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.


Petition Filed to List Bumble Bee as Endangered Under the California ESA

On October 16, 2018, the Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and the Center for Food Safety submitted a petition to the California Fish and Game Commission (Commission) to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckely cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered under the California Endangered Species Act.  The Commission is required under the California Fish and Game Code to refer the petition to the California Department of Fish and Wildlife for a recommendation to the Commission regarding the petition’s merits.

Supreme Court Hears Oral Argument in Dusky Gopher Frog Case

On October 1, 2018, the U.S. Supreme Court heard oral argument in the first case of its new term, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71. The case concerns the designation of critical habitat under the Endangered Species Act (ESA) for the dusky gopher frog (Rana sevosa) in an area that is not currently capable of sustaining a frog population. The central issue in the appeal is whether an area that currently does not possess some of the characteristics deemed essential for the frog’s survival may nevertheless be designated as unoccupied “critical habitat” for the species. The Court of Appeals for the Fifth Circuit previously affirmed a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated as critical habitat an area that is within the frog’s historic range but long ago was converted to densely planted commercial timberland that bears no resemblance to the open-canopied woodlands essential to the dusky gopher frog’s habitat.

The parties framed two central issues for the Court: (1) Weyerhaeuser argued that an area cannot be “critical habitat” for a species if it is not currently habitable by that species; (2) the Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

The justices’ questioning reflected the known divisions in the Court. Justice Kagan was first to speak, asking Weyerhaeuser’s counsel whether the company’s insistence that an area be currently habitable was consistent with the ESA’s focus on conservation of listed species. She framed the facts as presenting the Service with a choice between letting a species go extinct and designating an area that, while it cannot currently sustain the frog, could be made habitable through reasonable efforts and is necessary for the recovery of the species. Justice Alito followed with questions that allowed Weyerhaeuser’s counsel to identify other tools the ESA offers to avoid a species’ extinction, beyond designation of critical habitat, such as facilitating habitat acquisition.

Justice Sotomayor’s questioning picked up on factual arguments that the Service had advanced in its briefing, suggesting that the habitat in an area need not be optimal for a species to survive there and pointing out that the frog had been seen on the parcel in question in the 1960s, after active timber management had begun. The suggestion by the Service, echoed by Justice Sotomayor, was that the site in question might be habitable by the frog today, despite the absence of forest characteristics deemed to be primary elements of the frog’s habitat.

Justice Breyer, a potential swing vote in the case, framed the dispute as a typical agency case. He said the ESA directs the Secretary of the Interior to exercise discretion in designating critical habitat. It is common for statutes to grant this sort of discretion. The question is whether the Secretary properly exercised that discretion; whether the Secretary’s decision was reasonable. Breyer pressed Weyerhaeuser’s counsel on whether that was the right way to look at the case. When the lawyer responded that the Service was wrong and restoration here would require extreme efforts, Breyer retorted that he was not disagreeing with the framework Breyer had described, just with how Breyer read the record.

In line with Justice Breyer’s focus on the disputed designation as an exercise of agency discretion, the central focus of most of the questioning was the Service’s assertion that an area may be designated critical habitat if it may be capable of sustaining a species after it is modified through “reasonable efforts.” Chief Justice Roberts asked the Service’s counsel whether a pond in Alaska could be designated as critical habitat for the frog if a big greenhouse could be built next to the pond to provide for the forest elements of the frog’s habitat. While the Service’s counsel agreed that the Alaska pond could not be critical habitat, as it would be maintained through artificial means, Justice Breyer followed up with questions that probed the limits of the agency’s discretion.

Breyer asked the Service’s counsel where to draw the line between a site that Chief Justice Roberts described, which needs a greenhouse to support the animal, and habitat that can be used now. He did not get a direct response; the Service’s counsel said, in essence, it depends on the facts for each species. But several of the justices were dissatisfied with that response.

Justices Gorsuch, Alito, Roberts and Breyer all returned repeatedly to the question of whether the ESA provides direction or guidance as to the limits of what may be considered “reasonable efforts.” The Service’s counsel offered a distinction concerning areas that were previously habitat for an animal, differentiating between an area that was subsequently modified versus habitat that has been destroyed. He suggested that forest that has been converted to commercial timberland has been modified but its current use remains similar to the habitat conditions needed to sustain the frog, while habitat would be destroyed by being converted to a shopping center and would not be feasible to restore.  Several justices questioned whether there was any support for that distinction in the statute.

The arguments presented the justices with two alternative readings of the ESA: a bright line that would prohibit designating an area as critical habitat if it is not currently habitable; and a grant of discretion to the Service to extend critical habitat to areas that could be made habitable through reasonable efforts. As the Court currently has only eight justices, and only those justices who attend oral argument vote on the outcome of an appeal, an even split is a distinct possibility. If that occurs, the Court could choose to have the case reargued after a ninth justice is confirmed, or with a tie vote could allow the Fifth Circuit’s decision to stand. But even if the Court issues a split decision, opinions in the case are likely to include important discussions of critical habitat concepts that will have repercussions for ESA cases nationwide.

It is likely to be several months before the Court issues its decision in this case. Please check back with us to see how the Court rules on this first case of its new term.

Endangered Species Act Litigation Round-Up

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

  • In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of how that action would affect other protected grizzly bear populations in the lower 48 states.  The court held that, in failing to do so, the Service “entirely failed to consider an important aspect of the problem.”  The court also held that the Service acted arbitrarily and capriciously in dropping a key commitment for monitoring threats to the Greater Yellowstone grizzly, asserting that by doing so the Service negotiated away its obligation to apply the best available science.  The court stated that it dropped the commitment in order to reach consensus for planned grizzly bear protections with the states of Wyoming, Idaho, and Montana.  The court’s decision restores ESA protections for the Greater Yellowstone DPS.
  • In Colorado v. U.S. Fish and Wildlife Service, 15-cv-00286-CMA-STV, the U.S. District Court for the District of Colorado held (pdf) that the Service complied with federal law when it listed the Gunnison sage grouse (Centrocercus minimus) as threatened under the ESA four years ago. Plaintiffs, including the states of Colorado and Utah, argued that the Service violated the Administrative Procedure Act (APA) by not allowing for public comment on a key population analysis that the Service relied on for its decision to list the species.  The court disagreed with plaintiffs that this was reversible error, stating that the study supplemented previously existing data (i.e., logically outgrew from it), was not the critical basis on which the Service relied to reach its ultimate determination, and plaintiffs were not prejudiced from the non-disclosure.  The court also upheld the Service’s concurrent designation of 1.4 million acres of critical habitat for the Gunnison sage grouse.
  • The United States Supreme Court recently heard argument in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which involves the Service’s designation of critical habitat for the dusky gopher frog (Lithobates sevosus). Weyerhaeuser Co. challenged the Service’s designation of 1,500 acres of private land in its critical habitat designation, despite the fact that the species does not currently reside in the designated habitat.  Moreover, there is a dispute regarding whether the private land must be modified to support the species.  Argument focused on the limit of the Service’s authority to designate critical habitat in light of the remote connection of the species to the private property at issue.  The U.S. Circuit Court of Appeals for the Fifth Circuit has ruled that the Service’s interpretation of “habitat” to include the 1,500 acres warrants deference.  Due to Justice Kennedy’s retirement from the Court, the decision could result in a 4-4 split, which would result in upholding the Fifth Circuit’s ruling in favor of the Service’s designation.

Proposed ESA Regulatory Revisions Spark Last Minute Comment Flurry

As we reported here, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (together, the “Services”) recently proposed revisions to the regulations that implement portions of the Endangered Species Act (“ESA”). The submission deadline for comments was September 24, 2018.  If enacted, the Services assert that the proposed revisions would, among other things, streamline ESA consultations with other federal agencies and clarify the jeopardy standard.

The proposed revisions sparked a flurry of last minute comment submissions from environmental groups, who reportedly filed an additional 500,000 comments before the submission deadline. Many of these comments were standardized in form and content, and included the same phrase in opposition to the proposed revisions.

However, the volume of comments does not necessarily impact the outcome of the regulatory amendment process. Whether the Services make further changes to the proposed ESA revisions in response to the more than 800,000 comments submitted remains to be seen, so please check back with us for further updates.

Endangered Species Case Sparks Chevron Deference Debate

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the Court should not grant the petition.

The petition in question is California Sea Urchin Commission v. Combs, Docket No. 17-1636, which involves an appeal of a Ninth Circuit ruling that affirmed a 2012 decision by the U.S. Fish and Wildlife Service (Service) to shut down its endangered sea otter translocation program. Under that program, the Service had established management zones surrounding certain sea otter populations wherein fishermen who incidentally harmed sea otters would be exempt from liability under the Endangered Species Act and the Marine Mammal Protection Act. After the Service shut down the program, a California state commission and several fishing industry groups sued the Service. The Ninth Circuit upheld the Service’s decision under the Chevron doctrine, finding that the agency’s interpretation of the underlying statute was reasonable.

The fishing industry groups have focused on the underlying Chevron question in their petition for a writ of certiorari, presenting the issue to the Court as: “[i]f a statute neither authorizes nor forbids an agency action, does that statutory silence trigger Chevron deference?” In comparison, the government and the environmental non-profits have tried in their recently filed opposition briefs to reframe the issue away from a broader Chevron question and focused more on the Service’s actions as consistent with its authority under the statutes.

We will continue to track this case as the Supreme Court decides whether or not to grant the petition. Be sure to check back with us for further updates on whether the Court decides to take the case.

Beetle Science Front and Center in New Lawsuit

On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service).  The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA).  The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle which raised concerns about the methods being used by the Service.

The Service initiated a status review of the species, which was listed as endangered in 1989 and occupies habitat in four states, in 2016.  The Service has since been under pressure to make a decision regarding whether or not to remove the beetle from the List of Endangered and Threatened Species.  A risk assessment for the beetle is part of the Service’s attempt to address a still-outstanding 12-month finding.

At least one scientist who previously worked on the risk assessment alleges that the Service engaged in questionable methods, was opaque or even facetious about the data underlying its conclusions, and imposed unreasonable timelines.  In a letter to the Service, he alleges repeatedly requesting documents, and that these requests were repeatedly denied.  Following publication of his letter, the Center for Biological Diversity filed a Freedom of Information Act request with the Service seeking information about the Service’s evaluation of the beetle’s status.  The Center for Biological Diversity’s lawsuit alleges that the Service failed to release detailed records related to the request, including a number of records in the Service’s possession, which the Center for Biological Diversity separately obtained from third parties.  If the lawsuit succeeds, it could force the Service to turn over a number of documents related to its review of the burying beetle’s status which, to date, have not been made public.  It should be noted, however, that the status review of the species is incomplete, and both a 12-month finding and a five-year status review are pending.  As such, allegations by the Center for Biological Diversity that the methods employed by the Service in conducting the status review are flawed may be prejudging the outcome, since the process is not yet completed.