On February 6, 2018, the National Marine Fisheries Service (NMFS) announced an extension of the public comment period for the 5-year review of the endangered Western Distinct Population Segment (DPS) of the Steller sea Lion (Eumetopias jubatus). The Western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters in Asia. According to the Federal Register notice, the extension of the comment period to April 6, 2018 was issued in response to a request for additional time. In addition to providing notice of the extension, NMFS also corrected the electronic link for submission of comments via the Federal eRulemaking Portal, which was provided in the additional notice.
On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA). This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark. In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range contraction or experienced population extirpations in any portion of its range despite heavy harvest bycatch and decreases in abundance of the species. These points were central to NMFS’ determination that the species merits a threatened listing status as opposed to an endangered status. NMFS listed the shark as threatened under the ESA because the species has experienced significant historical and ongoing declines in abundance globally, with estimates of up to a 96 percent decline in some areas, due to overutilization from fishing pressure (both as bycatch and intentional catch) and inadequate regulatory mechanisms to protect the species.
NMFS noted that global regulations for fisheries and trade are insufficient to control for the threat of overutilization via fishing pressure, which includes the effects of the fin trade. Despite an increase in species-specific fisheries regulations throughout the species’ range, NMFS concluded that existing regulatory mechanisms are largely inadequate for addressing the threat of overutilization throughout a large portion of the species’ range.
Additionally, NMFS determined it was not obligated to consider the listing of two potential DPSs because it already found that the shark warrants listing range-wide. Specifically, NMFS stated, “We concluded that the oceanic whitetip shark warrants listing as a threatened species throughout its range. As such, we have discretion as to whether we should divide a species into DPSs, and the [public] commenter is incorrect that we are required to commit additional agency resources to conduct an analysis and break up the species into the smallest listable entity (i.e., DPSs) despite a warranted listing for the species globally.” NMFS, however, also briefly noted that it did consider the best available science and concluded that the science does not support the identification of DPSs for the shark. NMFS’ assertion that it is not required to break up a species eligible for listing into the smallest listable entity has potential implications for use of DPSs going forward.
This listing may impact U.S. longline and purse seine fisheries in the Northwest Atlantic, Hawaii, American Samoa, and elsewhere throughout the species’ range, as the species is susceptible to incidental capture as bycatch. Because NMFS is listing the species as threatened rather than endangered, the ESA’s “take” prohibitions do not automatically apply. NMFS is not currently proposing to promulgate a 4(d) “special rule” that would apply some or all of the ESA’s “take” prohibitions to the oceanic whitetip shark, although NMFS may propose to do so in the future.
In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA). The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for “scientific purposes” to only those situations where the research is aimed at conservation of the species taken.
The case arose from the Service’s 2008 Recovery Plan for the Northern spotted owl, a threatened species under the Endangered Species Act. While the Recovery Plan recognized loss of old-growth forest habitats as the principal reason for the spotted owl’s decline, it included a component for the design and implementation of experiments in key northern spotted owl territories to assess the effects of barred owl removal on spotted owl recovery.
For the study proposed by the Recovery Plan, the Service proposed an experiment that would involve both the lethal and non-lethal take of approximately 3,600 barred owls over a four year period. Friends of Animals and Predator Defense (Friends) filed suit, alleging that the scientific experimental take permit violated the MBTA. Friends asserted that, under the MBTA, a permit for take for a scientific purpose was allowed only where the action was intended to advance the conservation of the species likely to be taken. Because the Service issued the permit to allow take of barred owls for the purpose spotted owl recovery, Friends claimed the Service failed to satisfy the scientific purpose requirements.
The Ninth Circuit disagreed. It held that the MBTA itself actually imposed few substantive conditions. Instead, the MBTA delegated broad authority to the Secretary of the Interior to implement its mandates. The Ninth Circuit panel held that the “used for scientific purposes” exception permitted under international conventions addressing take of migratory birds, which the MBTA implements, includes taking of birds for study. The Ninth Circuit further found that the exception applies regardless of whether the birds taken for scientific study benefited conservation efforts related to another protected bird species.
On January 22, 2018, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71. Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service) designating “critical habitat” for the dusky gopher frog (Rana sevosa) and including areas within critical habitat that the frog could not currently inhabit.
The dusky gopher frog spends most of its life underground in open-canopied pine forests. Historically, it was found in parts of Louisiana, Mississippi, and Alabama, but its present known distribution is limited to Mississippi. The Service promulgated a final rule designating critical habitat for the species in 2012. 77 Fed. Reg. 35118 (June 12, 2012). Petitioners own land designated critical habitat for the dusky gopher frog, including land that is not currently habitable by the species. The Service designated this land as critical habitat despite the fact that it is not habitable on the grounds that it is essential to the conservation of the dusky gopher frog. The principle issues presented to the Court are how to interpret the critical habitat provisions of the Endangered Species Act and how much deference to give to the Service’s interpretation of those provisions.
Nossaman filed briefs on behalf of multiple amicus curiae parties supporting the grant of review in this case.
On February 9, 2018, Nossaman veteran Environmental Law attorney Steven Quarles will be serving as a member of the faculty for the American Law Institute (ALI) CLE program, Environmental Law 2018. The full conference, held from February 8-9, 2018 in Washington, DC, is the first national program of its kind, and the slate of confirmed speakers includes top tier environmental sector leaders from both the public and private sectors. This essential conference has become the place for legal and environmental professionals from across the country to meet and explore emerging trends, crucial developments, and substantial updates in the various areas of environmental law. Now in its 48th year, Environmental Law will feature a national faculty of seasoned practitioners from the private sector, senior governmental officials, in-house counsel, renowned law professors, and public interest advocates. In addition to exploring key issues developing in the major areas of environmental law, this conference will also discuss what is ahead under the current administration as well as examine the current significant Supreme Court cases on environmental law. Additional topics to be addressed at the conference include:
- Wildlife trafficking
- The definition of WOTUS (Waters of the U.S.)
- Private and state enforcement of environmental laws
Mr. Quarles’ presentation is entitled “Public Lands and ESA: Hot Topics and New Challenges,” and will cover:
- Recent legislative action, agency determinations, and judicial decisions affecting decision-making and processes under the ESA and other federal wildlife laws
- Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act
- Role of enforcement and prosecutorial discretion
- The changing mitigation policies for all three laws
CLE credit will be available for both in-person and webcast attendance. Visit ALI’s website to review the full agenda and register. To receive a $200 discount on the regular in-person or full video webcast registration fee, please enter the code ALICLEMK at check-out. We hope you will be able to join Mr. Quarles in Washington for this timely conference.
On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries. Environmental groups brought claims against the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (“ESA”), Migratory Bird Treaty Act (“MBTA”), and the National Environmental Policy Act (“NEPA”). Specifically the Ninth Circuit examined the lower court’s holdings regarding a NMFS biological opinion and an MBTA special purpose permit related to an increase in the total number of shallow-set longline swordfish fisheries. A NMFS biological opinion was required because the increased fishing efforts via longline method may result in incidental take of the Northern Pacific loggerhead sea turtle (Caretta caretta) and leatherback sea turtle (Dermochelys coriacea), both protected under the ESA. The shallow-set longline fishing method also has the potential to take various birds protected under the MBTA. Plaintiffs initiated the lawsuit when NMFS finalized a rule in 2009 that increased the number of shallow-set fisheries allowed. The original lawsuit settled and NMFS withdrew its original biological opinion and the portions of the 2009 rule increasing the fishery limits. After NMFS issued a new biological opinion in 2012, again concluding that the increase in shallow-set fisheries would not jeopardize the continued existence of either turtle species, a second lawsuit was filed.
Although the district court affirmed the USFWS’ issuance of the MBTA special purpose permit and the NMFS biological opinion., the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s MBTA holding and NMFS’ no jeopardy conclusion for the loggerhead sea turtle. With respect to the MBTA claim, the Ninth Circuit found that the USFWS use of the MBTA special purpose permit provisions to authorize incidental take was contrary to the plain language of the regulation and the intent of the MBTA. The court did not squarely examine whether the MBTA applies to incidental take, however, the Department of the Interior Solicitor’s Office recently issued its revised interpretation that the MBTA take prohibition does not extend to incidental take. As for the ESA claim, the Ninth Circuit found that NMFS’ no jeopardy conclusion in the biological opinion for the loggerhead sea turtle had “improperly minimized the risk . . . to the loggerheads’ survival” by evaluating the effects of the proposed increase in longline fisheries against the already deteriorated baseline condition, rather than incorporating the baseline conditions into the jeopardy analysis. The Ninth Circuit also noted that NMFS failed to incorporate climate change data into its jeopardy analysis, thereby further minimizing the cumulative risk to loggerhead sea turtles. The Ninth Circuit, however, rejected plaintiffs’ claims that NMFS failed to adequately consider climate change more generally. While NMFS could not articulate precise climate change effects in its biological opinion, NMFS demonstrated that it did sufficiently take into account a variety of climate change considerations. Judge Callahan dissented in part, stating that USFWS’s application of the MBTA is entitled to deference, and that the no jeopardy conclusion for loggerhead sea turtles was not flawed as the majority found.
As 2018 approaches, the U.S. Fish and Wildlife Service (“Service”) made a few announcements that will likely impact the list of threatened and endangered species. In these last 11 days of 2017, the Service announced 90-day findings on petitions to list or reclassify five species, and 12-month findings on petitions to list or de-list two species under the ESA.
- On December 20, 2017, the Service announced 90-day findings on petitions for five separate species. The Service found that the petitioned actions for each of the five species may be warranted, based on the information presented in each of the petitions. For each of the five species, the Service is requesting additional information on the status of the species, and initiating a status review. Specifically, the Service found that:
- The petition to list the Oblong rocksnail (Leptoxis compacta) as endangered or threatened may be warranted. The rocksnail is found in the Cahaba River, in Shelby County, Alabama.
- The petition to list the Sturgeon chub (Macrhybopsis gelida) and the Sicklefin chub (Macrhybopsis meeki) as endangered or threatened may be warranted. Both are found in parts of Arkansas, Illinois, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, South Dakota, Tennessee, and Wyoming.
- The listing of the Tri-Colored Bat (Perimyotis subflavus) may also be warranted. The bat is found in over 30 states, the District of Columbia, and parts of Canada and Mexico.
- The listing of the populations of venus flytrap (Dionaea muscipula ellis) found in southeastern North Carolina, northeastern South Carolina, and the introduced populations in Florida and New Jersey, may be warranted.
- Corrections to an earlier 90-day finding on a petition to list the leopard (Panthera pardus) as endangered throughout its range were necessary. These corrections clarified that the status review would include all populations of the leopard throughout its range, and that the leopard’s current range encompasses 62 countries in Africa and Asia.
- On December 29, 2017, the Service announced 12-month status review findings on a petition to list the beaverpond marstonia (Marstonia castor) as endangered or threatened, and a petition to remove the southwestern willow flycatcher (Empidonax traillii extimus) from the list of ESA species. With respect to the marstonia, a freshwater snail native to three creeks in Georgia, the Service found that it did not meet the definition of either a threatened or endangered species because it is believed to be extinct. The flycatcher is a small migratory bird that is found in the southwestern United States in parts of California, Nevada, Utah, Colorado, Arizona, New Mexico, and Texas, and was first listed as an endangered species in 1995. Based on a review of the subspecies classifications for the flycatcher, recent studies evaluating diagnostic subspecies characteristics, and evaluating the threats to the flycatcher, the Service found that the flycatcher remains a valid subspecies that meets the definition of an endangered species under the ESA.
On December 22, 2017 the Department of the Interior (“DOI”) Solicitor’s Office issued its revised interpretation of the Migratory Bird Treaty Act’s (“MBTA”) prohibition on the take of migratory bird species. Official opinions from the DOI Solicitor’s Office are known as “M Opinions” and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview. In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” Less than a month after Opinion M-37041 was issued, the Acting Secretary of the Interior issued a memorandum temporarily suspending Opinion M-37041, pending a review by the new Acting Solicitor.
The December 22, 2017 Solicitor’s Opinion, Opinion M-37050, represents the conclusion of the DOI Solicitor’s Office’s review of the MBTA’s prohibition on take and a complete reversal of Opinion M-37041. Opinion M-37050 explicitly states that “this memorandum permanently withdraws and replaces Opinion M-37041.” Significantly, Opinion M-37050 concludes that “consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” (Emphasis added). In other words, take of a migratory bird, its nest, or eggs that is incidental to another lawful activity does not violate the MBTA, and the MBTA’s criminal provisions do not apply to those activities.
Opinion M-37050 will likely have significant ramifications for regulated industries that have wrestled with MBTA compliance, particularly those facing potential incidental take of migratory birds. Check back soon for a more comprehensive analysis of Opinion M-37050.
In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical habitat. The announcements cite Executive Order 13771 – entitled, “Enforcing the Regulatory Reform Agenda” – which articulates the Trump Administration’s policy and commitment to alleviate unnecessary regulatory burden. It can be expected that the forthcoming regulatory revisions will aim to streamline and reduce Endangered Species Act compliance obligations. Please check back here for further coverage of these regulatory developments.