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.

FWS Withdraws Listing Proposal for Southern California Plant in Favor of Voluntary Conservation

On March 16, 2018, the U.S. Fish & Wildlife Service (FWS) announced the withdrawal of its 2016 proposed rule to list San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a southern California plant species, as a threatened species under the Endangered Species Act (ESA).  The spineflower’s conservation has been one component of the long-standing conflict over the development of Newhall Ranch in northern Los Angeles County, since its discovery on the property in 2000.

According to FWS, the spineflower no longer meets the statutory definition of a threatened or endangered species due to the adoption of new conservation measures in a candidate conservation agreement (CCA) with Newhall Land and Farming (Newhall Land) in 2017.  A CCA is a formal agreement between FWS and one or more parties to address the conservation needs of species that are proposed or candidates for listing under the ESA, or species likely to become candidates, before they are listed as endangered or threatened.

According to FWS, “The 2017 CCA outlines several new conservation actions that will be enacted to address the current and future threats that we identified in our September 15, 2016, proposed rule [ ].”  Specifically, the CCA requires Newhall Land to:

  • Establish new spineflower occurrences within the plant’s historical range
  • Conserve, manage, and monitor an additional 1500 acres of Newhall land as spineflower habitat
  • Conserve and manage an approximately 7-acre portion of the California Department of Fish and Wildlife’s Petersen Ranch Mitigation Bank

Using its Policy for Evaluation of Conservation Efforts to evaluate the likely effectiveness of the 2017 CCA, FWS concluded that “there is sufficient certainty that the conservation efforts outlined in the CCA will be implemented and effective, and significantly reduce the identified threats and their impacts to [spineflower] and its habitat[]”, thus warranting withdrawal of the proposal to list the species

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

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