New Article Takes Stock of Federal Agency Proposal to Use Surrogates to Establish Take Limits

In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species.  We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and describe caselaw respecting the use of surrogates.  We go on to contend that the proposed rule leaves the process of surrogate selection and application without essential implementation details and describe five essential steps in surrogate selection and validation.

  1. Provide an explanation of the reasons why the direct assessment in the form of take of a specified number of individuals of a listed species or a proportion of the population of that species cannot be measured and assessed.
  2. Apply a structured deductive process to match a prospective surrogate with the listed species, employing available demographic and geographic information, inferences from other species, and experiences from conservation planning efforts elsewhere, which have successfully or unsuccessfully engaged surrogate approaches.
  3. Present a clear description of similarities and differences between the likely responses of the surrogate and target species to salient environmental phenomena, and identify any uncertainties that may manifest as different responses to environmental stressors.
  4. Articulate a means by which post-determination implementation and monitoring will be designed, using adaptive management to explore continuously the relationship and ecological relatedness between the surrogate and the listed species, and the responses of both to environmental stressors.
  5. Provide assurance that reinitiation of consultation will occur if it is found that the surrogate does not adequately (accurately) reflect the salient ecological responses of the listed species at any point that the incidental take statement remains in effect.

A pdf copy of the article is available here (pdf).

ESA Lawsuit Filed Challenging Operations At The Trinity River Fish Hatchery

The Trinity River Hatchery, which is operated by the California Department of Fish and Wildlife and funded by the U.S. Bureau of Reclamation, has a production capacity of approximately 40 million salmonid eggs.  Operations at the Hatchery are intended to mitigate for lost salmonid habitat due to the construction and operation of various water projects.  However, a recent lawsuit filed by the Environmental Protection Information Center alleges that instead of mitigating for impacts to endangered and threatened salmon and steelhead, the Hatchery is "taking" the protected species in violation of the Endangered Species Act.  Specifically, the complaint (pdf) alleges that protected salmonids are being collected for use as broodstock without the explicit approval of the National Marine Fisheries Service, and that the released hatchery fish compete with, prey upon, or interbreed with the protected species.  A representative for the plaintiff stated that it filed the lawsuit "to shine a light on failed policies and open up a public process that is focused on the recovery of wild runs of salmon and steelhead."

Proposed Rule Would Regulate U.S. Navy's Impact on Marine Mammals

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines. 

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine Mammal Protection Act, which generally prohibits the unauthorized take of marine mammals.  In addition, eight species (blue whale, humpback whale, fin whale, sei whale, sperm whale, the Hawaiian insular stock of false killer whale, Guadalupe fur seal, and Hawaiian monk seal) are listed as threatened or endangered, and afforded protection under the Endangered Species Act.  The Navy will be consulting with NMFS to further discuss mitigating any impacts on these eight species.

The comment period for the proposed rule ends on March 11.

Court finds that Section 9 does not require demonstration of future harm

In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead in violation of Section 9 by allowing too many wild horses in the Murderer's Creek Wild Horse Territory in the Malheur National Forest.  While the Court eventually held that because of disputed issues of material fact neither party was entitled to summary judgment on the Section 9 claim, the Court resolved two key legal issues in plaintiffs' favor, including the above. 

In 1971, Congress enacted the Wild Horses Act.  Under the Act, the Forest Service was tasked with managing wild free-roaming horses and burros by establishing wild horse territories, developing management plans for each territory, determining an appropriate management level (AML) of wild horses in each territory, and maintaining a current inventory of wild free-roaming horses and burros.  

In 1975, it was estimated that 174 horses resided in Murderer's Creek.  Subsequently, the Forest Service, along with the Bureau of Land Management, adopted a management plan that established an AML of between 60 and 70 horses.  In 1984, the agencies updated the plan and revised the AML to an average of 100 horses, with a not to exceed level of 140 horses.  In 2006, the census data revealed that there were approximately 436 horses in Murderer's Creek.  In 2007, the agencies adopted a second management plan for Murderer's Creek, establishing an AML of 50 to 140 horses.

In its ruling on the cross-motions for summary judgment, the Court acknowledged that in order to prevail on the Section 9 claim, the plaintiffs must prove by a preponderance of the evidence that the Forest Service's failure to control the wild horse population has resulted in take of MCR steelhead.  The Court also found, however, that this did not mean that plaintiffs must prove a likelihood of future harm.  The Court explained that while the relative likelihood of future harm is a factor courts must consider in tailoring the scope of any injunctive relief that is issued, to "require a citizen plaintiff to prove that 'take' is likely to occur in the future tips the balance away from the preservation of species and would thwart Congress' overriding purpose of providing 'a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved' and of providing 'a program for the conservation of such . . . species.'"  Further, with respect to the standard and scope of review for the Section 9 claim, the Court held, contrary to the Forest Service's arguments, that the matter would be reviewed de novo and that both parties would be allowed to submit extra record evidence.