Do Freshwater Mussels Deserve ESA Protection?

On August 10, 2018, the representative from Indiana’s 4th Congressional District introduced a bill entitled: “To amend the Endangered Species Act of 1973 to remove freshwater mussels from the list of endangered and threatened species.”  While the text of the bill isn’t yet available, based on the title of the bill one can reasonably surmise that the author of the bill believes that freshwater mussels are not deserving of Endangered Species Act protection.  Further, this interpretation is supported by recent articles detailing the representative’s long-running opposition to freshwater mussel protection.  For example, one recent article implies that the bill’s author believes that prior actions taken under the Endangered Species Act have damaged the community he represents, and that when weighing the interests of his community against freshwater mussels, the scales tip decidedly against Endangered Species Act protection for freshwater mussels.  (See, e.g., Greenwire Story entitled “House Republican bill would strip protection for mussels” dated August 13, 2018.)  While bills like this often fail to make it to a full floor vote, stay tuned as we will continue to follow the bill’s progression or lack thereof.

New Faces and Departures at the Department of the Interior and U.S. Fish and Wildlife Service

This week, the media has reported two changes in key roles at the Department of the Interior (“DOI”) and U.S. Fish and Wildlife Service (“USFWS”).  Greg Sheehan has reportedly left his role as Principal Deputy Director of USFWS.  Sheehan had held the role since appointed by DOI Secretary Zinke in June 2017.  As the Trump administration has not yet filled the role of Director of the USFWS, Sheehan had been the top official within USFWS.  Sheehan is expected to leave his role next week.

The media also reported this week that Andrea Travnicek has been named as Acting Assistant Secretary for Fish, Wildlife, and Parks, overseeing USFWS and the National Park Service.  Prior to this new role, Travnicek had been serving as Principal Deputy Assistant Secretary for Water and Science for DOI.  She replaces Trump appointee Susan Combs, who will now serve as Acting Assistant Secretary for Policy, Management, and Budget.  Combs had been serving as Acting Assistant Secretary for Fish, Wildlife, and Parks since late March while awaiting confirmation of her role as Assistant Secretary for Policy, Management, and Budget.


Agencies and Lawmakers Seek ESA Reform

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (“ESA”) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA.  The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into “cooperative agreements” for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills include H.R. 6346, introduced by Rep. Mike Johnson (R-LA), which would require federal agencies to consider current and proposed conservation measures elsewhere when analyzing a project that may jeopardize the continued existence of an endangered or threatened species.

The legislative package, which was introduced between July 12 and July 20, 2018, would accomplish numerous longstanding Republican goals for amending the ESA, including making it easier for the government to remove species from the list of endangered or threatened species and preventing non-governmental organizations from suing to try to obtain ESA protection for species.

As we reported here, the package comes less than two weeks after Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, introduced a comprehensive measure also intended to overhaul the ESA.

In addition, on July 19, 2018, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (together, the “Services”) proposed revisions to the regulations that implement portions of the ESA. Key aspects of the Services’ proposal involve changes to section 4 and section 7 of the ESA, as set forth below.  Revisions to the “blanket 4(d) rule” are proposed only by FWS, while revisions to the processes governing listing, delisting, and designation of critical habitat, and interagency consultation are proposed jointly by the Services.

Section 7—Consultation

  • Procedures for an “alternative” consultation mechanism, which includes programmatic consultations.
  • New procedures regarding incidental take permits intended to streamline the Services’ development of biological opinions.
  • Procedures that allow for “expedited consultation” where actions have minimal adverse or predictable effects, based on the Services’ experience in previous consultations.

Section 4—Listing, delisting, and designation of critical habitat

  • Codifying the definition of “foreseeable future” with respect to listing decisions, such that it extends only so far as the Services can reasonably determine that conditions posing danger of extinction are probable.
  • Codifying the fact that standards for listing and delisting are the same. Specifically, the Services propose to clarify that the standard for removing a species from the list of threatened and endangered species is not heightened.
  • Removing “listing in error” from the reasons the Services may delist a species.
  • With respect to critical habitat, clarifying that the Services will only designate unoccupied areas as critical habitat when occupied areas are inadequate to ensure recovery, or under certain other circumstances, such as where including unoccupied habitat would minimize societal conflict.

Section 4(d)—Blanket prohibition on “take”

  • Rescission of the blanket section 4(d) rule. This change will not apply retroactively. Species already listed as threatened will continue to be subject to the existing blanket prohibition on take.
  • FWS seeks specific feedback concerning whether FWS should include binding language in its final regulations that would require FWS to propose a special 4(d) rule concurrent with listing a species as threatened. FWS also seeks feedback regarding whether it should establish a timeframe in which FWS must finalize any such special rule after a listing or reclassification.

The proposed rules, available at the links below, will be published in the Federal Register on July 25, 2018. The Services have indicated that they will receive public comments regarding the proposed rules through September 24, 2018.

Revision to regulations for listing species and designating critical habitat

Revision to regulations governing prohibitions to threatened wildlife and plants

Revision to regulations governing section 7 consultations


Proponents of Dam Removal Project Seek to Skirt Protections for Endangered Species

The Klamath River Renewal Corporation (the “corporation”) recently submitted a plan for the removal of four dams on the lower Klamath River to the Federal Energy Regulation Commission (FERC). In it, the corporation indicates its intent to sidestep compliance with the California Endangered Species Act and California’s Lake and Streambed Alteration Program by asking FERC to opine that those state law requirements are preempted by federal law. Among other things, these laws protect the critically endangered Lost River sucker (Deltistes luxatus) and shortnose sucker (Chasmistes brevirostris).

At the same time, as we previously reported, there is a bill (Assembly Bill 2640) moving through the California legislature to waive the protections afforded to the Lost River sucker and shortnose sucker by the fully protected species laws. Because the federal and state agencies entrusted to administer laws to protect the sucker species are vocal proponents for dam removal, those traditional advocates for endangered species may be unlikely to provide an honest appraisal of the harmful effects of dam removal. As a consequence, all eyes will be on FERC to determine whether it will demand an honest appraisal and instruct the corporation to comply with state law requirements.

Court Rejects Challenge to New Mexico Cougar Trapping Regulations

Closeup of a Mexican gray wolf (Canis lupus)

The U.S. District Court for the District of New Mexico granted New Mexico’s motion for summary judgment in a case brought by the Humane Society seeking to invalidate State trapping regulations related to cougars (Puma concolor).  Plaintiffs argued that the regulations, which amended existing regulations that authorize trapping of cougars, violate the Endangered Species Act’s prohibition on take of protected species.  Plaintiffs reasoned that the amended regulations would inevitably cause the take of listed Mexican wolves (Canis lupus baileyi) since cougars and wolves co-occur.  But the Court rejected the challenge, affirming that the cougar trapping regulations are lawful.

The court noted that the challenged regulations have been in effect for two full trapping seasons, and there is not a single record that a Mexican wolf has ever been caught in a trap set for cougars in New Mexico.  The court then explained that “the fact that no wolf has been caught in a cougar trap since the Cougar Rule has been in effect is strong evidence, even if it is not dispositive, that the rule is not causing take of the Mexican gray wolf, by any definition of the word ‘take’ under the ESA statute.”

Nossaman represented State Defendants in the case.

What Might Justice Kavanaugh Mean for the ESA?

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (“ESA”).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (“Service”) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as “occupied” habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was “occupied” habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation “is not the same as an authorization to act without data to support its conclusions.” 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA. Continue Reading

Senator Barrasso Continues Efforts to Modernize the Endangered Species Act

The most comprehensive Endangered Species Act (“ESA”) bill of this Congressional session made its debut on July 2, 2018 when Senator John Barrasso (R-Wyo.), Chairman of the Senate Environment and Public Works (“EPW”) Committee, released a discussion draft of a bill proposing sweeping revisions to the ESA.  The discussion draft is a culmination of activity that began February 15, 2017, when the EPW committee held an oversight hearing on modernization of the ESA. Following that hearing, Senator Barrasso worked closely with the Western Governors’ Association (“WGA”) in drafting the discussion draft bill.  In keeping with WGA’s push for more state involvement in endangered species conservation decisions, the draft bill increases the role of state governments in implementing the ESA.  Barrasso plans to hold a hearing on the discussion draft in the coming weeks.

The discussion draft includes numerous ESA amendments, a few of which are summarized below:

  • “Best scientific and commercial data available:” The draft bill provides a definition for the best scientific and commercial data available and a policy relating to how it may be used in ESA decision-making.
  • Species recovery: The draft bill includes the concept of “recovery teams” that may be formed at the request of an affected state at the time a species is listed. The proposal states that recovery team members are to be appointed by the Secretary of the Interior and would include representatives of federal, state, and local agencies, and scientific experts with respect to the species at issue.  The proposal would allow recovery teams to modify a recovery goal, habitat objective, or other criterion established for a species by a unanimous vote, provided that the Department of Interior approves of the change.  Where there is no recovery team for a listed species, under the proposed amendments, an eligible state agency could develop a species recovery plan in consultation with all other impacted states.  Eligible states would also be allowed to implement recovery plans.
  • Listings: The draft bill codifies U.S. Fish and Wildlife Service’s National Listing Workplan (“Workplan”) and requires that the Workplan be included in the annual budget request to Congress.  The draft bill would also impose  prioritization and timing requirements for species included in the Workplan.
  • Delistings: The draft bill would prohibit judicial review of species delisting/downlisting decisions until the expiration of a 5-year monitoring period following delisting/downlisting decision.
  • States feedback: The draft bill includes an annual solicitation of feedback from each state regarding U.S. Fish and Wildlife Service’s performance, including performance of individual Service employees.
  • Citizen suits: The draft bill requires inclusion of impacted states (including each unit of local government) in citizen suit settlement negotiations and agreements.  The draft bill also favors third parties intervening in citizen suits, by creating a rebuttable presumption that third parties should be allowed to intervene.  It would also permit intervening third parties to participate in settlement discussions.  The draft bill would require public disclosure of any plaintiffs’ attorneys’ fees paid by the government.
  • Voluntary conservation efforts: The draft bill contains provisions that would expand the role of and expedite approvals of voluntary conservation efforts, including Candidate Conservation Agreements with Assurances and Safe Harbor Agreements.


U.S. House Passes Bill Allowing Removal of Sea Lions to Protect Endangered Fish Species

The U.S. House of Representatives recently passed the “Endangered Salmon and Fisheries Predation Prevention Act” (Act) (H.R. 2083), co-sponsored by Rep. Jaime Herrera Beutler (R-WA) and Rep. Kurt Schrader (D-OR), allowing for the lethal removal of California and Steller sea lions (Zalophus californianus and Eumetopias jubatus) to protect endangered salmon (populations of Oncorhynchus nerka, Oncorhynchus kisutch, Oncorhynchus tshawytscha, and Salmo salar), steelhead (Oncorhynchus mykiss), and other native fish species.  The Act provides tribal members and government fishery managers with the means to remove protected sea lions from specific areas where they pose the most harm to endangered fish species.

California and Steller sea lions are protected under the U.S. Marine Mammal Protection Act of 1972 (MMPA).  The Act would ease the protections afforded to both species of sea lion under the MMPA, allowing the lethal removal of up to 100 sea lions per permit.  It also streamlines the process for obtaining permits to euthanize the sea lions.

According to the National Oceanic and Atmospheric Administration, California sea lions killed the largest proportion of Chinook salmon and steelhead in 2017 than in any year since 2011.  The Oregon Department of Fish and Wildlife estimates that, at the current rate, the Willamette Winter Steelhead run faces a 90 percent chance of extinction if nothing changes.

The legislation passed with a vote of 288-116.  The Senate must still take action on a companion bill co-sponsored by Sen. Jim Risch (R-ID) and Sen. Maria Cantwell (D-WA).

U.S. Fish & Wildlife Service Announces Initiation of 5-Year Status Review for 50 Species

On Monday, June 18, 2018, the U.S. Fish and Wildlife Service (“FWS”) announced that it has initiated five year status reviews for fifty species in California, Nevada, and the Klamath Basin of Oregon, pursuant to the Endangered Species Act (“ESA”).  Included among the species whose ESA listing status is being reviewed are 19 animal species, four of which are currently listed as threatened, while the remaining 14 are currently listed as endangered.  Additionally, the FWS is reviewing thirty-one plant species.

As part of its review, FWS will be accepting new information pertinent to the status of the following animal species:

Species Current Status
Lange’s metalmark butterfly (Apodemia mormo langei) Endangered
Smith’s blue butterfly (Euphilotes enoptes smithi) Endangered
Yellow-billed cuckoo (Coccyzus americanus) Threatened (Western Distinct Population Segment)
California red-legged frog (Rana draytonii) Threatened
Mountain yellow-legged frog (Rana mucosa) Endangered
Tidewater goby (Eucyclogobius newberryi) Endangered
Stephens’ kangaroo rat (Dipodomys stephensi (incl. D. cascus) Endangered
Point Arena mountain beaver (Aplondontia rufa nigra) Endangered
Pacific pocket mouse (Perognathus longimembris pacificus) Endangered
Western snowy plover (Charadrius alexandrinus nivosus) Threatened (Pacific Coast Population Distinct Population Segment)
Pahrump poolfish (Empetrichthys latos) Endangered
California clapper rail (Rallus longirostris obsoletus) Endangered
Sierra Nevada bighorn sheep (Ovis canadensis sierrae) Endangered
Laguna Mountains skipper (Pyrgus rurales lagunae) Endangered
Morro shoulderband snail (Helminthoglypta walkeriana) Endangered
Lost River sucker (Deltistes luxatus) Endangered
Shortnose sucker (Chasmistes brevirostris) Endangered
California least tern (Sterna antillarum browni) Endangered
Inyo California towhee (Pipilo crissalis eremophilus) Threatened


With respect to the yellow-billed cuckoo, mountain yellow-legged frog, and western snowy plover, FWS’s announcement notes that each was originally listed as a distinct population segment (“DPS”).  FWS’s announcement also states that FWS will apply its Policy Regarding the Recognition of DPS’s in considering whether to reclassify or remove any of the DPS’s from the List of Endangered and Threatened Species.  In its announcement of this five-year status review, FWS states that it will accept information on any of the above species, or the additional plant species, for consideration in its review until August 17, 2018.