New Executive Order Heralds Reorientation of State’s Species Protection and Water Management Policies

On April 29, 2019, Governor Newsom issued Executive Order N-10-19 (EO) directing the California Natural Resources Agency, the California Environmental Protection Agency, the California Department of Food and Agriculture, in consultation with the Department of Finance (collectively, the “agencies”), to prepare a 21st century water resilience portfolio to meet the needs of California’s communities, economy and environment in the face of water supply uncertainty, climate change and the state’s growing population.  The EO’s sweeping directive requires the agencies to reassess the 2016 California Water Action Plan priorities and develop regionally- and resource- integrated solutions to achieve the Executive’s goals.

Among other programmatic developments, the EO formally sets in motion the redirection of the State’s policies and actions relating to the protection of the Delta smelt (Hypomesus transpacificus) and other special status species.  In particular, the EO directs state agencies to assess the modernization of the Bay Delta water conveyance system with a single tunnel, rather than the previously proposed twin tunnel system.  In the days following the issuance of the EO, the California Department of Water Resources withdrew its approvals related to the twin tunnel system in order to commence environmental review and planning for the smaller conveyance system ordered by Governor Newsom.

Fish and Wildlife Service Moves to Downlist the American Burying Beetle as Threatened, Proposes 4(d) Rule

On May 3, 2019, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (“ESA”) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year lifespan. The species is known to occur in nine states ranging from South Dakota to Texas to Rhode Island. Historically, it is believed that the species was present in at least 35 states.  In making its determination that reclassification is appropriate the Service noted that “[a]t the time of listing, only two highly disjunct populations of a formerly widespread species were known to be extant, one in New England and one in eastern Oklahoma.”  The Service went on to state “[w]e now know there are more populations over a much wider area relative to the time of listing.”

The Service’s proposed 4(d) rule to accompany the proposed reclassification would prohibit all intentional take of the species occurring within suitable habitat. Beyond that, the rule would be tailored to prohibit incidental take in each of the three “analysis areas” (geographic areas that the American burying beetle is known to occupy).  In two of those areas (New England and the Northern Plains), incidental take would only be prohibited in suitable habitat when the take is the result of soil disturbance including actions such as grading, filling, soil excavating or topsoil stripping. Soil disturbance would also include application of pesticides that make habitat unsuitable. In the Southern Plains analysis area, take would only be prohibited on so-called “conservation lands,” which are defined by the proposed rule as lands included within the existing boundaries of Fort Chaffee in Arkansas, and McAlester Army Ammunition Plant, Camp Gruber and Cherokee Wildlife Management Areas, and the Nature Conservancy Tall Grass Prairie Preserve in Oklahoma. Where take occurs on conservation lands in compliance with a Service-approved incidental take permit, such take would not be prohibited under the proposed rule.

The proposed rule was issued under the terms of a stipulated order between American Stewards of Liberty, the Independent Petroleum Association of America, and the Osage Producers Association, as plaintiffs, and Federal Defendants, including the Service.  The stipulated order resolved a lawsuit brought by plaintiffs in the United States District Court for the Eastern District of Oklahoma.  Nossaman represented plaintiffs in the lawsuit.

Environmental Groups’ NEPA Challenge to USDA Wolf Killing Survives

On April 23, 2019, the U.S. Court of Appeals for the Ninth Circuit found that environmental groups have standing to challenge the federal government’s killing of gray wolves in Idaho without conducting additional analysis under the National Environmental Policy Act (“NEPA”). Western Watersheds Project et al. v. Grimm, No. 18-35075 (9th Cir. 2019).

Environmental groups brought an action against the U.S. Department of Agriculture Wildlife Services (“Wildlife Services”), alleging that NEPA requires Wildlife Services to prepare an Environmental Impact Statement and supplement its 2011 Environmental Assessment for the agency’s killing of Northern Rocky Mountain gray wolves (Canis lupus irremotus) in Idaho. The wolves were delisted under the Endangered Species Act in 2011, returning wolf management to state control. Since then, Wildlife Services has supported the Idaho Department of Fish and Game’s (“IDFG”) wolf management actions through non-lethal and lethal management strategies, such as aerial shooting operations, to protect livestock and ungulates.

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Endangered Species Act Spring Round Up

Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (“Service”) has made a few other moves related to the Endangered Species Act (“ESA”).

On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species.  Specifically, the Service added the following species to the ESA List: Gulf grouper (Mycteroperca jordani), Island grouper (Mycteroperca fusca), Common guitarfish (Rhinobatos rhinobatos), Blackchin guitarfish (Rhinobatos cernciculus), Daggernose shark (Isogomphodon oxyrhynchus), Brazilian guitarfish (Rhinobatos horkelii), Striped smoothhound shark  (Mustelus fasciatus), Maui dolphin (Cephalorhynchus hectori maui), Hector’s dolphin (Cephalorhynchus hectori hectori), Giant manta ray (Manta birostris), Oceanic whitetip shark (Carcharhinus longimanus), Taiwanese humpback dolphin (Sousa chinensis taiwanensis), narrownose smoothhound shark (Mustelus schmitti), spiny angelshark (Squatina guggenheim), Argentine angelshark (Squantina argentina), and Chambered nautilius (Natilus pompilius).  The Service also removed the Puget Sound-Georgia Basin Distinct Population Segment (“DPS”) of Canary rockfish (Sebastes pinniger) from the list, and updated the list entries to add critical habitat citations for the following species: Gulf of Maine DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), New York Bight DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), South Atlantic DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Cheasapeake Bay DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Carolina DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Main Hawaiian Islands Insular DPS of False killer whales (Pseudorca crassidens), Saimaa subspecies of rigned seal (Phoca hispida saimensis).  Finally, the Service made minor corrections to the list entries for the following species: Three foreign coral species (Cantharellus naumeae; Sierastea glynni; Tubastraea floreana), Dusky sea snake (Aipysurus fuscus), Banggai cardinalfish (Pterapogon kaudemi), the Tansanian DPS of African coelacanth (Latimeria chalumnae), Nassau grouper (Epinephelus striatus), and three angelshark species (Squatina aculeata; Squatina oculata; Squatina squatina).  The nonsubstantive corrections consisted of adding the citation to the final listing rule for each of the 10 species.

On Friday, April 5, 2019, the Service published a proposed rule, proposing to create a nonessential experimental population of California condor (Gymnogyps californianus) in the Pacific Northwest.  While the condor has been listed as endangered under the ESA since the ESA’s inception in 1973, this would establish a new population of condor in the Pacific Northwest, which is part of the condor’s historic range.  This experimental population would be subject to some amount of allowable take, because it is considered “nonessential” to the overall survival of the species.  The Service is accepting comments on this proposal until June 4, 2019.

On Thursday, April 4, 2019, the Service published a proposed rule finding that the petitioned action to list the eastern hellbender salamander (Cryptobranchus alleganiensis alleganiensis) as endangered or threatened was not warranted.  The proposed rule, however, found that a DPS of the species in Missouri should be listed as endangered under the ESA.  While the Ozark hellbender subspecies (Cryptobranchus alleganiensis bishopi) is already listed as endangered, the population is Missouri is a distinct subspecies.  The Service is accepting comments on its proposal to list the Missouri DPS until June 3, 2019.

On Thursday, April 4, 2019, the Service also published a notice of its finding that a petition to list eight species under the ESA was not warranted.  The species at issue were the Arkansas mudalia (Leptoxis arkansensis), Ashy darter (Etheostoma cinereum), Barrens darter (Etheostoma forbesi), Chihuahua scurfpea (Pediomelum pentaphyllum), Coldwater crayfish (Orconectes eupunctus), Eleven Point River crayfish (Faxonius wagneri), Spring River crayfish (Faxonius roberti), and Red-crowned parrot (Amazona viridignenalis).  The Service requested that any new or additional data on these species be submitted to the relevant regional offices.

Finally, on Friday, April 12, 2019, the Service published a proposed rule regarding the greater sage grouse (Centrocercus urophasianus).  Specifically, Friday’s proposed rule reopens the comment period regarding the Service’s 2013 proposal to list the bi-state DPS of greater sage grouse as threatened under the ESA and to designate critical habitat for the DPS.  The comment period will remain open for 60 days, and the Service intends to publish a final rule regarding the listing of the bi-state DPS and its critical habitat no later than October 1, 2019.  For our prior coverage on the greater sage grouse, please refer to our earlier posts here and here.

U.S. Fish and Wildlife Ordered to Take Fresh Look at Petition to Delist Bone Cave Harvestman

On March 28, 2019, a federal judge overturned the U.S. Fish and Wildlife Service’s (“USFWS”) rejection of a petition to delist an endangered karst invertebrate species, the Bone Cave harvestman (Texella reyeisi) (“BCH”), which is known to occur only in central Texas.

American Stewards of Liberty and others (“Plaintiffs”) had claimed that USFWS’ rejection of a 2014 petition to delist the BCH was arbitrary and capricious because, among other things, USFWS based its rejection on the petition’s supposed failure to provide BCH population trend data that was unavailable and is, potentially, unattainable. As noted in the petition, the best available population data for BCH is the evidence of its presence in separate caves or cave clusters. Since the BCH’s listing in 1988, the number of caves in which the species is known to occur has grown from half a dozen caves to more than 200—an increase of more than 3,000 percent.

The court held that USFWS’ requirement for population trend data violated the Administrative Procedure Act and remanded the decision back to USFWS, for a new 90-day finding. In its ruling, the court noted that Plaintiffs’ most compelling argument was that USFWS had “required a higher quantum of evidence than is permissible under the Endangered Species Act and implementing regulations governing” 90-day findings.  Specifically, the court held that regulations governing USFWS’ review of petitions to list and delist species require a petition present information which is, in fact, available, and that USFWS committed “a clear error in judgment” when the agency called for more evidence than is required under the law. Pursuant to the ruling, USFWS must undertake a fresh review of the 2014 petition and must use available species population information, as opposed to population information USFWS “admits is impossible to attain.”  Nossaman attorneys Paul Weiland, Alan Glen, Rebecca Barho, and Brooke Wahlberg represented Plaintiffs.

The court simultaneously rejected the contention of plaintiff-intervenors, who argued that USFWS’ regulation of the BCH violated the Necessary and Proper Clause and Commerce Clause, and the Tenth Amendment to the Constitution. Other parties participated in various capacities in the litigation, including the Center for Biological Diversity, Travis Audubon,  Defenders of Wildlife, Mountain States Legal Foundation, the State of Texas, and Williamson County, Texas.

Supreme Court Hears Auer Deference Case

On March 27, 2019, the Supreme Court of the United States heard oral argument in Kisor  v. Wilkie (No. 18-15), focusing on whether Auer deference should be overruled.  While the dispute is not environmental in nature, this case has nonetheless attracted significant attention from the environmental community due to the potentially significant implications to environmental litigation.  Auer deference (or Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Enforcement actions, permitting processes, and other agency actions are all impacted by the deference agencies receive as a result of the Auer deference doctrine.

The composition of the Supreme Court has also increased attention on Kisor, particularly with the appointments of Justices Gorsuch and Kavanaugh.  Justices Alito and Thomas also criticized Auer deference in a 2015 Supreme Court holding.  Despite this, oral argument today indicated some hesitancy by the Supreme Court to overturn Auer deference.  Questions posed by the Court ranged from how to reconcile the expertise of the agencies versus the courts’ lack thereof, to how tumultuous overturning Auer deference could be to the lower courts.  The Supreme Court also focused on the proposed modified deferential standard suggested by the government, which sought to clarify the applicability of Auer deference through the application of six factors.  This suggested six factor approach was met with skepticism over whether it would truly result in clarification.

In short, today’s oral argument indicates that the Supreme Court may not be as quick to overturn deference as anticipated.

U.S. Fish and Wildlife Service Issues Proposed Rule to Delist the Gray Wolf

On March 15, 2019, the U.S. Fish and Wildlife Service (“Service”) issued a proposed rule to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Wildlife.  As we reported here, the Service announced its intention to issue the proposed rule earlier this month.  According to the Service, the species’ population has rebounded considerably since it was originally listed in 1978, when the population estimate was approximately 1,000 individuals.  Now, the Service estimates there is a Great Lakes meta-population with approximately 4,400 individuals, along with an eastern Canadian meta-population of 12,000-14,000 individuals (with connectivity to the Great Lakes population) and a Rocky Mountain/western Canadian meta-population with approximately 16,000 individuals that continues to expand into Oregon, Washington, and California.  The Service believes these meta-populations are sufficiently stable to warrant delisting.

The Service has previously struggled with proposals to delist or reclassify the gray wolf. To that end, the proposed rule includes a chart identifying the numerous past legal and regulatory actions that have involved the gray wolf since the late 1970s.

Delisting the gray wolf will return wolf management to the states. The Service recognizes that the public response to this may be mixed, stating that it “expect[s] that some segments of the public will be more tolerant of wolf management at the State level because it may be perceived by some as more flexible then Federal regulation, whereas other segments may continue to prefer Federal management due to a perception that it is more protective.”  According to the Service’s statement in the Federal Register, comments on the proposed rule will be accepted until May 14, 2019.

Trump Administration Announces Plan to End Gray Wolf Protections

Acting Secretary of the U.S. Department of the Interior, David Bernhardt, recently announced that the U.S. Fish and Wildlife Service (Service) will publish a proposed rule removing federal protections under the Endangered Species Act for the endangered gray wolf (Canis lupus).  Secretary Bernhardt announced the plan at the 84th North American Wildlife & Natural Resources Conference in Denver, Colorado.

The gray wolf was originally listed as endangered in March 1978 throughout the contiguous United States, except in Minnesota, where the Service classified the species as threatened.  The current move to delist follows a 2011 attempt by the Obama administration to delist the species in Minnesota, Michigan, and Wisconsin, which was reversed by the U.S. District Court for the District of Columbia.  In 2017, the D.C. Circuit reinstated the Service’s delisting of the gray wolf in Wyoming.

The proposed rule to delist the gray wolf would leave management of the gray wolves to state regulators.  The Service has stated that the proposed rule will be published and available for public comment in the near future.  Please check back with us for further information.

Chub Back from the Brink – An ESA Success Story

Borax Lake chub

On February 26, 2018, the U.S. Fish and Wildlife Service issued a proposed rule to delist the Borax Lake chub (Gila boraxobius), a small fish that currently resides primarily in a single Oregon lake.  Currently listed as an endangered species, the proposed rule states that the best available scientific and commercial information “indicates that the threats to the Borax Lake chub have been eliminated or reduced to the point where the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act . . . .”  The Federal Register notice states that the Service will accept comments on the proposed rule that are received or postmarked on or before April 29, 2019.

Borax Lake, the chub’s primary habitat, is a geothermally heated, alkaline spring-fed lake.  The chub was the subject of an emergency listing in 1980.  The emergency listing was prompted by proposed geothermal development in and around Borax Lake, and human modification of the lake, all of which threatened the chub’s survival.  After the emergency listing ended, the Service formally listed the Borax Lake chub as an endangered species in 1980.

While delisting proposals are often contentious, the Borax Lake chub’s proposed delisting has been met with approval by some environmental groups who are touting the proposed delisting as another ESA success story.  (See Center for Biological Diversity, Tiny Oregon Fish Recovered by Endangered Species Act, dated Feb. 25, 2019.)

 

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