely following the finalization of the Florida Panther Recovery Plan would possibly undermine the long-term strategy outlined in the plan to constructively engage private landowners; State, Federal, and local agencies; and other interested groups and members of the public. This dialogue is a key part of addressing the human dimension aspects of panther recovery.

While some environmental groups support the Service’s approach to protecting the panther, which includes establishment of conservation banks that protect large parcels of habitat and implementation of wildlife crossings to help panthers safely cross roads, others do not think the Service’s plan goes far enough. On February 18, 2010, five environmental groups, including the Sierra Club, filed a lawsuit (PDF) against the government in federal court claiming that the Service has failed to protect the Florida panthers as required by the Endangered Species Act. The lawsuit requests the court to remand the matter back to the Service and to order the Service to undertake prompt rulemaking in order to designate 3 million acres of south Florida land and additional land to the north as critical habitat.

The Florida panther has been a federally protected endangered subspecies since 1967. Today’s population is estimated at around 100 panthers. They occur primarily in southwest Florida.

Tags: , ,

Fish and Wildlife Service Proposes Significant Increase in Critical Habitat for Bull Trout

Posted on February 15, 2010 by Lauren Valk

On January 13, 2010, the Fish and Wildlife Service proposed to revise its 2005 designation of critical habitat for the bull trout (Salvelinus confluentus), a species that has been protected under the Endangered Species Act (“ESA”) since it was listed as threatened in 1999. 

The proposed rule (PDF) represents a dramatic increase in critical habitat from that currently designated under the 2005 rule.  The rule as revised includes approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada, which is a 79% increase in total miles of streams and 74% increase in total acres of lakes and reservoirs designated as critical habitat for the bull trout (see the Service's comparison (PDF) of area 2005 critical habitat to area proposed).

The proposed revision comes as the result of a 2006 Federal lawsuit in the U.S. District Court for the District of Oregon filed by the Alliance for the Wild Rockies and Friends of the Wild Swan, alleging that the Service failed to designate adequate critical habitat and unlawfully excluded areas from the final designation.  The Service notified the court in March 2009 that it would seek a remand of the 2005 final rule based on an Investigative Report by the Department of the Interior Inspector General that found a former Department of the Interior political appointee had interfered with the designation by directing large areas to be excluded from what had been proposed and by not allowing the inclusion of any areas unless there was absolute certainty that bull trout were present.

The proposed revision is different from the 2005 final designation in that the Service is not excluding any areas that have been determined to be essential to the conservation of the species. This translates into the following changes to the rule:

  • 929 miles (about 4% of the total designation) of unoccupied habitat now designated as critical habitat whereas no unoccupied habitat was included in the 2005 designation;
  • 165.9 miles of streams now designated as critical habitat in the Jarbidge River basin where as no critical habitat was previously designated in the Jarbidge River basin;
  • no automatic exclusions for Federal lands with management plans that were previously excluded from critical habitat designation under section 4(b)(2) of the ESA; and,
  • one additional Primary Constituent Element related to the presence of nonnative fish that may prey on, compete with, or inbreed with, bull trout.

The Service estimates that the revised habitat designation will cost an additional $5 to $7 million per year over the next 20 years from increased administrative costs. Comments on the proposed critical habitat revision and draft economic analysis will be accepted by the Service until March 15, 2010.

More information can be found on the Service's bull trout page. 

Tags: , ,