U.S. Supreme Court Will Revisit Auer Deference

On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Auer deference is similar to Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of ambiguous statutes.  As this blog has noted, agency deference has been in the spotlight recently, particularly with the appointments of Justices Gorsuch and Kavanaugh to the Supreme Court.  Justices Alito and Thomas also criticized Auer deference in a 2015 Supreme Court holding.

In Kisor, a Vietnam veteran is seeking retroactive benefits from the U.S. Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD).  The United States Court of Appeals for the Federal Circuit invoked Auer deference when evaluating the VA’s interpretation of its regulations, which resulted in the denial of the retroactive coverage for the veteran.  The question taken up by the Supreme Court is “whether the Court should overrule Auer and Seminole Rock.”

The Kisor case is not an environmental case, but the Supreme Court’s ruling could have significant impacts for environmental litigation.  Enforcement actions, permitting processes, and other agency actions are all impacted by the deference agencies receive as a result of the Auer deference doctrine.

If the Supreme Court overrules its Auer precedent and concludes that either the weaker Skidmore deference or no deference is appropriate, agencies will no longer have the security of knowing that the judicial branch will defer to the agencies.  A decision that overrules Auer deference may result in more tightly and precisely drafted regulations.  The Supreme Court will hear the case next year and likely make its ruling in late spring or summer.

Fish and Wildlife Service Proposes Critical Habitat for Sonoyta Mud Turtle

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) to designate approximately 12.28 acres of critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) in Pima County, Arizona.  The proposed critical habitat would be located entirely within the Organ Pipe Cactus National Monument.

The Service previously issued a final rule listing the species as endangered under the Endangered Species Act (ESA) in September 2017, finding that the Sonoyta mud turtle has been threatened by habitat loss and degradation due to surface water loss and riparian vegetation loss. The species’ primary future stressors also include the effects of climate change and small population dynamics.

In addition to the proposed rule, the Service has prepared a draft economic analysis of the proposed critical habitat designation. The proposed rule notes that the comment period on the proposed rule and draft economic analysis ends on February 4, 2019.

Supreme Court Rules ESA Critical Habitat Must Be Habitat For Listed Species

On November 27, 2018, the U.S. Supreme Court ruled that an area is eligible to be designated as “critical habitat” under the Endangered Species Act (ESA) only if the area is habitat for the relevant threatened or endangered species.  Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71.  The Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision, which held that the ESA has no habitability requirement, and remanded the case to the Fifth Circuit to consider the meaning of “habitat” under the ESA.  Additionally, the Court held that a decision by the U.S. Fish and Wildlife Service (Service) not to exclude an area from designated “critical habitat” is subject to judicial review.  These two holdings are likely to limit the Service’s expansive interpretation of its authority and provide the regulated community with the ability to challenge critical habitat designations where such actions have adverse economic consequences.

Under the ESA, “critical habitat” may include areas that are not currently occupied by a listed species, if the Service determines that such areas are “essential for the conservation of the species.”  When the Service designated critical habitat for the dusky gopher frog (Rana sevosa) in 2012, it identified four areas in Mississippi with existing frog populations and designated those areas as critical habitat.  But the Service determined that these four occupied areas were not adequate to ensure the frog’s conservation, and so also designated a 1544-acre area in Louisiana (described as “Unit 1”) as unoccupied critical habitat for the dusky gopher frog.  In doing so, the Service acknowledged that Unit 1 would not sustain the frog in its current condition, but concluded that the uplands forest, currently managed for timber production, could be restored to open canopy forest and made into suitable frog habitat with “reasonable efforts.”  Unit 1 is located on privately owned land and the owners of Unit 1 had no intention of converting the uplands to  frog habitat, as they were considering developing housing on the land, which is located not far from the New Orleans metropolitan area.

The landowners sought to have the critical habitat designation of Unit 1 vacated as inconsistent with ESA requirements and not supported by the administrative record.  They argued that, as a matter of law, an area cannot be “critical habitat” for a species if it is not currently habitable by that species, and that the unoccupied parcel in Louisiana is not habitable by the dusky gopher frog.  The critical habitat designation was upheld by the federal district court and a divided panel of the Fifth Circuit, which held (based only on the ESA’s definition of “critical habitat”): “There is no habitability requirement in the ESA or the implementing regulations.”

The Supreme Court rejected the suggestion that the criteria for unoccupied critical habitat are limited to the ESA’s definitions.  It looked instead to ESA section 4, the provision that directs the Service to designate critical habit, and stated its conclusion quite succinctly: “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

The Supreme Court also concluded that the ESA’s definition of “critical habitat” allows the Service “to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined.”  The Court noted the competing definitions of “habitat” offered by the Service and Weyerhaeuser (on behalf of the landowners of Unit 1).  The Service argued that habitat includes areas that, like Unit 1, require some degree of modification to sustain a species, while Weyerhaeuser, insisted that an area cannot be habitat if it cannot currently support a species.  The Court also noted the factual dispute between the parties regarding whether or not Unit 1 could currently support a dusky gopher frog population.  It remanded the case to the Fifth Circuit to consider those questions.

The Court’s limited holding that critical habitat must be habitat, reserving the meaning of habitat and the factual question of whether Unit 1 is habitat for the dusky gopher frog for further consideration by the lower courts, likely reflects the efforts of Chief Justice Roberts to find common ground and forge a unanimous decision among the eight justices who heard argument in the case.  Justice Kavanaugh, who was confirmed after the case was argued, did not participate in the decision.  With an eight justice panel, there was real potential for an even split on the question of whether an area must be currently habitable to be deemed critical habitat.  If the Supreme Court had split evenly, the Fifth Circuit’s holding that the ESA does not require habitability for critical habitat would have remained in place.  As the unanimous decision indicates, all the justices agreed that the Fifth Circuit was wrong on this central legal point and that critical habitat must be habitat.

The Supreme Court also overturned the Fifth Circuit’s determination regarding courts’ abilities to review a Service decision whether to exclude an area from critical habitat based on economic impacts.  The Fifth Circuit held that this determination is committed to agency discretion by law and not reviewable by the courts.  The Supreme Court reversed, holding that a Service decision to not exclude an area from critical habitat, like its decision to designate critical habitat areas, is reviewable for abuse of discretion.  This aspect of the decision is at least as important as the holding with respect to the definition of critical habitat, as it provides the regulated community with the ability to challenge the Service’s conclusions regarding the costs and benefits of excluding areas from critical habitat.

U.S. Fish and Wildlife Service Lists Candy Darter as Endangered

On November 21, 2018, the U.S. Fish and Wildlife Service (“Service”) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list the candy darter as threatened, but the final rule lists the candy darter as endangered.

The candy darter, which is named for its vibrant colors, has been extirpated in approximately half of its historical range.  One of the main drivers for the candy darter’s population decline is hybridization (or cross-breeding) with a different darter species – the variegate darter (Etheostoma variatum).  Due to the severity of this threat to the candy darter species, the Service predicts that under the three most likely future scenarios, the candy darter will only occur in four isolated populations in twenty-five years.  In its final rule, the Service indicates that it previously underestimated the risk of hybridization of the species in one specific population – the Upper Gauley – and that this initial underestimation was a factor in listing the darter as endangered, rather than threatened.  Concurrent with its final rule, the Service proposed critical habitat for the candy darter, composed of five critical habitat units that cover the five main watersheds in which the candy darter occurs, and indicated that it will be preparing a recovery plan.  The Service’s proposed critical habitat designation indicates that the Service is not, at this time, considering any areas for exclusion from the proposed critical habitat pursuant to Endangered Species Act section 4(d).  The proposed critical habitat designation indicates that the Service will accept comments on the proposed designation until January 22, 2019.

California Fires Impact People, Pets, and Wildlife

The recent California wildfires have been devastating.  But it is during such times of devastation that we also get to see the good in people.  We see communities coming together, and support from around the State.  As reported by a number of news agencies, that support has extended to not just people, but also pets.  There are stories with pictures of police officers corralling pot belly pigs, horses being guided through smoke and flames, and dogs and cats being rescued by a variety of organizations.  However, it isn’t just people and pets who called these places home.  Wildlife can also be severely impacted by wildfires.  For example, in 2003 wildfires that raged in southern California destroyed habitat for the coastal California gnatcatcher (Polioptila californica californica), least Bell’s vireo (Vireo bellii pusillus), the southern California mountain yellow-legged frog (Rana muscosa), and the Quino checkerspot butterfly (Euphydryas editha quino), all of which are listed under the federal Endangered Species Act.  For the benefit of people, their pets, and the surrounding wildlife, we hope that our brave firefighters are able to extinguish these fires as quickly as possible.

Federal Court Finds That U.S. Fish and Wildlife Service’s Management of Reintroduced Red Wolves Violated Endangered Species Act

On November 4, 2018, the U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of conservation organizations Red Wolf Coalition, Defenders of Wildlife, and Animal Welfare Institute in a case challenging the U.S. Fish and Wildlife Service’s (FWS) administration of the recovery program for endangered red wolves (Canis rufus).

FWS began reintroducing red wolves in North Carolina in 1987.  Red wolves were designated as a non-essential experimental population under section 10(j) of the Endangered Species Act (ESA).  As such, FWS may only reintroduce red wolves into the Red Wolf Recovery Area, which encompasses 1.7 million acres of federal, state, and private lands.  FWS has promulgated regulations (the red wolf rule) prohibiting the take of red wolves in the recovery area unless in defense of a person’s life; the animal is in the act of killing livestock or pets; or the take has been authorized by FWS project personnel “after efforts by project personnel to capture such animals have been abandoned.”

The plaintiffs alleged that FWS violated ESA section 9 by authorizing take of red wolves by private landowners without satisfying the requirements of the red wolf rule; that FWS violated ESA section 4 by administering the red wolf rule in a manner that failed to provide for the conservation of red wolves and by failing to conduct the mandatory five-year status review of the species; and that FWS violated ESA section 7 by failing to administer the red wolf recovery program in furtherance of the conservation purposes of the ESA and by failing to ensure that their administration of the program is not likely to jeopardize the red wolf’s continued existence.  The lawsuit also alleged that FWS’ administration of the program violated the National Environmental Policy Act (NEPA).

The court held that the claim regarding FWS’ failure to conduct a mandatory five-year review was prudentially moot, because FWS completed a five-year review in early 2018.  But the court granted summary judgment for the plaintiffs on all of the remaining claims.  It enjoined FWS from taking red wolves without first demonstrating that such red wolves are a threat to human safety or the safety of livestock or pets, and declared that FWS’ administration of the program violated the ESA and NEPA.

The court emphasized that FWS is required to comply with its conservation mandate despite the substantial challenges presented by interactions between reintroduced red wolves and humans.

Specifically, the court found that the red wolf rule requires FWS to actually abandon efforts to capture specific red wolves before issuing a take authorization.  The take authorizations challenged in the lawsuit, which were issued without confirming the presence of specific red wolves on the subject property and because the landowners had failed to give FWS trapping access, failed to satisfy these requirements.  The court explained:

Abandonment of USFWS efforts based on a landowner’s refusal to grant USFWS access to their property cannot serve as a proper basis for issuing a lethal take authorization under [the red wolf rule], as doing so would impermissibly tip the scales in favor of public demand and away from USFWS’s congressionally mandated goal to recover and rehabilitate the red wolf in the wild.

The court additionally noted that FWS had apparently discontinued successful management strategies (e.g., wolf introductions, strict limits on take authorizations) in response to mounting public pressure against red wolf recovery efforts.  These changes coincided with a “drastic decrease” in the red wolf population, and therefore violated ESA sections 4 and 7.  The court rejected FWS’ argument that these changes were within its discretion:

Allowing the red wolf population to decline, while having access to methodologies which were previously successful in increasing or maintaining the wild population of the species, is an interpretation of the red wolf rule that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Finally, the court held that FWS was required to comply with NEPA because its decision to cease wolf introductions while increasing the likelihood of authorized lethal takes by landowners may adversely affect red wolves.

U.S. Supreme Court Passes on Otter Case with Chevron Implications

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (“Combs”), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (“Service”).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is reasonable.

Combs arose from a dispute over the Service’s decision to shutter its endangered sea otter translocation program in California.  Fishing groups had sued the Service and lost in the Ninth Circuit, which upheld the Service’s decision as a reasonable interpretation of the Marine Mammal Protection Act.  The petitioners in Combs then took the fight to the Supreme Court, arguing the Ninth Circuit had expanded Chevron deference and asking the Court to consider whether an agency is entitled to deference under Chevron when a statute is silent on potential agency action, neither authorizing nor forbidding it.

While some commentators have argued that it is only a matter of time before the Court takes up a case to clarify Chevron deference, Combs will not be that case.  The case failed to garner the support of four Justices, which is necessary for the Court to grant a petition for certiorari.

Ninth Circuit Dismisses Challenge to Policy Regarding ESA Criminal Prosecutions

In WildEarth Guardians et al. v. U.S. Department of Justice, Case Nos. 17-16677, 17-16678, 17-16679 (Oct. 23, 2018), the U.S. Court of Appeals for the Ninth Circuit dismissed plaintiff-appellees case challenging the U.S. Department of Justice’s McKittrick policy.  In reversing the lower court, the Ninth Circuit concluded that plaintiff-appellees lack standing to pursue the case. 

The McKittrick policy directs Department of Justice attorneys who prosecute Endangered Species Act (ESA) cases to request jury instructions that prove beyond a reasonable doubt that a defendant knew the biological identity of the animal taken. In other words, the policy requires a demonstration both that taking of an ESA-protected animal occurred and that the person who exacted the taking knew he or she was taking a protected animal. Importantly, the heightened standard of proof applies only in the context of criminal prosecution under the ESA; civil enforcement of the ESA’s take prohibition is based on strict liability.

Plaintiff-appellees based their standing on the claims that (1) the McKittrick policy decreases the deterrent effect of the ESA’s take prohibition, (2) absent the policy there would be additional prosecutions for take of Mexican wolves (Canis lupus baileyi), and (3) those prosecutions would deter persons from engaging in activity that leads to take, which would decrease the take of Mexican wolves. In rejecting this logic chain, the Ninth Circuit held “WildEarth’s conclusion necessarily rests upon several layers of speculation.”  This includes speculation about the enforcement priorities of both the U.S. Fish and Wildlife Service and the Department of Justice, as well as the behavior of members of the public.  It is unlikely plaintiff-appellees will seek further review of the case.​


Citing Concerns for Endangered Vaquita, Court Declines to Lift Ban on Import of Some Seafood

On October 22, 2018, the U.S. Court of International Trade denied the request of various federal agencies to stay an injunction banning the import of Mexican seafood caught with gill nets in the Gulf of California.  The injunction, granted in July, is intended to protect the endangered vaquita porpoise (Phocoena sinus), which can get tangled in commercial fishing gill nets.  The injunction required the United States Department of Commerce, National Marine Fisheries Service, United States Department of the Treasury, United States Department of Homeland Defense, and various individuals acting in their official capacity, pursuant to the Marine Mammal Protection Act, to ban the importation of commercial fish and fish products caught with technology that results in incidental killing or injury of ocean mammals in excess of United States standards.  More specifically, the ban prohibits import of fish and fish products from Mexican commercial fisheries using gill nets in the vaquita’s range in the Upper Gulf of California.  It is believed that very few vaquita remain in the wild.  In requesting the stay, the U.S. government alleged that it had suffered “ongoing serious harm” as a result of the injunction.  The court, however, concluded that the government had not met its burden for a stay.