House of Representatives Seeks To Clarify Lack Of Liability for Incidental and Accidental Take under Migratory Bird Treaty Act

On November 8, 2017, the House of Representatives Committee on Natural Resources approved an amendment to oil and gas-related legislation, the SECURE Act (H.R. 4239), that is intended to obviate liability for the incidental or accidental take of migratory birds under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. (“Act”).  The amendment, submitted by Congresswoman Liz Cheney (R-WY), provides: “This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.”  Section 2 of the Act prohibits more than twenty separate types of actions, such as the hunting, taking, killing capturing, possessing, importing, exporting, or transporting, related to migratory birds native to the U.S. or its territories.  16 U.S.C. § 703(a), (b). The Act provides that engaging in any of the prohibited types of actions subjects an individual or entity to criminal liability, penalties, or both.

The question of whether the Act applies to incidental take has resulted in a Circuit Split.  In January 2017, the Department of Interior’s (“DOI”) Solicitor issued opinion M-37041 clarifying the U.S. Fish and Wildlife Service’s position that the Act’s prohibition extends to incidental take.  However, the following month, the new administration temporarily suspended that opinion.  The latest DOI Report suggests this position will be reexamined.

Rep. Cheney offered the amendment to clarify the Act’s intent to “protect migratory bird populations from over-hunting, poaching, and illegal sales . . . . [A]mbiguous language within the [Act] has caused confusion as to whether otherwise lawful activities are also prohibited simply because they potentially result in the unintended or incidental death of birds.  The ambiguous language has led to overzealous [Bureau of Land Management] guidance and regulations on energy operators in [Wyoming].”  The SECURE Act, including the Cheney amendment, passed out of committee and is now headed to the House floor for debate and discussion.

Cascades Frog Takes Another Leap Toward Listing under CESA

On October 17, 2017, the California Fish and Game Commission (“Commission”) published notice of its preliminary positive finding on a petition to list the Cascades frog (Rana cascadae) as threatened or endangered under the California Endangered Species Act (“CESA”).  The Cascades frog inhabits a variety of habitats—including large lakes, ponds, wet meadows and streams—at mid-to-high elevations from the Klamath-Trinity region, along the Cascades Range axis in the vicinity of Mt. Shasta, southward to the headwater tributaries of the Feather River.  The California populations of the Cascades frog are understood to be genetically distinct from the populations in Oregon and Washington.  The listing process for the frog was initiated by a March 2017 listing petition from the Center for Biological Diversity to the Commission.  In July 2017, the California Department of Fish and Wildlife (“CDFW”) recommended that the Commission advance the species to candidacy, and in October the Commission voted to advance the species to candidate status, thus triggering the aforementioned notice.  The Commission’s decision also triggered a 12-month species status review by CDFW that will be used to inform the Commission’s ultimate determination of whether to list the species under CESA.  This status review process includes the solicitation of public comments regarding the frog’s biology and threats, the adequacy of existing management, and recommendations for management of the species.  Public comments and data related to the potential listing of the frog will be accepted for the next 12 months.

The Center for Biological Diversity separately petitioned the U.S. Fish and Wildlife Service (“USFWS”) in April 2012 to list the Cascades frog under the federal Endangered Species Act (“ESA”).  In July 2015, USFWS reached a preliminary positive finding that the species’ listing may be warranted, and USFWS is currently undertaking its own federal species status review of the frog.  The USFWS ESA National Listing Workplan, which lays out USFWS’ planned listing and critical habitat decisions over the next six years, indicates that USFWS plans to reach a “12-month finding” on the Center for Biological Diversity petition regarding the Cascades frog in fiscal year 2022.

U.S. Fish and Wildlife Service Seeking Comments on Mitigation Policies

The U.S. Fish and Wildlife Service (Service) has requested (pdf) public comment on its revised Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (ESA-CMP). The U.S. Department of the Interior previously noted that the Service would be seeking comments on the two policies when it issued its report entitled “Review of the Department of the Interior Actions that Potentially Burden Domestic Energy” in response to Executive Order 13783. These reviews are the latest step in an effort to identify and remove regulatory impediments to domestic energy production and transmission projects.

We reported previously on earlier revisions to the Mitigation Policy that sought to implement the “net benefit” or “no net loss” to natural resources directives from a 2015 presidential memorandum. We also detailed the issuance of the ESA-CMP in December 2016. The ESA-CMP was the first policy to comprehensively address compensatory mitigation under the ESA.

The stated deadline for submitting comments on the revised Mitigation Policy and the ESA-CMP is January 5, 2018.

Department of the Interior Announces Actions to Expedite Energy Development with Potential Consequences for Listed Species

On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled “Review of the Department of the Interior Actions that Potentially Burden Domestic Energy” identifying agency actions that potentially burden the development or use of domestic energy resources.  This report, generated in response to Executive Order 13783, identifies several “costly and burdensome” regulations that DOI believes hamper the production or transmission of domestic energy.  The report pays particular attention to the oil, natural gas, coal, and nuclear energy sectors, and specifically singles out the Endangered Species Act (ESA) as an impediment to the domestic energy production and transmission sectors.

The DOI report notes that conditions of approval assigned by the Bureau of Land Management for mining or resource extraction leases can be an impediment to domestic energy development, particularly where species surveys are required to comply with the ESA.  Similarly, DOI identifies both the ESA and Marine Mammal Protection Act (MMPA) as hurdles for seismic survey permits issued by the Bureau of Ocean Energy Management, and cites delays caused by awaiting ESA or MMPA authorization as an impediment to surveys that would help determine the size and location of potential energy resources on the ocean floor.

The DOI report identifies the federal consultation requirements under Section 7(a)(2) of the ESA as a burden to domestic energy development, and the DOI report recommends that the U.S. Fish and Wildlife Service (Service) “create efficiencies and streamlining in the consultation process through targeted revision to regulations and/or guidance.”  The report also cites efforts by the Western Governors’ Association to improve the efficacy of the ESA as efforts that DOI intends to build upon, suggesting that DOI will advocate a more state-based approach to species conservation under the ESA.  DOI notes that the Service also anticipates seeking public comment on and possibly revising the regulations that apply to Candidate Conservation Agreements with Assurances (CCAA) in the next three months.  Private parties can develop CCAAs to obtain an Enhancement of Survival permit from the Service for activities that may impact candidate species thereby providing assurances that the activities can continue if the species is listed in the future.  DOI anticipates that revision of the CCAA regulations will simplify the approval process for oil and gas projects.  Likewise, DOI notes that the Service intends to seek public comment on the revised Service Mitigation Policy and ESA Compensatory Mitigation Policy, both of which were finalized in 2016, and may thereafter revise both policies (and associated implementation guidance).  DOI anticipates that the Service will seek public comment on its 2016 mitigation policies within the next three months.  The DOI report also references other federal wildlife laws, such as the Bald & Golden Eagle Protection Act, and the Migratory Bird Treaty Act, as impediments to the development and distribution of domestic energy sources.

Concurrently with the release of DOI report, U.S. Secretary of the Interior Ryan Zinke issued Secretarial Order 3358, which establishes an Executive Committee for Expedited Permitting for energy production and transmission projects.  The establishment of the Executive Committee arises out of several Executive Orders intended to promote the domestic energy sector.

Trump Administration Reconsiders Greater Sage Grouse Plans

It has been a busy October for the greater sage grouse (Centrocercus urophasianus). On October 11, 2017, the Bureau of Land Management (BLM) announced its intention to amend the existing greater sage grouse habitat management plans. The announcement applies to 98 plans across ten states. The Obama Administration finalized the plans in 2015 after ten years of coordination among stakeholders, including tribes, local and state government, environmental organizations, and the regulated community, as previously reported here. The U.S. Fish and Wildlife Service (Service) relied on the plans in reaching a determination that the greater sage grouse did not warrant listing under the Endangered Species Act (ESA). According to the BLM announcement, the comment period for the proposed amendment of the plans closes November 21, 2017. BLM is currently scheduled to hold six public hearings across Idaho, California, Oregon and Colorado at the beginning of November to discuss possible amendments to the plans.

While it is currently unclear whether the public comment period will result in amendments to the plans, any significant changes to the plans could result in renewed petitions from the environmental community to list the greater sage grouse as an endangered or threatened species under the ESA. In fact, environmental interest groups are already taking action. The Western Values Project filed a Freedom of Information Act lawsuit on October 23, 2017 challenging the Department of Interior’s lack of response to its request for correspondence between the Department of the Interior and members of the oil and gas industry related to the greater sage grouse.

On October 11, 2017, BLM also cancelled the proposed withdrawal of 10 million acres of Sagebrush Focal Area lands. These lands were temporarily closed to new mineral entries in September 2015 while BLM prepared an Environmental Impact Statement in connection with the withdrawals. If completed, the withdrawal would have closed those lands to mineral entry for 20 years. Preventing new mining operations on those lands, located in six Western states, was one element of the Obama Administration’s sage grouse management plans. Both the long-term withdrawal and the associated Environmental Impact Statement were abandoned. It is unclear whether or how this move by BLM will play into the possible amendment of the plans and stakeholder discussions of how to manage the sage grouse going forward.

The recent spate of greater sage grouse activity has not been limited to the Department of the Interior. On October 25, 2017, the U.S. House of Representatives Natural Resources Committee will hold a hearing to discuss the BLM plans with an eye toward giving states more control over management of the species. Many Western states have argued that, since the species is not listed, the species should be managed by the states. In January, Committee Chairman Rob Bishop (R-Utah) filed H.R. 527 prohibiting federal plans that do not conform to state-approved sage grouse plans. Senator Jim Risch (R-Idaho) filed S. 273 as a companion bill. Both bills remain in committee. Utah and Idaho previously filed lawsuits challenging the BLM plans.

Hot Topics in Avian Protection

Nossaman LLP’s own Steven P. Quarles and Brooke M. Wahlberg are co-chairing CLE International’s upcoming 2nd Annual MBTA and BGEPA:  Hot Topics in Avian Protection conference.  This timely, in-person CLE will explore the complexities of federal wildlife laws and rules to protect migratory birds and eagles under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).  Speakers will include state and federal policy makers, industry leaders, environmental advocates, and leading practitioners in the field.  Held in Denver, Colorado, from November 30 through December 1, the conference presents a unique opportunity for professionals involved in and affected by endangered species issues, rules, and regulations to learn from in-depth presentations on topics including: Continue Reading

Fish and Wildlife Service Makes 12-Month Findings, Denies ESA Protections for 25 Species

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (“Service”) announced 12-month “not warranted” findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (“ESA”).  It is likely that the Service’s “not warranted” findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing “may be warranted.”  For over half of the 25 species, the “not warranted” findings satisfy the terms of various settlement agreements with environmental organizations requiring the Service to propose listing or to publish 12-month findings by September 30, 2017.  Both settlement agreements requiring these 12-month findings were previously covered here and here.

Specifically, the Service found that listing the following 25 species under the ESA is “not warranted” at this time:

  • Pacific walrus (Odobenus rosmarus ssp. divergens)
  • Northern Rocky Mountains population of the fisher (Pekania pennant)
  • Bicknell’s thrush (Catharus bicknelli)
  • Oregon Cascades-California and Black Hills populations of black-backed woodpecker (Picoides arcticus)
  • Kirtland’s snake (Clonophis kirtlandii)
  • Barbour’s map turtle (Graptemys barbouri)
  • Florida Keys mole skink (Plestiodon egregius egregious)
  • Eastern population of the boreal toad (Anaxyrus boreas boreas)
  • Big Blue Springs cave crayfish (Procambarus horsti)
  • San Felipe gambusia (Gambusia clarkhubbsi)
  • 14 Nevada springsnail species (Pyrgulopsis deacon; Pyrgulopsis fausta; Pyrgulopsis avernalis; Pyrgulopsis carinifera; Trytonia clathrata; Pyrgulopsis coloradensis; Pyrgulopsis hubbsi; Pyrgulopsis merriami; Pyrgulopsis sathos; Pyrgulopsis lata; Pyrgulopsis marcida; Pyrgulopsis breviloba; Pyrgulopsis sublata; Pyrgulopsis peculiaris)
  • Great Sand Dunes tiger beetle (Cicindela theatina)

Two of the petitioned actions (woodpecker and gambusia) were found “not warranted” because the subject animal or plant was determined not to be a listable entity, (i.e., a species, subspecies, or distinct population segment) under the ESA.

The ESA requires the Service to make a determination whether a petition contains substantial scientific or commercial information that the petitioned action “may be warranted” within 90 days of receiving a petition to list a species as endangered or threatened.  Within 12 months after receipt of a petition for which a positive “may be warranted” 90-day determination has been made, the ESA requires the Service to publish a finding whether the petitioned action is “warranted,” “not warranted,” or “warranted but precluded” by other pending listing proposals.

For the 23 species eligible for listing under the ESA, the Service analyzed not just whether the species and its habitat is subject to a particular stressor, but how the species responds to the stressor to determine whether the stressor exerts downward pressure on the population warranting listing.  For example, stressors such as vegetation and soil disturbance from ungulate activity and recreation negatively affect the spring habitat of one Nevada springsnail species, the Spring Mountains pyrg.  However, because springsnail continue to occupy this impacted habitat at similar abundance levels across the species’ range comparable to past survey results, the Service determined that these stressors are not causing significant adverse effects to the species and therefore listing is “not warranted” at this time.

Where the Service was uncertain as to a stressor’s extent or degree of impact on a species, the Service concluded that it did not have reliable information to show that the stressor “could be sufficient to put the species in danger of extinction now or in the foreseeable future.”  For the walrus, the Service found that the lack of reliable information regarding the magnitude of the effect of and the species’ response to a reduction in sea ice availability precluded the Service from making a determination regarding whether a reduction in sea ice “could be sufficient to put the [walrus] in danger of extinction now or in the foreseeable future.”  The Service concluded that sufficient resources remain to meet the walrus’ physical and ecological needs now and into the future, justifying a “not warranted” finding.

Endangered Species Act Reform – Wolves, Dollars, Data

In July we reported on five bills that propose to amend various aspects of the Endangered Species Act:

  • H.R. 2603 – would remove listings of non-native species;
  • H.R. 717 – would modify the process for listing determinations;
  • H.R. 3131 – would require a party to prevail in order to recover attorneys’ fees and place a cap on fees;
  • H.R. 1274 – would require the U.S. Fish and Wildlife Service to make listing determination data available to impacted states; and
  • H.R. 424 – would require the Department of the Interior to reissue final rules relating to the listing of the gray wolf in the Western Great Lakes and Wyoming.

On Wednesday, October 4, 2017, the House Committee on Natural Resources passed each bill by a roll call vote.  Given the Republican majority in the House, the Committee’s action was not unexpected.  However, Committee approval is not the last step in the process, and the Democrats have a history of successfully blocking any type of Endangered Species Act reform that they consider objectionable.  Should Congress adopt amendments to the Endangered Species Act, it will mark the first amendments to the Endangered Species Act in thirteen years, and, depending on the revisions adopted, potentially the first revisions to the listing process since 1988.  Stay tuned as we continue to monitor the process.

Fish and Wildlife Service Proposes Denial of ESA Protections for Two Species

On Friday, September 29, 2017, the U.S. Fish & Wildlife Service (“Service”) announced its withdrawal of the proposed rule listing the Kenk’s amphipod (Stygobromus kenki), an aquatic crustacean, as an endangered species under the Endangered Species Act (“ESA”).  The Service originally proposed to list the amphipod, which occurs in the District of Columbia, Virginia, and Maryland, in September 2016 due to the impacts of water quality, water quantity, and other collateral impacts of urbanization near the species’ habitat.  In support of its decision to withdraw the proposed listing the Service documents the discovery of additional populations and increased protections afforded the species under the Fort A.P. Hill Integrated Natural Resources Management Plan.

The Service also published a proposed rule to remove the Deseret milkvetch (Astragalus desereticus) from the list of endangered and threatened plants on Monday, October 2, 2017.  The milkvetch, a plant species native to Utah, was listed as threatened in 1999.  The Service’s proposal to delist the milkvetch is based on a substantial increase in the population and new protections for the species since the 1999 listing.  Based on new surveys, population estimates have increased nearly 20-fold – even though the species only occurs in a single known population on approximately 300 acres of land in central Utah.  A Conservation Agreement, signed in 2006 between the State of Utah and the Service, reduces the threats to the species by providing for ongoing management on the majority of milkvetch occupied habitat.

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