SCOTUS accepts dusky gopher frog case

On January 22, 2018, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71.  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) designating “critical habitat” for the dusky gopher frog (Rana sevosa) and including areas within critical habitat that the frog could not currently inhabit.

The dusky gopher frog spends most of its life underground in open-canopied pine forests.  Historically, it was found in parts of Louisiana, Mississippi, and Alabama, but its present known distribution is limited to Mississippi.  The Service promulgated a final rule designating critical habitat for the species in 2012.  77 Fed. Reg. 35118 (June 12, 2012).  Petitioners own land designated critical habitat for the dusky gopher frog, including land that is not currently habitable by the species.  The Service designated this land as critical habitat despite the fact that it is not habitable on the grounds that it is essential to the conservation of the dusky gopher frog.  The principle issues presented to the Court are how to interpret the critical habitat provisions of the Endangered Species Act and how much deference to give to the Service’s interpretation of those provisions.

Nossaman filed briefs on behalf of multiple amicus curiae parties supporting the grant of review in this case.

Environmental Law Conference to Provide Updates On Current and Developing Issues Practitioners Will Need to Know in 2018

On February 9, 2018, Nossaman veteran Environmental Law attorney Steven Quarles will be serving as a member of the faculty for the American Law Institute (ALI) CLE program, Environmental Law 2018.  The full conference, held from February 8-9, 2018 in Washington, DC, is the first national program of its kind, and the slate of confirmed speakers includes top tier environmental sector leaders from both the public and private sectors.  This essential conference has become the place for legal and environmental professionals from across the country to meet and explore emerging trends, crucial developments, and substantial updates in the various areas of environmental law.  Now in its 48th year, Environmental Law will feature a national faculty of seasoned practitioners from the private sector, senior governmental officials, in-house counsel, renowned law professors, and public interest advocates.  In addition to exploring key issues developing in the major areas of environmental law, this conference will also discuss what is ahead under the current administration as well as examine the current significant Supreme Court cases on environmental law.  Additional topics to be addressed at the conference include:

  • Wildlife trafficking
  • The definition of WOTUS (Waters of the U.S.)
  • Private and state enforcement of environmental laws

Mr. Quarles’ presentation is entitled “Public Lands and ESA: Hot Topics and New Challenges,” and will cover:

  • Recent legislative action, agency determinations, and judicial decisions affecting decision-making and processes under the ESA and other federal wildlife laws
  • Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act
  • Role of enforcement and prosecutorial discretion
  • The changing mitigation policies for all three laws

CLE credit will be available for both in-person and webcast attendance.  Visit ALI’s website to review the full agenda and register.  To receive a $200 discount on the regular in-person or full video webcast registration fee, please enter the code ALICLEMK at check-out.  We hope you will be able to join Mr. Quarles in Washington for this timely conference.

Ninth Circuit Partially Reverses Agencies’ Sea Turtle and Migratory Bird Conclusions Related to Swordfish Fishery Expansion

On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries.  Environmental groups brought claims against the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (“ESA”), Migratory Bird Treaty Act (“MBTA”), and the National Environmental Policy Act (“NEPA”).  Specifically the Ninth Circuit examined the lower court’s holdings regarding a NMFS biological opinion and an MBTA special purpose permit related to an increase in the total number of shallow-set longline swordfish fisheries.  A NMFS biological opinion was required because the increased fishing efforts via longline method may result in incidental take of the Northern Pacific loggerhead sea turtle (Caretta caretta) and leatherback sea turtle (Dermochelys coriacea), both protected under the ESA.  The shallow-set longline fishing method also has the potential to take various birds protected under the MBTA.  Plaintiffs initiated the lawsuit when NMFS finalized a rule in 2009 that increased the number of shallow-set fisheries allowed.  The original lawsuit settled and NMFS withdrew its original biological opinion and the portions of the 2009 rule increasing the fishery limits.  After NMFS issued a new biological opinion in 2012, again concluding that the increase in shallow-set fisheries would not jeopardize the continued existence of either turtle species, a second lawsuit was filed.

Although the district court affirmed the USFWS’ issuance of the MBTA special purpose permit and the NMFS biological opinion., the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s MBTA holding and NMFS’ no jeopardy conclusion for the loggerhead sea turtle.  With respect to the MBTA claim, the Ninth Circuit found that the USFWS use of the MBTA special purpose permit provisions to authorize incidental take was contrary to the plain language of the regulation and the intent of the MBTA.  The court did not squarely examine whether the MBTA applies to incidental take, however, the Department of the Interior  Solicitor’s Office recently issued its revised interpretation that the MBTA take prohibition does not extend to incidental take.  As for the ESA claim, the Ninth Circuit found that NMFS’ no jeopardy conclusion in the biological opinion for the loggerhead sea turtle had “improperly minimized the risk . . . to the loggerheads’ survival”  by evaluating the effects of the proposed increase in longline fisheries against the already deteriorated baseline condition, rather than incorporating the baseline conditions into the jeopardy analysis.    The Ninth Circuit also noted that NMFS failed to incorporate climate change data into its jeopardy analysis, thereby further minimizing the cumulative risk to loggerhead sea turtles.  The Ninth Circuit, however, rejected plaintiffs’ claims that NMFS failed to adequately consider climate change more generally.  While NMFS could not articulate precise climate change effects in its biological opinion, NMFS demonstrated that it did sufficiently take into account a variety of climate change considerations.   Judge Callahan dissented in part, stating that USFWS’s application of the MBTA is entitled to deference, and that the no jeopardy conclusion for loggerhead sea turtles was not flawed as the majority found.

End of the Year Endangered Species Round-Up

As 2018 approaches, the U.S. Fish and Wildlife Service (“Service”) made a few announcements that will likely impact the list of threatened and endangered species.  In these last 11 days of 2017, the Service announced 90-day findings on petitions to list or reclassify five species, and 12-month findings on petitions to list or de-list two species under the ESA.

  • On December 20, 2017, the Service announced 90-day findings on petitions for five separate species. The Service found that the petitioned actions for each of the five species may be warranted, based on the information presented in each of the petitions.  For each of the five species, the Service is requesting additional information on the status of the species, and initiating a status review.  Specifically, the Service found that:
    • The petition to list the Oblong rocksnail (Leptoxis compacta) as endangered or threatened may be warranted. The rocksnail is found in the Cahaba River, in Shelby County, Alabama.
    • The petition to list the Sturgeon chub (Macrhybopsis gelida) and the Sicklefin chub (Macrhybopsis meeki) as endangered or threatened may be warranted. Both are found in parts of Arkansas, Illinois, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, South Dakota, Tennessee, and Wyoming.
    • The listing of the Tri-Colored Bat (Perimyotis subflavus) may also be warranted. The bat is found in over 30 states, the District of Columbia, and parts of Canada and Mexico.
    • The listing of the populations of venus flytrap (Dionaea muscipula ellis) found in southeastern North Carolina, northeastern South Carolina, and the introduced populations in Florida and New Jersey, may be warranted.
    • Corrections to an earlier 90-day finding on a petition to list the leopard (Panthera pardus) as endangered throughout its range were necessary. These corrections clarified that the status review would include all populations of the leopard throughout its range, and that the leopard’s current range encompasses 62 countries in Africa and Asia.
  • On December 29, 2017, the Service announced 12-month status review findings on a petition to list the beaverpond marstonia (Marstonia castor) as endangered or threatened, and a petition to remove the southwestern willow flycatcher (Empidonax traillii extimus) from the list of ESA species. With respect to the marstonia, a freshwater snail native to three creeks in Georgia, the Service found that it did not meet the definition of either a threatened or endangered species because it is believed to be extinct.  The flycatcher is a small migratory bird that is found in the southwestern United States in parts of California, Nevada, Utah, Colorado, Arizona, New Mexico, and Texas, and was first listed as an endangered species in 1995.  Based on a review of the subspecies classifications for the flycatcher, recent studies evaluating diagnostic subspecies characteristics, and evaluating the threats to the flycatcher, the Service found that the flycatcher remains a valid subspecies that meets the definition of an endangered species under the ESA.

Department of the Interior Revises Interpretation of Migratory Bird Take Prohibition

On December 22, 2017 the Department of the Interior (“DOI”) Solicitor’s Office issued its revised interpretation of the Migratory Bird Treaty Act’s (“MBTA”) prohibition on the take of migratory bird species.  Official opinions from the DOI Solicitor’s Office are known as “M Opinions” and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview.  In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”  Less than a month after Opinion M-37041 was issued, the Acting Secretary of the Interior issued a memorandum temporarily suspending Opinion M-37041, pending a review by the new Acting Solicitor.

The December 22, 2017 Solicitor’s Opinion, Opinion M-37050, represents the conclusion of the DOI Solicitor’s Office’s review of the MBTA’s prohibition on take and a complete reversal of Opinion M-37041.  Opinion M-37050 explicitly states that “this memorandum permanently withdraws and replaces Opinion M-37041.”  Significantly, Opinion M-37050 concludes that “consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”  (Emphasis added).  In other words, take of a migratory bird, its nest, or eggs that is incidental to another lawful activity does not violate the MBTA, and the MBTA’s criminal provisions do not apply to those activities.

Opinion M-37050 will likely have significant ramifications for regulated industries that have wrestled with MBTA compliance, particularly those facing potential incidental take of migratory birds.  Check back soon for a more comprehensive analysis of Opinion M-37050.

Administration Announces Comprehensive Revisions to Endangered Species Act Implementing Regulations

In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical habitat. The announcements cite Executive Order 13771 – entitled, “Enforcing the Regulatory Reform Agenda” – which articulates the Trump Administration’s policy and commitment to alleviate unnecessary regulatory burden. It can be expected that the forthcoming regulatory revisions will aim to streamline and reduce Endangered Species Act compliance obligations. Please check back here for further coverage of these regulatory developments.

The Power of the Purse, and What That Potentially Means This Holiday Season

Long ago, the framers of the Constitution decided to separate the federal government’s powers into three branches, with each branch acting as a check on the other.  Broadly speaking, the legislative branch writes the law, the judicial branch decides what the law means, and the executive branch decides how to enforce the law.  Sometimes, however, the powers can overlap among the branches.

For example, besides writing the laws, the legislative branch also approves the budgets for the various federal agencies.  And if a particular agency budget does not include funds for enforcement or implementation of a law, enforcement or implementation by that particular federal agency could effectively be stymied, regardless of how the executive branch would otherwise choose to enforce or implement the law.  This is what’s known as, the “Power of the Purse.”

Congress has a long history of exercising the Power of the Purse.  Often times, one political party will use the budget process to achieve something they would have difficulty achieving through the normal legislative process due to a lack of votes.

Last week, as reported by the Center for Biological Diversity, Senate Republicans proposed a number of additions to the appropriations bill for the Department of Interior and the U.S. Environmental Protection Agency.  A number of these additions were focused on the implementation and enforcement of the Endangered Species Act.  For example, one addition would preclude the expenditure of funds for purposes of listing the lesser prairie chicken as a threatened or endangered species under the Endangered Species Act.

Not surprisingly, support for these additions was split along party lines.  As the holiday season continues, be sure to check back with us as we continue to monitor this process.

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.