Court Reluctantly Upholds Designation of Critial Habitat for Frog

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and Wildlife Service, No. 13-234c and 13-413 (Aug. 22, 2014).  

Before finalizing the critical habitat designation, the Service had analyzed the potential economic impacts of the designation on the private property, analyzing three scenarios:  (1) development without the need for a federal permit or approval; (2) partial development because the necessary federal permit or approval would require conservation of 60% of the property; and (3) no development because the necessary federal permit or approval could not be granted in light of impacts to the designated critical habitat.  The Service estimated that the economic impact under the second and third scenarios would be a loss of $20.4 million and $33.9 million, respectively.  In the final rule designating the critical habitat, the Service stated that because it "did not identify any disproportionate costs that are likely to result from the designation[,] the Secretary [did] not exercis[e] his discretion to exclude any areas from this designation of critical habitat for the dusky gopher frog based on economic impacts."  

After dismissing a challenge to plaintiffs' standing, the court explained that under the Endangered Species Act (ESA), both occupied and unoccupied property may be designated as critical habitat.  Thus, the mere fact that the frog was not currently occupying the private property was not determinative.  The court also explained, however, that in order for the Service to designate an area that is not occupied by the species, in addition to considering the economic impact of the designation, the Service must find, based on the best scientific data available, that the designation is "essential for the conservation of the species" and "a designation limited to [the] present range [of the species] would be inadequate to ensure the conservation of the species."

As every independent peer reviewer of the proposed rule concluded that limiting the critical habitat designation to occupied and unoccupied areas in Mississippi would be inadequate to "conserve" the frog, and as the land located in Louisiana contained ephemeral ponds that could play a key role in the future breeding success of the frog, the court found that the Service's "determination seems reasonable and, therefore, entitled to Chevron deference."  Turning to the issue of economic impacts, which the court described as "the most compelling issue advanced by plaintiffs in challenging the validity of the Rule," the court concluded that in light of the "somewhat paralyzing standard of review," it had to defer "to the agency's expertise in its methods for cost projections and its refusal to except [the property] from the designation."      

While the court's ruling was based primarily on the deference accorded the Service under the ESA and the Administrative Procedure Act, it was certainly not without its fireworks.  For example, in one portion of the opinion the court described defendants' attack on standing grounds as "utterly frivolous."  The court also stated, summarizing its view of the issues and the law:  "The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.  The troubling question is whether the law authorizes such action and whether the government has acted within the law.  Reluctantly, the Court answers yes to both questions."  

While plaintiffs did not prevail in the district court, this dispute is far from over.  First, as the court pointed out, plaintiffs did not allege in their complaint that the designation constitutes an unconstitutional taking under the Fifth Amendment.  Such a claim could still be presented to the Court of Federal Claims.  Second, a notice of appeal was filed just four days after the decision was issued.



Forest Service Agrees to Initiate Consultation regarding Fuels Reduction Project at Upper Echo Lake south of Lake Tahoe and Halt Activity Pending Consultation

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo Lake Hazardous Fuel Reduction Project in 2012 and began to implement the Project in fall 2013 over the objections of conservation biologist Dr. Dennis Murphy.  On behalf of Dr. Murphy, Nossaman filed an action challenging the Project in the United States District Court for the Eastern District of California.  In October and November 2013, the Forest Service implemented the first phase of the Project, cutting trees and brush and creating slash piles consisting of the cut materials.

The agency invoked a categorical exclusion to avoid conducting environmental review of the Project under the National Environmental Policy Act, and until recently refused to evaluate the effects of the Project on the Sierra Nevada yellow-legged frog as required by the Endangered Species Act.  Information regarding the deleterious impacts of the Project is available here

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.   

After More Than Five Years, Proposed Rule to Delist Hawaiian Hawk Reopened for Comment

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species.  The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range."  While the official comment periods on the proposed rule and the proposed post-delisting monitoring plan closed on August 4, 2009, the Service did not make a final determination on the proposed rule. 

Last week, on February 12, 2014, the Service announced the reopening of the public comment period on the proposed rule to delist the Hawaiian hawk.  In the announcement, the Service states that "[a]lthough new information shows negative habitat trends due to urbanization and nonnative plant species invasion, efforts at habitat restoration that benefit the Hawaiian hawk are achieving success," and that even in the face of potential habitat concerns "the Hawaiian hawk is resilient enough to maintain itself over time in a variety of habitat types." 

The announcement states that comments submitted during the prior comment periods do not need to be resubmitted.  However, comments on the new information presented in the announcement "must be received or postmarked no later than April 14, 2014." 

The proposed rule acknowledges that if the Hawaiian hawk is delisted, thereby stripping away all protection provided by the Endangered Species Act, the hawk would still be protected by the Migratory Bird Treaty Act. 

For another take on the Service's announcement and proposed action, see the following article by Carolyn Lucas-Zenk in the West Hawaii Today.

With the Conclusion of the Shutdown, the U.S. Fish and Wildlife Service Gets Back to Work

Getting back into the swing of things, earlier today the U.S. Fish and Wildlife Service determined that the eastern small-footed bat (Myotis leibii) does not warrant listing at this time, and commented on its proposal to list the northern long-eared bat (Myotis septentrionalis) (pdf) as endangered under the Endangered Species Act.  The notice issued by the Service states that the "primary threat to the northern long-eared bat is a disease, white-nose syndrome, which has killed an estimated 5.5 million cave-hibernating bats in the Northeast, Southeast, Midwest and Canada."  According to the notice, comments on the proposed listing must be received by 11:59 p.m. Eastern Time on December 2, 2013.  As for the eastern small-footed bat, the Service concluded that although the "bat also hibernates in caves and mines, it has not shown the drastic decline at winter hibernacula compared with that experienced by the northern long-eared bat." 

Impacts of Government Shutdown on Endangered Species

As reported earlier today by Emily Yehle of Greenwire, if the U.S. Government fails to avoid a government shutdown before tomorrow, a number of federal agencies, including the U.S. Environmental Protection Agency and U.S. Department of the Interior are planning to "pull the plug on their online presence."  (E&ENewsPM, Sept. 30, 2013).  You may ask, what other impacts will there be as a result of the impending government shutdown?  While, according to the Department of the Interior's website (pdf), as a general matter "Service employees will not continue to work" on court ordered deadlines for endangered species during the shutdown.  The Service does provide itself a bit of wiggle room, however, stating that "[i]n the limited circumstances where a court-ordered deadline is imminent, unless and until an extension is granted, Service employees on a case-by-case basis may be required to continue to work on these matters."  As for section 7 consultations and the National Environmental Policy Act, the website states that "Service employees would not be conducting any consultations, NEPA or other work of this nature until the governments reopens."    

Court Enjoins "Salvage Harvest" Project in Area Scorched by the Mill Fire

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage and Hazard Tree Removal Project (Project), authorizing "salvage harvest" activities in areas that overlapped with Northern spotted owl habitat.  According to the Forest Service's statement of purpose, the Project was intended to address, among other things, the hazardous conditions created by the Mill Fire.  In addition to approving the Project, the Forest Service made an "emergency situation determination."  As a result of this determination, the Forest Service was authorized to implement the Project immediately after publication of its notice of decision, and the right to administrative appeal was eliminated.  

On April 26, 2013, a plaintiff environmental group served the Forest Service with a "60-day notice to sue" under the Endangered Species Act (ESA).  Three days later, on April 29, 2013, the plaintiff filed suit in federal court.  The complaint alleged that the Forest Service violated the National Forest Management Act and the National Environmental Policy Act (NEPA).  Although the plaintiff did not allege a separate ESA claim, it did "nest" an ESA claim within the alleged NEPA violation.  Specifically, the plaintiff alleged that, because the Forest Service violated the consultation requirement in the ESA, the Forest Service was required to prepare an Environmental Impact Statement (EIS) for the Project.    

On September 6, 2013, the United States District Court for the Eastern District of California found that the Forest Service had violated NEPA and failed to consult as required under the ESA.  Conservation Congress v. U.S. Forest Service, No. Civ. S-13-0832 (Sept. 6, 2013) (pdf).  The district court enjoined the Forest Service from conducting any "salvage harvest" activities within the Project area.  

With respect to the NEPA claim, the court stated that "if the Forest Service's proposed action threatens to violate federal environmental law - including the Endangered Species Act - an EIS is required."  After noting that consultation is required under the ESA whenever a project may affect a listed species (whether beneficially or negatively), and citing to numerous documents in the record wherein the Forest Service asserted that the Project would beneficially affect the Northern spotted owl, the court concluded that consultation with the U.S. Fish and Wildlife Service (Wildlife Service) was required under the ESA.  

Because consultation was required, the court next analyzed the communications between the Forest Service and Wildlife Service regarding the Project to determine if such consultation occurred.  The Forest Service admitted that it did not "formally consult" with the Wildlife Service, but alleged that it had complied with the ESA's consultation requirement by informally consulting with the Wildlife Service.  As part of its analysis, the court examined whether the Wildlife Service had issued a letter confirming that it concurred with the Forest Service's determination.   

The court found that the Forest Service had failed to informally consult with the Wildlife Service, since instead of requesting informal consultation and a concurrence from the Wildlife Service, the Forest Service merely requested "technical assistance regarding the scientific soundness of its analysis."  Additionally, the court found that the Forest Service had failed to comply with the ESA's consultation requirement because, even if an informal consultation had taken place, "it did not result in the required concurrence of [the Wildlife Service]."  

Accordingly, the court held that the Forest Service violated the ESA, and thereby violated NEPA.  In reaching this conclusion, the court rejected the Forest Service's argument that the ESA challenge was barred because of the plaintiff's failure to comply with the ESA's 60-day notice requirement.  The court explained that in this case, because the Forest Service had issued an emergency situation determination, if the plaintiff complied with the 60-day notice requirement the Project "could be over and done with by the time it could file the ESA claim."  Therefore, under the specifics of this case, the Court found the failure to comply with the 60-day notice requirement was not fatal.  

Extra Record Evidence Saves Forest Service From Section 7(d) Violation

Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental take statement authorizing the U.S. Forest Service to permit grazing activities in habitat for the threatened bull trout (Salvelinus confluentus).  In 2012, due to changed circumstances, the Forest Service reinitiated consultation with FWS.  Despite not having completed a new biological assessment, the Forest Service adjusted grazing activities on two pastures.  In support of this adjustment, the Forest Service made a finding under section 7(d) of the Endangered Species Act that the new grazing plan would not jeopardize the continued existence of the bull trout.  Western Watershed Project, an environmental organization, filed suit shortly thereafter, alleging that the Forest Service violated section 7 and section 9 of the Endangered Species Act. 

Section 7 of the Endangered Species Act states that after initiating consultation, a Federal agency "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section."  Section 9 of the Endangered Species Act generally prohibits the unauthorized take of a listed species. 

With respect to the section 7(d) claim, the court found that "the Forest Service did not discuss the potential impact of trailing nearly 3,000 cattle over [the] spawning grounds just days before spawning would begin on August 15th," and that as a result the "required rational connection was not made in the [section] 7(d) determination[.]"  The court, however, considering expert declarations submitted after-the-fact by the Forest Service, found that a rational connection was subsequently made.  Citing the Ninth Circuit's decision in Western Watersheds Project v. Kraayenbrink, 632, F.3d 472 (9th Cir. 2011), the court held that it could rely on the extra-record declarations when ruling on the section 7(d) claim.  

As a result, after finding that the plaintiff failed to demonstrate a likelihood of success on its section 9 claim, the court denied plaintiff's motion for preliminary injunctive relief.         

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.