Ninth Circuit Holds ESA Listing of Arctic Ringed Seal Is Not Arbitrary and Capricious Despite Lack of Existing Quantitative Data

On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispidaPhoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”).

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California Department of Fish and Wildlife Recommends Listing of Tricolored Blackbird

At its February 2018 meeting, the California Fish and Game Commission (“Commission”) received the one-year status review report on a petition to list tricolored blackbird (Agelaius tricolor) as a threatened or endangered species from the Department of Fish and Wildlife (“Department”).  In the status report the Department recommends listing the species as threatened under the California Endangered Species Act.  Because the species is so widely distributed and abundant, listing could have major impacts on building, farming, and public infrastructure activities and projects across California.

Petitioners for the listing claim that “[t]ricolored blackbird populations are declining at an alarming rate,” and that “efforts to reduce and reverse population decline are critically needed.”  But the species is widely distributed, occurring in at least 37 counties in California, as well as in Nevada, Oregon, and Washington.  And, while estimates of the size of the population are subject to multiple sources of uncertainty described in the body of the status report, appendix 2 to that report, and the peer reviews, those estimates indicate the overall population has been relatively stable in surveys conducted over the past five decades.  Further, the most recent statewide survey effort – conducted in 2017 – estimated an increase in the population from 145,000 in 2014 to 177,000 in 2017.  Peer reviews of the listing petitions submitted to the Commission along with the status review report diverged on whether listing is warranted.

Under section 2075 of the California Fish and Game Code, the Commission is required to schedule the petition for final consideration at its next meeting, which is in April.  At the hearing on the petition the Commission is obliged to accept written materials and oral testimony from interested parties.  Once the Commission closes the hearing, it must find either that the petitioned action is warranted or not warranted.

Second Budget Proposal Proposes Significant Cuts to the Endangered Species Act Budget

On February 12, 2018, the Trump Administration released a budget proposal that would reduce spending on various components of the Endangered Species Act by almost half, including listing determinations and protection of critical habitat.  The administration’s latest budget proposal has been met with widespread opposition by the environmental community.  See Trump Budget is Death Sentence for Endangered Species by Center for Biological Diversity.

Upcoming Pacific Northwest Timberlands Management Seminar to Provide Timely Updates from Top Timber Sector Practitioners

On March 16, 2018, Nossaman Environment and Land Use Law Partner Svend Brandt-Erichsen will be serving as a member of the faculty for The Seminar Group’s CLE and Foresters program Pacific Northwest Timberlands Management: Regulations, Litigation, and Business Considerations. 

The full conference, held from March 15-16, 2018, at the Portland, Oregon World Trade Center, will also be available via live webcast and on demand following the live presentation.  Mr. Brandt-Erichsen’s presentation, entitled “Practice Pointers for Energy Projects on Timberlands,” will take place at 2:30 p.m. PT and will cover:  energy project permitting needs and timelines; potential wildlife impacts and related mitigation needs; and providing construction access and access during the project’s operating life.

Additional topics to be addressed at the conference include: Continue Reading

NMFS Extends Comment Period on Western DPS of Steller Sea Lion

On February 6, 2018, the National Marine Fisheries Service (NMFS) announced an extension of the public comment period for the 5-year review of the endangered Western Distinct Population Segment (DPS) of the Steller sea Lion (Eumetopias jubatus).  The Western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters in Asia.  According to the Federal Register notice, the extension of the comment period to April 6, 2018 was issued in response to a request for additional time.  In addition to providing notice of the extension, NMFS also corrected the electronic link for submission of comments via the Federal eRulemaking Portal, which was provided in the additional notice.

NMFS Lists Oceanic Whitetip Shark as Threatened Species

On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA).  This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark.  In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range contraction or experienced population extirpations in any portion of its range despite heavy harvest bycatch and decreases in abundance of the species.  These points were central to NMFS’ determination that the species merits a threatened listing status as opposed to an endangered status.  NMFS listed the shark as threatened under the ESA because the species has experienced significant historical and ongoing declines in abundance globally, with estimates of up to a 96 percent decline in some areas, due to overutilization from fishing pressure (both as bycatch and intentional catch) and inadequate regulatory mechanisms to protect the species.

NMFS noted that global regulations for fisheries and trade are insufficient to control for the threat of overutilization via fishing pressure, which includes the effects of the fin trade. Despite an increase in species-specific fisheries regulations throughout the species’ range, NMFS concluded that existing regulatory mechanisms are largely inadequate for addressing the threat of overutilization throughout a large portion of the species’ range.

Additionally, NMFS determined it was not obligated to consider the listing of two potential DPSs because it already found that the shark warrants listing range-wide. Specifically, NMFS stated, “We concluded that the oceanic whitetip shark warrants listing as a threatened species throughout its range.  As such, we have discretion as to whether we should divide a species into DPSs, and the [public] commenter is incorrect that we are required to commit additional agency resources to conduct an analysis and break up the species into the smallest listable entity (i.e., DPSs) despite a warranted listing for the species globally.”  NMFS, however, also briefly noted that it did consider the best available science and concluded that the science does not support the identification of DPSs for the shark.  NMFS’ assertion that it is not required to break up a species eligible for listing into the smallest listable entity has potential implications for use of DPSs going forward.

This listing may impact U.S. longline and purse seine fisheries in the Northwest Atlantic, Hawaii, American Samoa, and elsewhere throughout the species’ range, as the species is susceptible to incidental capture as bycatch. Because NMFS is listing the species as threatened rather than endangered, the ESA’s “take” prohibitions do not automatically apply.  NMFS is not currently proposing to promulgate a 4(d) “special rule” that would apply some or all of the ESA’s “take” prohibitions to the oceanic whitetip shark, although NMFS may propose to do so in the future.

Ninth Circuit Rules Migratory Bird Treaty Act Permits Take of Barred Owl to Study Impacts on Conservation of Threatened Northern Spotted Owl

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA).  The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for “scientific purposes” to only those situations where the research is aimed at conservation of the species taken.

The case arose from the Service’s 2008 Recovery Plan for the Northern spotted owl, a threatened species under the Endangered Species Act.  While the Recovery Plan recognized loss of old-growth forest habitats as the principal reason for the spotted owl’s decline, it included a component for the design and implementation of experiments in key northern spotted owl territories to assess the effects of barred owl removal on spotted owl recovery.

For the study proposed by the Recovery Plan, the Service proposed an experiment that would involve both the lethal and non-lethal take of approximately 3,600 barred owls over a four year period.  Friends of Animals and Predator Defense (Friends) filed suit, alleging that the scientific experimental take permit violated the MBTA.  Friends asserted that, under the MBTA, a permit for take for a scientific purpose was allowed only where the action was intended to advance the conservation of the species likely to be taken.  Because the Service issued the permit to allow take of barred owls for the purpose spotted owl recovery, Friends claimed the Service failed to satisfy the scientific purpose requirements.

The Ninth Circuit disagreed.  It held that the MBTA itself actually imposed few substantive conditions.  Instead, the MBTA delegated broad authority to the Secretary of the Interior to implement its mandates.  The Ninth Circuit panel held that the “used for scientific purposes” exception permitted under international conventions addressing take of migratory birds, which the MBTA implements, includes taking of birds for study.  The Ninth Circuit further found that the exception applies regardless of whether the birds taken for scientific study benefited conservation efforts related to another protected bird species.

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.

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