Earlier this month, the U.S. Fish & Wildlife Service (Service) announced (pdf) the availability of its recovery plan (pdf) for the threatened southwest Alaska Distinct Population Segment of the northern sea otter (Enhydra lutris kenyoni). The recovery plan describes the status of the otter, its history, and a number of actions the Service believes will allow for the delisting of the otter. With respect to the otter's declining status, the recovery plan states that "[t]he only identified threat factor that is judged to have a high importance to recovery is predation[,]" and the weight of the evidence suggests that killer whale predation is the most likely cause. As for the otter's recovery, the recovery plan identifies three general objectives to achieve delisting, and explicit criteria for determining when each objective has been achieved.
On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").
In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its designated critical habitat. The biological assessment asserted that the Project would not effect the bull trout because the fish was not present in the surrounding watershed. In 2012, the U.S. Fish and Wildlife Service ("Wildlife Service") issued a letter of concurrence. Plaintiffs subsequently filed suit alleging that the Forest Service and Wildlife Service violated the Endangered Species Act and National Environmental Policy Act. The plaintiffs alleged that the defendants violated the Endangered Species Act because they failed to use the best available science when analyzing the Project's effects on bull trout. Specifically, the plaintiffs alleged that the defendants ignored reports from 1995 and 2005 concluding that the status of the bull trout in the surrounding watershed was "unknown."
In opposing the motion for preliminary injunction, the defendants first argued that because the plaintiffs were essentially challenging the biological assessment, and a biological assessment generally does not constitute a final agency action subject to review, the Endangered Species Act challenge failed as a matter of law. The district court rejected this argument, stating that the biological assessment "is subject to review because the [Letter of Concurrence] expressly relied on the [biological assessment] when determining the bull trout did not exist in the . . . watershed and that no formal consultation was necessary."
Next, setting the stage for its eventual decision, the district court stated that "[a]n agency is not obliged to conduct independent studies to improve upon the best available science or to resolve inconclusive aspects of scientific information," and that "[w]hen there are differing views as the impact of any agency action on a protected species, . . . an agency has the discretion to rely on the reasonable opinion of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'"
Addressing the substance of the plaintiffs' argument, the prior reports concluding that the status of the bull trout in the surrounding watershed was unknown, the court found that the 1995 report was based on the same snorkeling surveys that defendants' relied on, which "failed to find bull trout" in the surrounding watershed. Accordingly, although defendants relied on snorkeling surveys that were more than 15 years old, the court found that defendants complied with the Endangered Species Act because the surveys represented the best available science, and defendants were not obligated to conduct new surveys or studies.
The court also found that the defendants properly assessed bull trout habitat to conclude that bull trout did not and cannot exist in the watershed. Thus, the court held that plaintiffs failed to establish a likelihood of success on the merits.
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.