National Marine Fisheries Service Finds Listing the Klamath and Trinity River Chinook Salmon as Threatened or Endangered May Be Warranted

On February 27, 2018, the National Marine Fisheries Service (“Service”) published a 90-day finding on the Karuk Tribe and Salmon River Restoration Council’s (“Petitioners”) petition to list the Upper Klamath-Trinity Rivers Basin (“UKTR”) Chinook salmon (Oncorhynchus tshawtscha) evolutionarily significant unit (“ESU”) as endangered or threatened.  Based on the information included in Petitioners’ filing, the Service found that listing the UKTR ESU as endangered or threatened under the Endangered Species Act (“ESA”) may be warranted.

The Service’s determination follows a prior “not warranted” finding made in 2012, and relies heavily on the continued decline of the spring-run spawning population of the UKTR ESU.  In determining that listing the UKTR ESU may be warranted, the Service notes that it may only be warranted based on two factors:  (1) disease, and (2) the inadequacy of existing regulatory mechanisms.  Specifically, the Service cites the high rate of infection of juvenile Chinook salmon by the lethal parasite Ceratonova shasta, and analogizes its potential population level impact to the population impacts observed in the closely related Klamath River Basin coho salmon which are affected by the same parasite.  Moreover, although the Klamath Fisheries Management Council indicated in 2003 that it intended to develop management recommendations aimed at conserving spring-run Chinook salmon, the Petitioners presented evidence that harvest management objectives were not set.  Finally, the Service concluded that a 2017 genetic study of spring run and fall run Chinook salmon indicates that spring-run premature migration qualifies UKTR ESU as an evolutionarily significant unit under the Service’s evolutionarily significant unit policy.

The Service’s finding indicates that it is accepting additional information related to its “may be warranted” finding until April 30, 2018.

FWS De-lists One California Desert Plant, Down-lists Another

On February 27, 2018, the U.S. Fish and Wildlife Service (FWS) finalized a regulation removing Eureka Valley evening-primrose (Oenothera californica ssp. eurekensis) from the Federal List of Endangered and Threatened Plants.  The delisting, originally proposed in 2014, is based on the elimination of threats to the subspecies, accomplished largely as a result of the 1994 designation and ongoing management of its dune habitat as federal wilderness within Death Valley National Park.  The National Park Service manages the federal wilderness area under the Park Service’s Organic Act and the Wilderness Act, and limits off-highway vehicle and other potentially impactful recreational activities, thereby significantly reducing potential threats to the plant’s survival and recovery.  The elimination of human-caused threats to the subspecies through federal lands management lead the FWS to find that the plant is no longer either threatened or endangered.

In the same regulation FWS also downlisted from endangered to threatened the Eureka Valley dune grass (Swallenia alexandrae), another plant species endemic to the dune habitat of Death Valley.  The downlisting of the Eureka Valley dune grass was also based on a reduction in human-caused threats.

District Court rejects Challenge to Corps Activities on the Yuba River in Northern California

In Friends of the River v. National Marine Fisheries Service, the U.S. District Court for the Eastern District of California rejected challenges to Army Corps of Engineers and National Marine Fisheries Service decisions regarding the impact of dams, hydropower facilities, and water diversions along the Yuba River on listed fish species, the spring-run Chinook salmon (Oncorhynchus tshawytscha), the Central Valley steelhead (Oncorhynchus mykiss), and the North American green sturgeon (Acipenser medirostris).  In so doing, the court addressed a number of issues that may arise in the course of consultations under section 7(a)(2) of the federal Endangered Species Act.

Among the issues before the court was whether the federal defendants used an appropriate environmental baseline when assessing the potential effects of the agency action.  The agencies determined that prior dam construction and the future effects stemming from the existence of the dams were part of the environmental baseline, not part of the action, and the court concurred.

Additional issues before the court were whether the actions by the Corps of Engineers were nondiscretionary, and whether agencies were required to consult regarding nondiscretionary actions.  Relying on the Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife, the district court held that there is no requirement to consult regarding nondiscretionary actions under the federal Endangered Species Act.  And, because the Corps of Engineers is obliged to complete dam inventory and safety inspections under federal law, the court affirmed the agency determination that these actions are nondiscretionary and not subject to the Endangered Species Act’s consultation requirement.

Yet another noteworthy issue before the court was the scope of the consultation pursuant to section 7 of the Endangered Species Act.  Plaintiffs argued that the exclusion of certain activities, such as the administration of permits and contracts, from the proposed action subject to consultation was unlawful.  While the court held that issuance of permits and contracts are “actions” for the purpose of Endangered Species Act section 7(a)(2), it also concurred with the federal defendants’ determination to classify these as individual actions rather than interrelated or interdependent actions, and therefore not part of the action subject to consultation.

American Wind Energy Association (AWEA) to Address Cutting Edge Topics at Upcoming Wind Project Siting & Environmental Compliance Conference

AWEA’s 2018 Wind Project Siting & Environmental Compliance Conference will be held from March 20-21, in Memphis, Tennessee.  Nossaman Environment and Land Use Partner Brooke Wahlberg and Senior Policy Advisor John Anderson will both be participating in the conference, where leaders from the wind industry, environmental permitting and compliance sector, the scientific community and regulatory officials come together for a robust discussion about the current state of siting and environmental compliance.  Discussions will provide key insights about wind energy development, operations, evolving trends, and strategies for improving the project permitting process and maximizing the output of operating assets, while increasing regulatory and legal certainty. Continue Reading

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”).

Continue Reading

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.