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.

California Poised to Waive Protections for Endangered Fish as Tribes Seek to Shutdown Klamath Irrigation Project in an Effort to Save the Species

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a motion to immediately enjoin water diversions, which is presently set to be heard on July 11, 2018.

The Lost River sucker and shortnose sucker are listed as endangered species under the federal and California Endangered Species Act. They are also a fully protected species under California law, which means that their take is prohibited by state law with narrow exceptions for scientific research, efforts to recover the species, and where conservation and management of the species is provided for in a natural community conservation plan (NCCP) approved by the Department of Fish and Wildlife.

At the same time that the Klamath Tribes are seeking to shut down farming in the Klamath region purportedly to save the fully protected suckers, the California legislature is poised to waive the protections afforded to the suckers by the fully protected species laws. Assembly bill 2640 would grant a legislative waiver of the protections provided to the suckers by Fish and Game Code section 5515, permitting the Department of Fish and Wildlife to authorize the removal of four dams in the lower Klamath River, which would permanently eliminate the reservoir habitat above the dams currently occupied by both sucker species, and would result in the extirpation of the species in that portion of their range.

Legislative waivers of law are rare and generally disfavored, as they undermine the concept of the rule of law, that is, the notion that the law is to be applied in a fair and consistent manner. But they have been enacted on occasion in the context of species conservation.  In this instance, the waiver obliges the Department of Fish and Wildlife to make a finding that removal of the dams will not jeopardize the suckers and that the impacts to the suckers will be minimized.  But in light of the precarious status of the species and a dearth of information regarding its contemporary distribution and abundance, as well as the prominent role of the State of California as an advocate for dam removal, those concerned about the fate of the suckers may be concerned that the State has a greater interest in dam removal than the survival of the endangered suckers.

Bill to Consolidate Endangered Species Act Oversight Advances Out of Committee

Salmon School Underwater

On May 16, 2018, the House Committee on Natural Resources passed six bills, including the Federally Integrated Species Health Act (H.R. 3916).  H.R. 3916 is sponsored by Representative Ken Calvert, a Republican representing the 42nd Congressional District in California.  The bill proposes to amend the federal Endangered Species Act to vest the Secretary of Interior with Endangered Species Act authority over fish species that migrate between fresh and ocean waters, such as the endangered Sacramento River winter-run Chinnok salmon (Oncorhynchus tshawytscha).  Currently, that authority is vested in the Secretary of Commerce.  As a result, when dealing with water related projects in coastal states, often times the U.S. Fish and Wildlife Service (which is part of the Department of Interior) and the National Marine Fisheries Service (which is part of the Department of Commerce) will each have Endangered Species Act jurisdiction over fish species in the project area.  This dual oversight can lead to issues with respect to the evaluation and implementation of the Endangered Species Act.  The press release issued by the House Committee on Natural Resources described H.R. 3916 as a bipartisan attempt to reduce “regulatory duplication in enforcement of the Endangered Species Act.”

Friday, May 18, 2018 is Endangered Species Day

On Friday, May 18, 2018, agencies and organizations throughout the United States will celebrate the 13th annual Endangered Species Day, which recognizes conservation efforts that protect our nation’s imperiled species and their habitats.  Events are scheduled throughout the country to celebrate our biodiversity and efforts to conserve that diversity.

 

Texas Cactus Officially Downlisted to Threatened

Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 individuals at 105 sites across the Edwards Plateau of west-central Texas. In addition to identifying populations of the cactus that were previously unknown, the Service worked with state partners and private landowners to protect and conserve the existing populations. The Service’s Southwest Regional Director cited today’s decision as “a victory for the collaborative model of conservation that engages states, private landowners and conservation groups to play a central role in a species’ recovery.”

The Tobusch fishhook cactus is just one of at least a dozen species that the Service plans to reclassify or remove from the ESA in the coming months, including the Kuenzler hedgehog cactus, the American burying beetle, and the Kirtland’s warbler.

Numerous Parties File Amicus Briefs in Dusky Gopher Frog Case

As we reported here, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, No. 17-71, on January 22, 2018.  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), 77 Fed. Reg. 35118 (June 12, 2012), that designated “critical habitat” for the dusky gopher frog (Rana sevosa) and included areas within the critical habitat that the frog does not and could not inhabit. Specifically, the currently uninhabitable areas are within the frog’s historic range but today contain only one of the three habitat characteristics deemed essential for the frog’s life cycle. The areas are part of a forest actively managed for timber production, and the owners (Petitioners) have no intention of restoring the characteristics that could support the frog.

The U.S. Supreme Court agreed to consider two questions presented by the Fifth Circuit’s decision: (1) Whether the Endangered Species Act (ESA) prohibits designation of critical habitat within areas that are unoccupied and neither habitat nor essential to species conservation; and (2) Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Petitioner Weyerhaeuser Company filed its opening brief on April 23, 2018. Respondent Markle Interests, LLC et al. filed their opening brief in support of petitioner on the same day.[1]

Following the submission of the opening briefs, 18 amicus briefs were filed in support of Petitioners by a wide array of groups, including 20 states and national organizations representing business, farmers, home builders, and energy interests. The parties to those briefs are as follows:

  • Coalition for a Sustainable Delta, et al.
  • Center for Constitutional Jurisprudence filed.
  • St. Tammany Parish Government.
  • Southeastern Legal Foundation.
  • Wyoming Stock Growers Association, et al.
  • Energy and Wildlife Action Coalition.
  • American Exploration & Production Council, et al.
  • Chamber of Commerce of the United States of America.
  • Washington Legal Foundation, et al.
  • National Conference of State Legislatures, et al.
  • The Cato Institute.
  • San Juan County, Utah.
  • The National Association of Home Builders, et al.
  • Building Industry Legal Defense Foundation, et al.
  • Brief of Alabama and 19 Additional States.
  • National Federation of Independent Business, et al.
  • Cause of Action Institute.
  • The American Farm Bureau Federation, et al.

Opposition briefs on the merits are due on June 29, 2018. Oral argument has not been scheduled at this time, but it is anticipated that it will be scheduled early in the fall term. Please check back with us to see how the U.S. Supreme Court decides these issues of critical important to ESA jurisprudence, namely how to interpret the critical habitat provisions of the ESA and how much deference to give to the Service’s interpretation of those provisions.

[1] Markle Interests, LLC, P&F Lumber Company 2000, LLC, and PF Monroe Properties, LLC, were plaintiffs-appellants below, but in the U.S. Supreme Court are respondents pursuant to Rule 12.6.

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