Endangered Species Law & Policy

In the last several days there has been a flurry of end-of-summer activity, with federal courts issuing a number of Endangered Species Act (ESA) decisions:

• On September 2, 2016, the U.S. District Court for the Northern District of California held that the U.S. Fish and Wildlife Service (FWS) and the California Department of Transportation (Caltrans) violated the ESA by failing to properly consider the impacts of widening Highway 1 on the threatened California red-legged frog (Rana draytonii) and the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia). Pacificans for a Scenic Coast v. California Dept. of Transp., No. 15-cv-02090.  Among other things, the court held that Caltrans breached its procedural obligations under section 7 of the ESA by developing a biological assessment with a flawed project description, and FWS violated the ESA by issuing a biological opinion that improperly relied on vague and speculative mitigation measures.
• On September 2, 2016, the U.S. District Court for the District of Montana rejected a challenge to FWS’ determination that listing the Upper Missouri River distinct population segment of Arctic grayling (Thymallus arcticus montanus) under the ESA is not warranted at this time. Center for Biological Diversity v. Jewell, No. CV 15-4-BU-SEH.  The court concluded that in declining to list the species, FWS relied on the best available science, considered all appropriate listing factors as mandated by the ESA, and made a reasonable decision that was entitled to deference.
• On August 31, 2016, the U.S. District Court for the District of Idaho held that the U.S. Forest Service did not violate the ESA when it approved the Lost Creek-Boulder Creek Restoration Project, a watershed improvement project in the Payette National Forest. Alliance for the Wild Rockies v. FWS, No. 1:15-cv-00193.  Among other things, the court upheld the no-jeopardy biological opinion issued by FWS regarding the impacts of the proposed project on the threatened bull trout (Salvelinus confluentus).
• On August 31, 2016, the U.S. Court of Appeals for the Eleventh Circuit upheld FWS’ biological opinion relating to the impacts of proposed off-road vehicle trails in the Big Cypress National Preserve in Florida. Nat’l Parks Conservation Ass’n v. U.S. Dept. of the Interior, No. 14-15326.  Among other things, the court held that FWS properly considered the impacts of the proposed project on the threatened eastern indigo snake (Drymarchon couperi) and endangered Florida panther (Puma concolor).

In addition, on September 2, 2016, FWS issued a draft ESA Compensatory Mitigation Policy. The policy is intended to implement other recent policies issued by the Executive Office and the Department of the Interior that shift from a project-by-project approach to a landscape-scale approach to planning and implementing compensatory mitigation.  The policy is also intended to improve consistency in the use of compensatory mitigation as recommended or required under the ESA.  According to the notice in the federal register, FWS will accept comments on the draft policy until October 17, 2016.