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."
Yesterday, the House Committee on Natural Resources held a second hearing regarding implementation and impacts of the Endangered Species Act. Today's hearing was titled: Transparency and Sound Science Gone Extinct?: The impacts of the Obama Administration's Closed-Door Settlement on Endangered Species and People. In a summary description issued before the hearing, the Committee stated that it anticipated the hearing would "highlight how the lack of data transparency is leading to increased numbers of species being listed and critical habitat being designated under the Endangered Species Act (ESA)." The witnesses included, among others, representatives from the Pacific Legal Foundation and U.S. Fish and Wildlife Service.
On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys' fees under the Endangered Species Act's fee shifting provision. See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).
The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of litigation, (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." The district court first found, relying on a 1983 Supreme Court decision analyzing the Clean Air Act's fee shifting provision, that a fee award is only "appropriate" when the requesting party is also the "prevailing party." In addition to being a prevailing party, however, the district court also found that for a defendant to be entitled to fees under the Endangered Species Act, one of the following criteria had to be satisfied: (i) the action must have been frivolous, unreasonable, or without foundation; or (ii) plaintiffs must have continued the litigation after it became clear that the action was frivolous, unreasonable, or without foundation.
Because the action was dismissed with prejudice after it was determined that plaintiffs lacked standing, the district court found that the defendant was a prevailing party. As for the second element, the district court found that because it was "conclusively determined that" the key plaintiff for purposes of standing "was a paid plaintiff, hired by the other plaintiffs and their counsel," the case "was groundless and unreasonable from its inception, and, therefore, that [defendant] should recover the attorneys' fees it incurred when it was forced to defend itself in litigation."
Because of the egregious nature of the facts, the district court also took the remarkable step of ordering plaintiffs jointly and severally liable for the fee award.
On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act. The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations. (See our posts from January 4 and January 14 for a discussion of this controversy.)
The wolverine resembles a small bear. Adults weigh between 17 and 40 pounds. The range of the species includes portions of California, Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming. Wolverines tend to live in remote and inhospitable places and occur at low densities making it difficult to track their distribution.
The Service's proposed rule states, based on climate modeling, that "habitat loss due to increasing temperatures and reduced late spring snowpack due to climate change is likely to have a significant negative population-level impact on wolverine populations in the contiguous United States. In the future, wolverine habitat is likely to be reduced to the point that the wolverine in the contiguous United States is in danger of extinction." While the proposed listing would protect the wolverine from hunting and trapping, the Service has proposed a special rule that would permit a number of activities occurring within the wolverine's habitat to continue. These activities, which are are often considered to result in take for other species, include infrastructure development, snowmobiling, backcountry skiing, and timber harvesting. The Service stated in the proposed rule that it does not consider these activities to constitute a significant threat to the species.
Although it now seems almost certain that the wolverine will receive some level of protection from the federal government, a number of environmental groups would likely argue that the wolverine should have received protection sooner. There have been multiple petitions to list the wolverine over the past 20 years. In April 1995, the Service concluded that a petition to list the wolverine as threatened or endangered did not provide substantial information indicating that listing may be warranted. In October 2003, the Service issued a 90-day finding concluding that a second petition failed to present substantial scientific and commercial information indicating that listing may be warranted. And in March 2008, after a third petition, the Service published a 12-month finding concluding that listing was "not warranted." An environmental organization challenged this 12-month finding in federal court, however, and in order to settle the litigation the Service agreed to reconsider the petition. Thereafter, in December 2010, the Service issued a 12-month finding concluding that listing was warranted but precluded by high priority listing actions. But in 2011, the Service settled a set of consolidated actions challenging its practices with respect to candidate species. The wolverine was one of the 251 candidate species covered by these settlements.
On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act. Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical habitat, and the Service failed to provide an adequate response to comments submitted by the State of Alaska. With respect to one of the areas designated by the Service, the district court explained that "the Service cannot designate a large swath of land in northern Alaska as 'critical habitat' based entirely on one essential feature that is located in approximately one percent of the entire area set aside."
On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court. (A short discussion of the history leading up to these settlements can be found here and here.)
The Safari Club asserted that it had a procedural interest in the settlements because they "establish an illegal procedure - the elimination of the Service's statutory authority to find that a proposal to list a species is warranted but precluded by higher priorities." As for injury, the Safari Club asserted that it had a concrete interest in the litigation because its members hunted three of the candidate species and, so long as the species remained on the candidacy list, its members would be able to continue to hunt the species without fear of violating the Endangered Species Act. The D.C. Circuit rejected these arguments, finding that there was nothing in the settlement agreements that forced the Service to violate the ESA, and that the Safari Club's interest in delaying the listing of a species to benefit hunting activities was not a protected interest under the ESA.
As for the alleged procedural injury, the D.C. Circuit found, interpreting the ESA, that there was nothing in the ESA requiring "the Service to find that listing a species is precluded under any specific circumstances." And, Congress did not authorize judicial review of a warranted finding; "[i]nstead, a person aggrieved by a warranted finding may challenge the Service's final rule listing the species." In light of these findings, the Court held that the Safari Club could not demonstrate a procedural injury arising from the settlements.
The D.C. Circuit also found that the warranted but precluded process established by the ESA was not intended to promote the take of a candidate species. Instead, it was intended to be a safety valve for an overburdened agency. Therefore, because the asserted interest (continued hunting) was contrary to the ESA's statutory purpose (protection of the species), the Safari Club could not establish a concrete injury for purposes of Article III standing.
Accordingly, the D.C. Circuit affirmed the denial of the Safari Club's motion to intervene as a matter of right. While the Safari Club also moved for permissive intervention, the D.C. Circuit declined to address that issue on appeal, noting that it was an open question as to whether Article III standing is required for permissive intervention.
Earlier this month we reported that 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 in the District of Columbia challenging the ESA settlements. While the lawsuit raises many of the same arguments recently rejected by the D.C. Circuit, there do appear to be additional arguments pertaining to the procedural process which the D.C. Circuit did not address. However, because of the substantial overlap, we do anticipate that motion practice will be forthcoming.
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."
On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law. Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program. The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules - unless they were to downlist or delist species.
The ESA has not been updated in 23 years, and Chairman Hastings stressed that "Congress needs to do its job to reauthorize the law." He stated, "The law is expired, failing to achieve its fundamental goal of species recovery, and has become a tool for expensive debilitating lawsuits." Moreover, he stressed, that Congress has "a duty to act on the ESA's reauthorization and it needs to be updated in a calm, careful and bipartisan way."
According to Chairman Hastings, "The Interior Appropriations Bill that Chairman Simpson has brought to the House Floor prioritizes funding to ensure that core responsibilities and environmental protections are met." As applied to the ESA, the bill originally focused on the continued funding of recovery activities while limiting funds for new listings and habitat designations.
Prioritizing funds for recovery activities, while limiting those available for listings, was an attempt to curb the growing number of lawsuits against the Fish and Wildlife Service and the National Marine Fisheries Service. Chairman Hastings stated, "By striking this provision, the Dicks amendment would reopen the litigation floodgates."
Despite Chairman Hastings' misgivings, passage of the Dicks Amendment is being hailed by some as "a major triumph for the Fish and Wildlife Service and environmentalists." The Center for Biological Diversity (Center) called the vote a "victory for imperiled species." Characterizing the original provisions of the appropriations bill related to the ESA as the "extinction rider," the Center's endangered species program director, Noah Greenwald, said that "it would have been a disaster for hundreds of animals and plants across the country that desperately need the help of the Endangered Species Act to survive."
The House is set to vote on the full appropriations bill in the coming days. If passed, it will move to the Senate.