California Fires Impact People, Pets, and Wildlife

The recent California wildfires have been devastating.  But it is during such times of devastation that we also get to see the good in people.  We see communities coming together, and support from around the State.  As reported by a number of news agencies, that support has extended to not just people, but also pets.  There are stories with pictures of police officers corralling pot belly pigs, horses being guided through smoke and flames, and dogs and cats being rescued by a variety of organizations.  However, it isn’t just people and pets who called these places home.  Wildlife can also be severely impacted by wildfires.  For example, in 2003 wildfires that raged in southern California destroyed habitat for the coastal California gnatcatcher (Polioptila californica californica), least Bell’s vireo (Vireo bellii pusillus), the southern California mountain yellow-legged frog (Rana muscosa), and the Quino checkerspot butterfly (Euphydryas editha quino), all of which are listed under the federal Endangered Species Act.  For the benefit of people, their pets, and the surrounding wildlife, we hope that our brave firefighters are able to extinguish these fires as quickly as possible.

Federal Court Finds That U.S. Fish and Wildlife Service’s Management of Reintroduced Red Wolves Violated Endangered Species Act

On November 4, 2018, the U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of conservation organizations Red Wolf Coalition, Defenders of Wildlife, and Animal Welfare Institute in a case challenging the U.S. Fish and Wildlife Service’s (FWS) administration of the recovery program for endangered red wolves (Canis rufus).

FWS began reintroducing red wolves in North Carolina in 1987.  Red wolves were designated as a non-essential experimental population under section 10(j) of the Endangered Species Act (ESA).  As such, FWS may only reintroduce red wolves into the Red Wolf Recovery Area, which encompasses 1.7 million acres of federal, state, and private lands.  FWS has promulgated regulations (the red wolf rule) prohibiting the take of red wolves in the recovery area unless in defense of a person’s life; the animal is in the act of killing livestock or pets; or the take has been authorized by FWS project personnel “after efforts by project personnel to capture such animals have been abandoned.”

The plaintiffs alleged that FWS violated ESA section 9 by authorizing take of red wolves by private landowners without satisfying the requirements of the red wolf rule; that FWS violated ESA section 4 by administering the red wolf rule in a manner that failed to provide for the conservation of red wolves and by failing to conduct the mandatory five-year status review of the species; and that FWS violated ESA section 7 by failing to administer the red wolf recovery program in furtherance of the conservation purposes of the ESA and by failing to ensure that their administration of the program is not likely to jeopardize the red wolf’s continued existence.  The lawsuit also alleged that FWS’ administration of the program violated the National Environmental Policy Act (NEPA).

The court held that the claim regarding FWS’ failure to conduct a mandatory five-year review was prudentially moot, because FWS completed a five-year review in early 2018.  But the court granted summary judgment for the plaintiffs on all of the remaining claims.  It enjoined FWS from taking red wolves without first demonstrating that such red wolves are a threat to human safety or the safety of livestock or pets, and declared that FWS’ administration of the program violated the ESA and NEPA.

The court emphasized that FWS is required to comply with its conservation mandate despite the substantial challenges presented by interactions between reintroduced red wolves and humans.

Specifically, the court found that the red wolf rule requires FWS to actually abandon efforts to capture specific red wolves before issuing a take authorization.  The take authorizations challenged in the lawsuit, which were issued without confirming the presence of specific red wolves on the subject property and because the landowners had failed to give FWS trapping access, failed to satisfy these requirements.  The court explained:

Abandonment of USFWS efforts based on a landowner’s refusal to grant USFWS access to their property cannot serve as a proper basis for issuing a lethal take authorization under [the red wolf rule], as doing so would impermissibly tip the scales in favor of public demand and away from USFWS’s congressionally mandated goal to recover and rehabilitate the red wolf in the wild.

The court additionally noted that FWS had apparently discontinued successful management strategies (e.g., wolf introductions, strict limits on take authorizations) in response to mounting public pressure against red wolf recovery efforts.  These changes coincided with a “drastic decrease” in the red wolf population, and therefore violated ESA sections 4 and 7.  The court rejected FWS’ argument that these changes were within its discretion:

Allowing the red wolf population to decline, while having access to methodologies which were previously successful in increasing or maintaining the wild population of the species, is an interpretation of the red wolf rule that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Finally, the court held that FWS was required to comply with NEPA because its decision to cease wolf introductions while increasing the likelihood of authorized lethal takes by landowners may adversely affect red wolves.

U.S. Supreme Court Passes on Otter Case with Chevron Implications

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (“Combs”), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (“Service”).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is reasonable.

Combs arose from a dispute over the Service’s decision to shutter its endangered sea otter translocation program in California.  Fishing groups had sued the Service and lost in the Ninth Circuit, which upheld the Service’s decision as a reasonable interpretation of the Marine Mammal Protection Act.  The petitioners in Combs then took the fight to the Supreme Court, arguing the Ninth Circuit had expanded Chevron deference and asking the Court to consider whether an agency is entitled to deference under Chevron when a statute is silent on potential agency action, neither authorizing nor forbidding it.

While some commentators have argued that it is only a matter of time before the Court takes up a case to clarify Chevron deference, Combs will not be that case.  The case failed to garner the support of four Justices, which is necessary for the Court to grant a petition for certiorari.

Ninth Circuit Dismisses Challenge to Policy Regarding ESA Criminal Prosecutions

In WildEarth Guardians et al. v. U.S. Department of Justice, Case Nos. 17-16677, 17-16678, 17-16679 (Oct. 23, 2018), the U.S. Court of Appeals for the Ninth Circuit dismissed plaintiff-appellees case challenging the U.S. Department of Justice’s McKittrick policy.  In reversing the lower court, the Ninth Circuit concluded that plaintiff-appellees lack standing to pursue the case. 

The McKittrick policy directs Department of Justice attorneys who prosecute Endangered Species Act (ESA) cases to request jury instructions that prove beyond a reasonable doubt that a defendant knew the biological identity of the animal taken. In other words, the policy requires a demonstration both that taking of an ESA-protected animal occurred and that the person who exacted the taking knew he or she was taking a protected animal. Importantly, the heightened standard of proof applies only in the context of criminal prosecution under the ESA; civil enforcement of the ESA’s take prohibition is based on strict liability.

Plaintiff-appellees based their standing on the claims that (1) the McKittrick policy decreases the deterrent effect of the ESA’s take prohibition, (2) absent the policy there would be additional prosecutions for take of Mexican wolves (Canis lupus baileyi), and (3) those prosecutions would deter persons from engaging in activity that leads to take, which would decrease the take of Mexican wolves. In rejecting this logic chain, the Ninth Circuit held “WildEarth’s conclusion necessarily rests upon several layers of speculation.”  This includes speculation about the enforcement priorities of both the U.S. Fish and Wildlife Service and the Department of Justice, as well as the behavior of members of the public.  It is unlikely plaintiff-appellees will seek further review of the case.​


Citing Concerns for Endangered Vaquita, Court Declines to Lift Ban on Import of Some Seafood

On October 22, 2018, the U.S. Court of International Trade denied the request of various federal agencies to stay an injunction banning the import of Mexican seafood caught with gill nets in the Gulf of California.  The injunction, granted in July, is intended to protect the endangered vaquita porpoise (Phocoena sinus), which can get tangled in commercial fishing gill nets.  The injunction required the United States Department of Commerce, National Marine Fisheries Service, United States Department of the Treasury, United States Department of Homeland Defense, and various individuals acting in their official capacity, pursuant to the Marine Mammal Protection Act, to ban the importation of commercial fish and fish products caught with technology that results in incidental killing or injury of ocean mammals in excess of United States standards.  More specifically, the ban prohibits import of fish and fish products from Mexican commercial fisheries using gill nets in the vaquita’s range in the Upper Gulf of California.  It is believed that very few vaquita remain in the wild.  In requesting the stay, the U.S. government alleged that it had suffered “ongoing serious harm” as a result of the injunction.  The court, however, concluded that the government had not met its burden for a stay.


Petition Filed to List Bumble Bee as Endangered Under the California ESA

On October 16, 2018, the Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and the Center for Food Safety submitted a petition to the California Fish and Game Commission (Commission) to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckely cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered under the California Endangered Species Act.  The Commission is required under the California Fish and Game Code to refer the petition to the California Department of Fish and Wildlife for a recommendation to the Commission regarding the petition’s merits.

Supreme Court Hears Oral Argument in Dusky Gopher Frog Case

On October 1, 2018, the U.S. Supreme Court heard oral argument in the first case of its new term, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71. The case concerns the designation of critical habitat under the Endangered Species Act (ESA) for the dusky gopher frog (Rana sevosa) in an area that is not currently capable of sustaining a frog population. The central issue in the appeal is whether an area that currently does not possess some of the characteristics deemed essential for the frog’s survival may nevertheless be designated as unoccupied “critical habitat” for the species. The Court of Appeals for the Fifth Circuit previously affirmed a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated as critical habitat an area that is within the frog’s historic range but long ago was converted to densely planted commercial timberland that bears no resemblance to the open-canopied woodlands essential to the dusky gopher frog’s habitat.

The parties framed two central issues for the Court: (1) Weyerhaeuser argued that an area cannot be “critical habitat” for a species if it is not currently habitable by that species; (2) the Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

The justices’ questioning reflected the known divisions in the Court. Justice Kagan was first to speak, asking Weyerhaeuser’s counsel whether the company’s insistence that an area be currently habitable was consistent with the ESA’s focus on conservation of listed species. She framed the facts as presenting the Service with a choice between letting a species go extinct and designating an area that, while it cannot currently sustain the frog, could be made habitable through reasonable efforts and is necessary for the recovery of the species. Justice Alito followed with questions that allowed Weyerhaeuser’s counsel to identify other tools the ESA offers to avoid a species’ extinction, beyond designation of critical habitat, such as facilitating habitat acquisition.

Justice Sotomayor’s questioning picked up on factual arguments that the Service had advanced in its briefing, suggesting that the habitat in an area need not be optimal for a species to survive there and pointing out that the frog had been seen on the parcel in question in the 1960s, after active timber management had begun. The suggestion by the Service, echoed by Justice Sotomayor, was that the site in question might be habitable by the frog today, despite the absence of forest characteristics deemed to be primary elements of the frog’s habitat.

Justice Breyer, a potential swing vote in the case, framed the dispute as a typical agency case. He said the ESA directs the Secretary of the Interior to exercise discretion in designating critical habitat. It is common for statutes to grant this sort of discretion. The question is whether the Secretary properly exercised that discretion; whether the Secretary’s decision was reasonable. Breyer pressed Weyerhaeuser’s counsel on whether that was the right way to look at the case. When the lawyer responded that the Service was wrong and restoration here would require extreme efforts, Breyer retorted that he was not disagreeing with the framework Breyer had described, just with how Breyer read the record.

In line with Justice Breyer’s focus on the disputed designation as an exercise of agency discretion, the central focus of most of the questioning was the Service’s assertion that an area may be designated critical habitat if it may be capable of sustaining a species after it is modified through “reasonable efforts.” Chief Justice Roberts asked the Service’s counsel whether a pond in Alaska could be designated as critical habitat for the frog if a big greenhouse could be built next to the pond to provide for the forest elements of the frog’s habitat. While the Service’s counsel agreed that the Alaska pond could not be critical habitat, as it would be maintained through artificial means, Justice Breyer followed up with questions that probed the limits of the agency’s discretion.

Breyer asked the Service’s counsel where to draw the line between a site that Chief Justice Roberts described, which needs a greenhouse to support the animal, and habitat that can be used now. He did not get a direct response; the Service’s counsel said, in essence, it depends on the facts for each species. But several of the justices were dissatisfied with that response.

Justices Gorsuch, Alito, Roberts and Breyer all returned repeatedly to the question of whether the ESA provides direction or guidance as to the limits of what may be considered “reasonable efforts.” The Service’s counsel offered a distinction concerning areas that were previously habitat for an animal, differentiating between an area that was subsequently modified versus habitat that has been destroyed. He suggested that forest that has been converted to commercial timberland has been modified but its current use remains similar to the habitat conditions needed to sustain the frog, while habitat would be destroyed by being converted to a shopping center and would not be feasible to restore.  Several justices questioned whether there was any support for that distinction in the statute.

The arguments presented the justices with two alternative readings of the ESA: a bright line that would prohibit designating an area as critical habitat if it is not currently habitable; and a grant of discretion to the Service to extend critical habitat to areas that could be made habitable through reasonable efforts. As the Court currently has only eight justices, and only those justices who attend oral argument vote on the outcome of an appeal, an even split is a distinct possibility. If that occurs, the Court could choose to have the case reargued after a ninth justice is confirmed, or with a tie vote could allow the Fifth Circuit’s decision to stand. But even if the Court issues a split decision, opinions in the case are likely to include important discussions of critical habitat concepts that will have repercussions for ESA cases nationwide.

It is likely to be several months before the Court issues its decision in this case. Please check back with us to see how the Court rules on this first case of its new term.

Endangered Species Act Litigation Round-Up

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

  • In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of how that action would affect other protected grizzly bear populations in the lower 48 states.  The court held that, in failing to do so, the Service “entirely failed to consider an important aspect of the problem.”  The court also held that the Service acted arbitrarily and capriciously in dropping a key commitment for monitoring threats to the Greater Yellowstone grizzly, asserting that by doing so the Service negotiated away its obligation to apply the best available science.  The court stated that it dropped the commitment in order to reach consensus for planned grizzly bear protections with the states of Wyoming, Idaho, and Montana.  The court’s decision restores ESA protections for the Greater Yellowstone DPS.
  • In Colorado v. U.S. Fish and Wildlife Service, 15-cv-00286-CMA-STV, the U.S. District Court for the District of Colorado held (pdf) that the Service complied with federal law when it listed the Gunnison sage grouse (Centrocercus minimus) as threatened under the ESA four years ago. Plaintiffs, including the states of Colorado and Utah, argued that the Service violated the Administrative Procedure Act (APA) by not allowing for public comment on a key population analysis that the Service relied on for its decision to list the species.  The court disagreed with plaintiffs that this was reversible error, stating that the study supplemented previously existing data (i.e., logically outgrew from it), was not the critical basis on which the Service relied to reach its ultimate determination, and plaintiffs were not prejudiced from the non-disclosure.  The court also upheld the Service’s concurrent designation of 1.4 million acres of critical habitat for the Gunnison sage grouse.
  • The United States Supreme Court recently heard argument in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which involves the Service’s designation of critical habitat for the dusky gopher frog (Lithobates sevosus). Weyerhaeuser Co. challenged the Service’s designation of 1,500 acres of private land in its critical habitat designation, despite the fact that the species does not currently reside in the designated habitat.  Moreover, there is a dispute regarding whether the private land must be modified to support the species.  Argument focused on the limit of the Service’s authority to designate critical habitat in light of the remote connection of the species to the private property at issue.  The U.S. Circuit Court of Appeals for the Fifth Circuit has ruled that the Service’s interpretation of “habitat” to include the 1,500 acres warrants deference.  Due to Justice Kennedy’s retirement from the Court, the decision could result in a 4-4 split, which would result in upholding the Fifth Circuit’s ruling in favor of the Service’s designation.

Proposed ESA Regulatory Revisions Spark Last Minute Comment Flurry

As we reported here, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (together, the “Services”) recently proposed revisions to the regulations that implement portions of the Endangered Species Act (“ESA”). The submission deadline for comments was September 24, 2018.  If enacted, the Services assert that the proposed revisions would, among other things, streamline ESA consultations with other federal agencies and clarify the jeopardy standard.

The proposed revisions sparked a flurry of last minute comment submissions from environmental groups, who reportedly filed an additional 500,000 comments before the submission deadline. Many of these comments were standardized in form and content, and included the same phrase in opposition to the proposed revisions.

However, the volume of comments does not necessarily impact the outcome of the regulatory amendment process. Whether the Services make further changes to the proposed ESA revisions in response to the more than 800,000 comments submitted remains to be seen, so please check back with us for further updates.