USFWS Guidance Clarifies Trigger for ESA Incidental Take Permits Tied to Habitat Modification

U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in “take” of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance provides general instructions applicable to all ITPs, regardless of whether they permit direct take or take due to habitat modification. The guidance emphasizes that the decision to pursue an ITP or whether to cover a species is the project proponent’s choice to make.  For example, the guidance recognizes that it is “vital that [USFWS] staff recognize that whether to apply for an [ITP] is a decision of the applicant” and directs staff to not use mandatory language (e.g., a permit is “required”) when communicating with non-federal parties.  Further, the guidance recognizes that “[t]he biological, legal, and economic risk assessment regarding whether to seek a permit belongs with the private party determining how to proceed.”  Finally, USFWS staff is directed to proactively advise potential applicants that an ITP is only appropriate when an activity is likely to result in the “take” of ESA-listed wildlife and that it is the potential applicant’s decision whether to apply for an ITP.

Additionally, the guidance provides that habitat modification, in and of itself, does not constitute “take” unless the three components of “harm” are met. Thus, in order to find that habitat modification constitutes an incidental take of listed species, the following questions must all be answered in the affirmative:

  1. Is the modification of habitat significant?
  2. Does that modification also significantly impair an essential behavior pattern of a listed species?
  3. Is the significant modification of the habitat likely to result in the actual killing or injury of wildlife?

These principles are consistent with the USFWS Habitat Conservation Planning Handbook and prior case law. However, as a point of departure from prior interpretation, the guidance also reasons that ITPs cannot authorize “take” that occurs from activities that “harass” a listed species because harassment is not “incidental.”

Attached to the guidance memorandum is a questionnaire for potential ITP applicants and a flowchart.  Both attachments are intended to assist USFWS staff and potential applicants in determining whether an ITP may be advisable for a given activity or project.

Federal Greater Sage Grouse Conservation Plans Revisited

The Bureau of Land Management (“BLM”) has announced a 90-day comment period on proposed amendments to six Resource Management Plans (“RMPs”) and associated draft Environmental Impact Statements (“DEISs”) designed to protect the greater sage grouse (Centrocercus urophasianus).  In 2015, BLM finalized RMPs that addressed greater sage grouse conservation efforts across ten states.  The six RMPs that are the subject of this latest comment period address restrictions on energy development and other activities in Colorado, Idaho, Nevada, Northern California, Oregon, Wyoming and Utah for the benefit of the greater sage grouse. This announcement follows BLM’s October 2017 announcement of a public comment period for reconsideration of the RMPs.  In April 2018, the proposed amendments to the Wyoming RMP leaked to the public.  Amendments to RMPs addressing greater sage grouse conservation in Montana and portions of North and South Dakota are expected at a later date.

In general, the amendments to the RMPs are intended to bring the RMPs into closer alignment with individual state practices and interests.  Aligning state and federal interests has been an ongoing focus of Department of Interior (“DOI”) Secretary Ryan Zinke and the proposed amendments adhere to DOI Secretarial Order 3353, which focuses on reconciling federal management plans with state management practices.  According to DOI Deputy Interior Secretary David Bernhardt, the specifics and magnitude of the amendments to the six RMPs vary depending in part on input from the relevant states.

Amendments to the RMPs may have implications for the greater sage grouse’s status under the Endangered Species Act (“ESA”).  Over the course of the RMPs’ development, the U.S. Fish and Wildlife Service (“USFWS”) had been considering extending ESA protections to the greater sage grouse in response to listing petitions from conservation groups.  USFWS relied heavily on the RMPs in reaching its determination that the greater sage grouse did not warrant protection under the ESA.  The greater sage grouse’s ESA status could again come under scrutiny should these amendments be finalized.  The BLM announcement states that the public comment period for the six RMPs and DEISs will close on August 2, 2018.

U.S. Fish and Wildlife Delists Lesser Long-Nosed Bat

The U.S. Fish and Wildlife Service (FWS) issued a final rule removing the lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) from the Federal List of Endangered and Threatened Wildlife due to recovery.  According to FWS, threats to the bat have been eliminated or reduced and populations are healthy and stable such that the species is no longer endangered or threatened with endangerment under the Endangered Species Act (ESA).  It is the first bat species delisted from the ESA due to recovery.

When the bat was first listed in 1988, fewer than 1,000 bats at only 14 known roosts were believed to exist. There are now an estimated 200,000 bats at 75 roosts in the southwestern United States and Mexico.  The bat was removed from Mexico’s endangered species list in 2015.

In the United States, most lesser long-nosed bat roosts and forage areas are managed by federal agencies, including the U.S. Forest Service, Bureau of Land Management, National Park Service, and the U.S. Army’s Fort Huachuca.  All have integrated management of lesser long-nosed bat forage plants into their land use and resource management plans.  Federal agencies are also aiding in deterring human disturbance of roost site caves and abandoned mines through site closures, law enforcement, and installation of bat gates that eliminate human access.  FWS believes that the bat’s flexible and adaptive behaviors will allow it to remain viable under changing climatic conditions.

FWS has prepared a Post-Delisting Monitoring Plan (PDMP) committing to monitoring the lesser long-nosed bats’ continued roost occupancy, as well as monitoring and assessing the bats’ forage availability. The PDMP will alert FWS to any drops in population numbers or future threats to the bats’ viability

California Lists Tricolored Blackbird

On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.

The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a “dramatic decline” in population estimates from 2008 to 2011 and again from 2011 to 2014.  The Department of Fish and Wildlife recommended listing as threatened in its 2018 12-month status review, despite the fact that the 2017 population estimate was 20 percent higher than the 2014 estimate.

It is unlawful to take species listed as threatened under the California Endangered Species Act without authorization from the Department of Fish and Wildlife.

Preble’s Meadow Jumping Mouse Stays Put on List of Threatened Species

On April 17, 2018, the U.S. Fish and Wildlife Service (Service) reached a negative “90-day finding” on a petition to remove the Preble’s meadow jumping mouse (Zapus hudsonius preblei) from the List of Threatened and Endangered Species.  The Service’s finding was in response to a petition to delist the mouse filed by the Pacific Legal Foundation in 2017.  The Service concluded that the petition presented no new information indicating that delisting the mouse is warranted.

The Service rejected the petition’s taxonomic argument that the mouse is not a distinct subspecies that qualifies for protection under the Endangered Species Act (ESA).  The petition was based upon a 2013 study concluding that genetic evidence shows the Preble’s meadow jumping mouse is not a legitimate subspecies of one of the largest and most widespread genetic lineages of North American jumping mice and therefore asserted that the mouse is not a listable entity under the ESA.  In rejecting the petition, the Service reasoned that it had already reviewed and incorporated the 2013 study into both the prior 5-year status review and the draft recovery plan for the species.  The Service further concluded that the 2013 study did not present information indicating that delisting is warranted “due largely to its limited, historical biogeographical context based on genetics, prematurely applied conservation rankings, and stated admission that a taxonomic revision is beyond its scope.”

The Preble’s meadow jumping mouse is found in Colorado and southern Wyoming and, since its listing as threatened in 1998, has been the subject of multiple delisting petitions brought by agricultural, business, and real estate development interests, as well as the State of Wyoming.

Arizona becomes the First State to Eliminate Chevron Deference

On April 11, 2018, Arizona Governor Doug Ducey signed into law H.B. 2238, which amended the state’s administrative procedure laws to provide that courts are not required to defer to an agency’s legal interpretation in lawsuits over administrative decisions. The amendment effectively eliminated “Chevron deference,” which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute.

The legal doctrine—named for the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resource Defense Counsel, Inc., 467 U.S. 837, 842-844 (1984)—has been criticized by various judges, including U.S. Supreme Court Justice Neil Gorsuch (then sitting on the Tenth Circuit).  The U.S. Senate has also unsuccessfully attempted to repeal the doctrine.  Other Supreme Court Justices, as we reported here, are not inclined to disturb the well-established law.

The Arizona law is the first state law of its kind. Arizona lawmakers are hopeful that the law may serve as a model for other states or Congress.  If a similar bill is able to successfully pass through Congress and become law, it will have far reaching consequences for cases challenging agency decisions made pursuant to the Endangered Species Act.

Ninth Circuit Affirms Injunction Order for Federal Columbia River Power System to Prevent Harm to Listed Salmonids

On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the “Federal Agencies”) conduct spill operations and fish monitoring at dams and related facilities in the Federal Columbia River Power System (FCRPS).  The appeal was the latest development in a long-running dispute regarding salmon and steelhead species listed under the Endangered Species Act (ESA) that are impacted by FCRPS dams.

Thirteen species and/or populations of Columbia River or Snake River salmonids listed as either endangered or threatened under the ESA migrate up and down the Columbia and Snake Rivers every year, encountering FCRPS dams.  The court explained that turbines from these dams result in a high mortality rate for the salmonid species that pass by or near them.  As a means of reducing the potential turbine mortality, each dam in the migration corridor of the Columbia and Snake rivers has a bypass system to allow the salmonid species to avoid the turbines.

This lawsuit is based on the most recent (2014) biological opinion (BiOp) for the FCRPS, which affirmed the conclusion that operation of the FCRPS would jeopardize ESA-listed species and adversely modify critical habitat for listed salmonid species.  The 2014 BiOp proposed an alternative that included, among other items: (i) modifications to systems operations and structures at the dams to improve fish passage and migration conditions, and (ii) allowing some spill from the FCRPS dams to enhance the likelihood of survival for migrating juvenile salmonids.  The National Wildlife Federation and State of Oregon (Plaintiffs) challenged the 2014 BiOp, alleging that it violated the ESA.  The U.S. District Court for the District of Oregon agreed, holding that NMFS violated the ESA by determining that the alternative proposed in the 2014 BiOp would not jeopardize ESA-listed salmonid species.  In response, the Federal Agencies began preparing a new BiOp for FCRPS operations.  While the Federal Agencies worked on the new BiOp, Plaintiffs sought injunctive relief for the ESA violations, requesting implementation of increased spring spill and operation of juvenile bypass facilities and tag detection systems at FCRPS dams.  The district court granted the Plaintiffs’ request, in part, requiring the Federal Agencies to increase the amount of spring spill water released from the FCRPS operations to mitigate impacts to the ESA-listed salmonid species.  The Federal Agencies appealed the injunction.

The Ninth Circuit found that the district court properly exercised its discretion in granting the injunction.  Specifically, the Ninth Circuit noted that the ESA strips courts of some of their equitable discretion when determining whether injunctive relief is warranted.  Specifically, the ESA removes three factors from the traditional four-factor injunctive relief test: (1) that remedies available at law are inadequate to compensate for the injury, (2) that the balance of hardships warrants injunctive relief; and (3) that the public interest favors an injunction.  The ESA does not, however, remove the requirement that plaintiffs demonstrate irreparable injury.  Rather, plaintiffs must still demonstrate that an irreparable injury is likely in the absence of an injunction where an ESA violation is at issue.

The Ninth Circuit concluded that the district court conducted a proper irreparable harm analysis and did not err when it found irreparable harm without finding an extinction-level threat to the species during the remand period.  Rather, a lesser magnitude of harm was sufficient where Plaintiffs demonstrated a definitive threat of future harm to the protected species.  Additionally, the Ninth Circuit affirmed the district court’s finding that harm would result from operation of the FCRPS dams as a whole, because effects on listed species from the current spill regime could not be cleanly separated from operations taken as a whole.    Specifically, the Ninth Circuit also found that the evidence supported the district court’s conclusion that the salmonids were in a “precarious” state and would remain there without conservation efforts beyond those in the 2014 BiOp.  Plaintiffs also adequately demonstrated that the harm to salmonids while the Federal Agencies revised the BiOp would harm their own interests, including recreational and aesthetic pursuits.

U.S. Fish and Wildlife Service Lists Yellow Lance Mussel as Threatened

On April 3, 2018, the U.S. Fish and Wildlife Service (Service) published a final to rule listing the yellow lance mussel (Elliptio lanceolata) as threatened under the Endangered Species Act (ESA).  The final rule states that only seven populations of this freshwater mussel remain, all of which are located in Maryland, Virginia, and North Carolina.  The listing was prompted by a “mega-petition” filed by the Center for Biological Diversity and several other environmental organizations in 2010 that included the mussel.  In September 2015, after litigation had been filed regarding the petition, the Service entered into a stipulated settlement obligating the Service to make listing decisions about the species in the petition by a specific deadline.  With respect to the mussel, the Service specifically agreed to submit its proposed finding on whether or not to list the mussel by no later than March 31, 2017.  The final rule identifies urbanization and the effects of climate change as threats to the mussel, which contribute to habitat loss and degradation.  The Service did not include an ESA section 4(d) rule in its listing decision, but stated that it plans to propose a 4(d) rule regarding permissible incidental take in the future.  The final rule indicates that a careful assessment of the economic impacts of the mussel’s listing and potential critical habitat is ongoing, and that a proposed rule to designate critical habitat will be published in the near future.

FWS Proposes to Downlist Hawaiian Nene and Allow Limited Incidental Take

On April 2, 2018, the U.S. Fish and Wildlife Service (Service) proposed downlisting the Hawaiian goose (Branta sandvicensis), locally known as the “nene,” from endangered to threatened under the Endangered Species Act (ESA).  The Service also proposed adopting a special rule pursuant to ESA section 4(d), known as a “section 4(d) rule,” allowing incidental take of nene for particular conservation and law enforcement functions.

The nene was federally listed as endangered in 1967, after the population fell below 30 individuals on Hawaii’s Big Island.  The Service instituted a captive-rearing program to rebuild the wild population and subsequently published a Nene Recovery Plan that set a delisting objective at 2,250 individuals spread between the islands of Hawaii and Maui.  This captive-rearing program ran until 2011, and the population of nene across multiple islands now numbers 2,855 individuals.  Given the increase in population numbers due to the captive-rearing program and other conservation efforts, the Service concluded the nene is no longer in danger of extinction throughout all of its range.  However, the Service found that significant threats to the nene remain, including lack of suitable breeding and flocking habitat, predation by introduced mammals, and increased interactions with human activities.  As such, the Service concluded the nene should be reclassified from endangered to threatened under the ESA, as opposed to being removed from the List of Endangered and Threatened Species.

In addition to the proposed downlisting, the Service also proposed adopting a rule under ESA section 4(d) allowing “take” of nene (as defined under section 9 of the ESA) for three specific classes of activities: (1) hazing or intentional harassment of nene that is not likely to cause direct injury or mortality, when conducted by landowners attempting to manage wildlife conflicts; (2) incidental take of nene through activities designed either to help control the populations of introduced predators of nene, or to help manage nene habitat; and (3) actions taken by law enforcement officers related to injured, sick, or dead nene.  The Service determined that allowing these activities would facilitate continued conservation of nene and the expansion of their range, without causing any significant impact to nene populations as a whole.

The Proposed Rule states that the Service is accepting comments on the proposed downlisting and section 4(d) rule until June 1, 2018.