California Poised to Waive Protections for Endangered Fish as Tribes Seek to Shutdown Klamath Irrigation Project in an Effort to Save the Species

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a motion to immediately enjoin water diversions, which is presently set to be heard on July 11, 2018.

The Lost River sucker and shortnose sucker are listed as endangered species under the federal and California Endangered Species Act. They are also a fully protected species under California law, which means that their take is prohibited by state law with narrow exceptions for scientific research, efforts to recover the species, and where conservation and management of the species is provided for in a natural community conservation plan (NCCP) approved by the Department of Fish and Wildlife.

At the same time that the Klamath Tribes are seeking to shut down farming in the Klamath region purportedly to save the fully protected suckers, the California legislature is poised to waive the protections afforded to the suckers by the fully protected species laws. Assembly bill 2640 would grant a legislative waiver of the protections provided to the suckers by Fish and Game Code section 5515, permitting the Department of Fish and Wildlife to authorize the removal of four dams in the lower Klamath River, which would permanently eliminate the reservoir habitat above the dams currently occupied by both sucker species, and would result in the extirpation of the species in that portion of their range.

Legislative waivers of law are rare and generally disfavored, as they undermine the concept of the rule of law, that is, the notion that the law is to be applied in a fair and consistent manner. But they have been enacted on occasion in the context of species conservation.  In this instance, the waiver obliges the Department of Fish and Wildlife to make a finding that removal of the dams will not jeopardize the suckers and that the impacts to the suckers will be minimized.  But in light of the precarious status of the species and a dearth of information regarding its contemporary distribution and abundance, as well as the prominent role of the State of California as an advocate for dam removal, those concerned about the fate of the suckers may be concerned that the State has a greater interest in dam removal than the survival of the endangered suckers.

Bill to Consolidate Endangered Species Act Oversight Advances Out of Committee

Salmon School Underwater

On May 16, 2018, the House Committee on Natural Resources passed six bills, including the Federally Integrated Species Health Act (H.R. 3916).  H.R. 3916 is sponsored by Representative Ken Calvert, a Republican representing the 42nd Congressional District in California.  The bill proposes to amend the federal Endangered Species Act to vest the Secretary of Interior with Endangered Species Act authority over fish species that migrate between fresh and ocean waters, such as the endangered Sacramento River winter-run Chinnok salmon (Oncorhynchus tshawytscha).  Currently, that authority is vested in the Secretary of Commerce.  As a result, when dealing with water related projects in coastal states, often times the U.S. Fish and Wildlife Service (which is part of the Department of Interior) and the National Marine Fisheries Service (which is part of the Department of Commerce) will each have Endangered Species Act jurisdiction over fish species in the project area.  This dual oversight can lead to issues with respect to the evaluation and implementation of the Endangered Species Act.  The press release issued by the House Committee on Natural Resources described H.R. 3916 as a bipartisan attempt to reduce “regulatory duplication in enforcement of the Endangered Species Act.”

Friday, May 18, 2018 is Endangered Species Day

On Friday, May 18, 2018, agencies and organizations throughout the United States will celebrate the 13th annual Endangered Species Day, which recognizes conservation efforts that protect our nation’s imperiled species and their habitats.  Events are scheduled throughout the country to celebrate our biodiversity and efforts to conserve that diversity.

 

Texas Cactus Officially Downlisted to Threatened

Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 individuals at 105 sites across the Edwards Plateau of west-central Texas. In addition to identifying populations of the cactus that were previously unknown, the Service worked with state partners and private landowners to protect and conserve the existing populations. The Service’s Southwest Regional Director cited today’s decision as “a victory for the collaborative model of conservation that engages states, private landowners and conservation groups to play a central role in a species’ recovery.”

The Tobusch fishhook cactus is just one of at least a dozen species that the Service plans to reclassify or remove from the ESA in the coming months, including the Kuenzler hedgehog cactus, the American burying beetle, and the Kirtland’s warbler.

Numerous Parties File Amicus Briefs in Dusky Gopher Frog Case

As we reported here, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, No. 17-71, on January 22, 2018.  Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated “critical habitat” for the dusky gopher frog (Rana sevosa) and included areas within the critical habitat that the frog does not and could not inhabit. Specifically, the currently uninhabitable areas are within the frog’s historic range but today contain only one of the three habitat characteristics deemed essential for the frog’s life cycle. The areas are part of a forest actively managed for timber production, and the owners (Petitioners) have no intention of restoring the characteristics that could support the frog.

The U.S. Supreme Court agreed to consider two questions presented by the Fifth Circuit’s decision: (1) Whether the Endangered Species Act (ESA) prohibits designation of critical habitat within areas that are unoccupied and neither habitat nor essential to species conservation; and (2) Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Petitioner Weyerhaeuser Company filed its opening brief on April 23, 2018. Respondent Markle Interests, LLC et al. filed their opening brief in support of petitioner on the same day.[1]

Following the submission of the opening briefs, 18 amicus briefs were filed in support of Petitioners by a wide array of groups, including 20 states and national organizations representing business, farmers, home builders, and energy interests. The parties to those briefs are as follows:

  • Coalition for a Sustainable Delta, et al.
  • Center for Constitutional Jurisprudence filed.
  • St. Tammany Parish Government.
  • Southeastern Legal Foundation.
  • Wyoming Stock Growers Association, et al.
  • Energy and Wildlife Action Coalition.
  • American Exploration & Production Council, et al.
  • Chamber of Commerce of the United States of America.
  • Washington Legal Foundation, et al.
  • National Conference of State Legislatures, et al.
  • The Cato Institute.
  • San Juan County, Utah.
  • The National Association of Home Builders, et al.
  • Building Industry Legal Defense Foundation, et al.
  • Brief of Alabama and 19 Additional States.
  • National Federation of Independent Business, et al.
  • Cause of Action Institute.
  • The American Farm Bureau Federation, et al.

Opposition briefs on the merits are due on June 29, 2018. Oral argument has not been scheduled at this time, but it is anticipated that it will be scheduled early in the fall term. Please check back with us to see how the U.S. Supreme Court decides these issues of critical important to ESA jurisprudence, namely how to interpret the critical habitat provisions of the ESA and how much deference to give to the Service’s interpretation of those provisions.

[1] Markle Interests, LLC, P&F Lumber Company 2000, LLC, and PF Monroe Properties, LLC, were plaintiffs-appellants below, but in the U.S. Supreme Court are respondents pursuant to Rule 12.6.

USFWS Guidance Clarifies Trigger for ESA Incidental Take Permits Tied to Habitat Modification

U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in “take” of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance provides general instructions applicable to all ITPs, regardless of whether they permit direct take or take due to habitat modification. The guidance emphasizes that the decision to pursue an ITP or whether to cover a species is the project proponent’s choice to make.  For example, the guidance recognizes that it is “vital that [USFWS] staff recognize that whether to apply for an [ITP] is a decision of the applicant” and directs staff to not use mandatory language (e.g., a permit is “required”) when communicating with non-federal parties.  Further, the guidance recognizes that “[t]he biological, legal, and economic risk assessment regarding whether to seek a permit belongs with the private party determining how to proceed.”  Finally, USFWS staff is directed to proactively advise potential applicants that an ITP is only appropriate when an activity is likely to result in the “take” of ESA-listed wildlife and that it is the potential applicant’s decision whether to apply for an ITP.

Additionally, the guidance provides that habitat modification, in and of itself, does not constitute “take” unless the three components of “harm” are met. Thus, in order to find that habitat modification constitutes an incidental take of listed species, the following questions must all be answered in the affirmative:

  1. Is the modification of habitat significant?
  2. Does that modification also significantly impair an essential behavior pattern of a listed species?
  3. Is the significant modification of the habitat likely to result in the actual killing or injury of wildlife?

These principles are consistent with the USFWS Habitat Conservation Planning Handbook and prior case law. However, as a point of departure from prior interpretation, the guidance also reasons that ITPs cannot authorize “take” that occurs from activities that “harass” a listed species because harassment is not “incidental.”

Attached to the guidance memorandum is a questionnaire for potential ITP applicants and a flowchart.  Both attachments are intended to assist USFWS staff and potential applicants in determining whether an ITP may be advisable for a given activity or project.

Federal Greater Sage Grouse Conservation Plans Revisited

The Bureau of Land Management (“BLM”) has announced a 90-day comment period on proposed amendments to six Resource Management Plans (“RMPs”) and associated draft Environmental Impact Statements (“DEISs”) designed to protect the greater sage grouse (Centrocercus urophasianus).  In 2015, BLM finalized RMPs that addressed greater sage grouse conservation efforts across ten states.  The six RMPs that are the subject of this latest comment period address restrictions on energy development and other activities in Colorado, Idaho, Nevada, Northern California, Oregon, Wyoming and Utah for the benefit of the greater sage grouse. This announcement follows BLM’s October 2017 announcement of a public comment period for reconsideration of the RMPs.  In April 2018, the proposed amendments to the Wyoming RMP leaked to the public.  Amendments to RMPs addressing greater sage grouse conservation in Montana and portions of North and South Dakota are expected at a later date.

In general, the amendments to the RMPs are intended to bring the RMPs into closer alignment with individual state practices and interests.  Aligning state and federal interests has been an ongoing focus of Department of Interior (“DOI”) Secretary Ryan Zinke and the proposed amendments adhere to DOI Secretarial Order 3353, which focuses on reconciling federal management plans with state management practices.  According to DOI Deputy Interior Secretary David Bernhardt, the specifics and magnitude of the amendments to the six RMPs vary depending in part on input from the relevant states.

Amendments to the RMPs may have implications for the greater sage grouse’s status under the Endangered Species Act (“ESA”).  Over the course of the RMPs’ development, the U.S. Fish and Wildlife Service (“USFWS”) had been considering extending ESA protections to the greater sage grouse in response to listing petitions from conservation groups.  USFWS relied heavily on the RMPs in reaching its determination that the greater sage grouse did not warrant protection under the ESA.  The greater sage grouse’s ESA status could again come under scrutiny should these amendments be finalized.  The BLM announcement states that the public comment period for the six RMPs and DEISs will close on August 2, 2018.

U.S. Fish and Wildlife Delists Lesser Long-Nosed Bat

The U.S. Fish and Wildlife Service (FWS) issued a final rule removing the lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) from the Federal List of Endangered and Threatened Wildlife due to recovery.  According to FWS, threats to the bat have been eliminated or reduced and populations are healthy and stable such that the species is no longer endangered or threatened with endangerment under the Endangered Species Act (ESA).  It is the first bat species delisted from the ESA due to recovery.

When the bat was first listed in 1988, fewer than 1,000 bats at only 14 known roosts were believed to exist. There are now an estimated 200,000 bats at 75 roosts in the southwestern United States and Mexico.  The bat was removed from Mexico’s endangered species list in 2015.

In the United States, most lesser long-nosed bat roosts and forage areas are managed by federal agencies, including the U.S. Forest Service, Bureau of Land Management, National Park Service, and the U.S. Army’s Fort Huachuca.  All have integrated management of lesser long-nosed bat forage plants into their land use and resource management plans.  Federal agencies are also aiding in deterring human disturbance of roost site caves and abandoned mines through site closures, law enforcement, and installation of bat gates that eliminate human access.  FWS believes that the bat’s flexible and adaptive behaviors will allow it to remain viable under changing climatic conditions.

FWS has prepared a Post-Delisting Monitoring Plan (PDMP) committing to monitoring the lesser long-nosed bats’ continued roost occupancy, as well as monitoring and assessing the bats’ forage availability. The PDMP will alert FWS to any drops in population numbers or future threats to the bats’ viability

California Lists Tricolored Blackbird

On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.

The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a “dramatic decline” in population estimates from 2008 to 2011 and again from 2011 to 2014.  The Department of Fish and Wildlife recommended listing as threatened in its 2018 12-month status review, despite the fact that the 2017 population estimate was 20 percent higher than the 2014 estimate.

It is unlawful to take species listed as threatened under the California Endangered Species Act without authorization from the Department of Fish and Wildlife.

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