Judge Upholds Service’s Denial of Petition to Delist Golden-Cheeked Warbler

On February 6, 2019, a federal judge upheld U.S. Fish and Wildlife Service’s (Service) 90-day finding that a petition to delist the endangered golden-cheeked warbler (Petition) did not present substantial information that delisting the warbler may be warranted (Negative 90-day Finding). In 2015,  various groups and individuals filed the Petition, which, among other things, alleged that because a 2015 study indicated that the golden-cheeked warbler and its habitat were far more abundant than the Service originally believed at the time of the bird’s listing in 1990, the bird should be delisted. In 2016, the Service issued its Negative 90-day Finding, which acknowledged the increase in the warbler’s numbers and range, but found that threats of habitat loss and fragmentation remained, and that the bird was still at risk of decline due to disease and predation. The General Land Office of Texas then sued the Service alleging three flaws in the Service’s Negative 90-day Finding: (1) the Service violated the Endangered Species Act (ESA) when it listed the golden-cheeked warbler without designating critical habitat; (2) the Service improperly denied the Petition and improperly refused to designate critical habitat; and (3) the Service violated the National Environmental Policy Act by failing to prepare an environmental assessment or environmental impact statement when it initially listed the warbler, when it published the 5-year review of the status of the warbler, and when the Service issued the Negative 90-day Finding.  The court dismissed the first and third claims, leaving only the claim concerning improper denial of the Petition.

Despite information indicating increased abundance of the warbler, the court found that the State did not meet the burden required under the Administrative Procedure Act to overturn the Service’s Negative 90-day Finding. Rather, the court found that the Petition failed to address other threats faced by the golden-cheeked warbler, and the Service was reasonable in relying on these other threats in denying the Petition.

A separate case challenging the Service’s denial of a delisting petition (concerning a small karst invertebrate species) remains under consideration by the U.S. District Court for the Western District of Texas. That case, before Judge Lee Yeakel, alleges the Service violated the Administrative Procedure Act in denying a petition to delist the Bone Cave harvestman. Arguments in that case were held in March 2018.

Independent Scientific Review Under the Endangered Species Act

In an article published online this week in BioScience, the American Institute of Biological Sciences’ scholarly journal, Drs. Dennis Murphy and Paul Weiland contribute to the literature on independent scientific review, focusing on the review of federal agency determinations under the Endangered Species Act. They describe the types of decisions that can benefit from independent scientific review. They also describe past shortcomings in undertaking such reviews, relying on specific examples from past reviews. Identification of such shortcomings feeds into the principal contribution of the article to the literature: identification of nine attributes of successful review. These attributes, described in greater detail in the article linked here, include:

  1. The call for independent science review panels to function as deliberative bodies, with three or more participating reviewers,
  2. Panel representation should offer a balance in skills and expertise, with panelist selection limited by conflict of interest rules,
  3. Use of a third-party science neutral to administer the review,
  4. The development of a robust and clearly delineated task for the panel,
  5. Provision to the panel of sufficient background and other materials to provide context, including materials identified by relevant stakeholders,
  6. Provision of materials that allow the panel to discern the process that the agency followed to make its determination,
  7. Setting review time and resources sufficient to complete the task,
  8. Setting a schedule that is appropriate to the tasking and is neither too late to foreclose incorporation of review input into agency determinations nor too early to allow for meaningful review, and
  9. Requiring the responsible agency to respond to the review in writing.

The authors explain that these nine attributes of successful independent science review should be viewed as a unit. They go on to state that their adoption will contribute to agency efforts to use the best available scientific information, thereby increasing both the legitimacy of agency determinations and the likelihood such determinations will meet pertinent legal requirements.

Frogs or Freedom?

Nossaman Environment & Land Use Partner Brooke Wahlberg recently participated in a panel at the Texas Public Policy Foundation’s 2019 Policy Orientation entitled “Frogs or Freedom: Are New Limitations Coming for the Endangered Species Act?”  Ms. Wahlberg’s segment addressed the U.S. Supreme Court’s ruling in Weyerhaeuser v. U.S. Fish and Wildlife Service and how the case affects impacts on critical habitat.  See below for a brief clip from her presentation.  The full video of the entire panel presentation can be found on The Texas Public Policy Foundation’s website.

The Texas Public Policy Foundation’s Policy Orientation is the premier gathering for all Americans interested in the future of the Lone Star State—and the country.  At Policy Orientation, scholars, experts, and distinguished guests explore in depth the forces shaping our world—how they affect us, and how we may influence them.

USFWS Announces Plans to Revise Hundreds of ESA Recovery Plans

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include “quantitative recovery criteria” as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments, covering 42 species found in eight states (AZ, CA, CO, HI, NM, TX, UT, and WA).

ESA recovery plans are intended to provide a roadmap for listed species’ recovery and to supply guidance to USFWS—as well as states, conservation partners, and affected landowners and industries—on how to minimize threats to the species and move towards recovery. The addition of “quantitative criteria for what constitutes a recovered species” is intended to give USFWS “objective, measurable guidelines” to help determine when a listed species has recovered such that it can be downlisted or delisted altogether.

In its notice of availability, USFWS requests comments on its first tranche of ESA recovery plan amendments by April 1, 2019. A dozen animal species and 30 plant species are covered by those recovery plans, including two Hawaiian seabirds, six Texas karst invertebrates, a Washington pygmy rabbit, and a number of cacti. The USFWS notice of availability requests comments on these draft recovery plan amendments from local, state, tribal, and federal agencies, as well as nongovernmental organizations and the public.

Gray Wolf Listing Under California Endangered Species Act Upheld in California Superior Court

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (“Commission”) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (“CESA”). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an “endangered species” as “a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease.” (Cal. Fish & G. Code, § 2062.)

United States Fish and Wildlife Service photo of gray wolf OR-7

According to the administrative record, gray wolves historically inhabited most of the United States, including much of California, until they were extirpated from California almost 100 years ago. In December 2011, a lone gray wolf known as OR-7 dispersed from northeastern Oregon’s gray wolf population and was observed crossing the Oregon-California border in both directions multiple times. The California Department of Fish and Wildlife (“Department”) projected that gray wolves from Oregon might attempt to establish a breeding population in California in the foreseeable future, but recommended to the Commission that the intermittent presence of an individual gray wolf in California did not warrant listing under CESA. After the Department’s recommendation, the Commission received evidence that OR-7 was traveling with a female mate and at least two gray wolf pups on the California-Oregon border, and that it was highly likely they had been traveling together within California. As we reported here, the Commission rejected the Department’s recommendation, and voted to list the gray wolf under CESA.

Agriculture and ranching groups (California Farm Bureau Federation and California Cattlemen’s Association, respectively) challenged the listing decision on the basis that the gray wolf did not meet the criteria for listing set forth in section 2062; specifically, the groups argued that the listing was improperly based on the presence of a non-native subspecies of gray wolf, that the intermittent presence of a single wolf did not warrant a finding that the gray wolf’s range included California, and that the gray wolf was not at risk of extinction throughout its entire range, which extended beyond California. The court disagreed, holding that section 2062 permits the listing of native species in addition to native subspecies, and that furthermore, the Commission’s scientific finding that OR-7 possessed some genetic markers of a native California subspecies (canis lupus nubilus) was entitled to deference. The court also held that the Commission could reasonably find that listing was necessary to protect the gray wolf from extinction in California based on the intermittent presence of OR-7, the female gray wolf, and the wolf pups, along with the possibility that a breeding population might be established in California in the foreseeable future. Finally, the court followed the California Third District Court of Appeal’s holding in California Forestry Association v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1540, that the term “range” as used in section 2062 refers to a species’ California range, not its total range, and therefore the gray wolf was eligible for listing based on the risk of extinction within California.


Comment Deadline for Proposed Changes to FOIA Regulations Extended by One Day

As we previously reported, more than 150 organizations have requested that the Department of the Interior (DOI) extend the public comment period associated with DOI’s proposed changes to how it will process requests for information under the Freedom of Information Act (FOIA) (Proposed Regulations) by no less than 120 days due, in part, to the partial government shutdown.  Without referencing or responding to these multiple requests, DOI announced that it will extend the comment period for the Proposed Regulations by a single day. According to the announcement from DOI, the comment period will now close on January 29, 2019 due to a “technical glitch” that occurred earlier this month, as well as to “ensure interested parties have the full 30 days to submit their responses” to the Proposed Regulations.

On Wednesday, Congressman Raul Grijalva (D-AZ), chairman of the House Natural Resources Committee, delivered a letter to the acting Secretary of the Interior, David Bernhardt, requesting public hearings on the Proposed Regulations, as well as an extension of the public comment period.  In his letter, Grijalva states that Americans are being denied the opportunity to “be fully engaged” in DOI’s rulemaking process.

As of this morning, more than 2,700 comments have been received by DOI; however, none of the comments have been posted for public review on regulations.gov due to a lapse in funding for the site caused by the partial government shutdown.  While the White House and both houses of Congress have reached an agreement to end the partial government shutdown, it remains unclear how the affected agencies, including DOI, will contend with the backlog of work amassed during the shutdown.

Shutdown Affecting ESA Policy and Compliance; Private Projects Feeling the Pinch

The longest partial government shutdown in United States history is taking its toll on Endangered Species Act (ESA) policy initiatives championed by the Trump Administration, and is making ESA compliance and project completion significantly more difficult for a wide spectrum of industries. In July 2018, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service published proposed changes to ESA implementing regulations relating to species listings, de-listings, critical habitat designations, and consultations under section 7 of the ESA. The comment period on these proposed regulatory changes closed in September 2018, and more than 200,000 public comments were logged. Addressing the thousands of public comments on USFWS’s proposed revisions to ESA regulations is just one of many tasks that has stalled while USFWS and other Department of the Interior (DOI) personnel wait for an end to the partial government shutdown. As we previously reported, thousands more comments have been received by DOI agencies in connection with various ESA-related proposals, such as designation of critical habitat for the endangered candy darter, revisions to regulations governing how Freedom of Information Act requests are processed, and revisions to greater sage grouse management plans.

The shutdown’s impact on ESA permitting and regulation are not hypothetical—regulated entities are already seeing consultation and permitting requests grind to a halt. Because most USFWS personnel have been furloughed in accordance with the USFWS Contingency Plan, USFWS is not processing requests for formal or informal consultation under the ESA—a process critical for a wide variety of private projects, including transmission lines, pipelines, and highway and other infrastructure projects. Similarly, non-federal entities that applied to USFWS prior to the shutdown for incidental take permits, pursuant to section 10 of the ESA, have found that the process is frozen. For some project proponents, these kinds of delays have imposed significant costs. For others, the delay and inability to complete the ESA section 7 consultation process or to obtain an incidental take permit during the shutdown may result in abandoning projects altogether.

At present, there is no clear plan for how to address the growing backlog of projects that await ESA permit decisions or consultation once the shutdown ends.

Partial Government Shutdown Slows Endangered Species Act Administration

The effects of the partial Federal government shutdown are being felt at the U.S. Fish and Wildlife Service (“Service”). The shutdown has virtually halted the Service’s processing of pending rulemakings under the Endangered Species Act (“ESA”). As an example, while the comment period on the Service’s proposed designation of 370 miles of critical habitat for the endangered candy darter (Etheostoma osburni) — a freshwater fish found in portions of West Virginia and Virginia — ran from November to January, the Service has posted only a handful of responsive comments online, with the online regulations site, regulations.gov, having ceased updates due to a lapse in funding. Similarly, the Environmental Conservation Online System, a site providing information on endangered and threatened species that are either listed under the ESA or proposed for listing that is hosted by the Service, is now offline. According to the Service’s Contingency Plan, the majority of the Service’s employees have been furloughed.

Shutdown Prompts Requests to Extend Comment Deadline for Proposed Changes to FOIA Regulations

On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been received by the DOI, but due to the shutdown, none of those comments have been posted for public review on regulations.gov., as is the common practice.  Earlier this week, citing the government shutdown, more than 150 organizations and individuals requested that the DOI extend the public comment period by no fewer than 120 days.

FOIA is often used by both Endangered Species Act (ESA) practitioners and environmental litigants to obtain information regarding proposed or existing listings, critical habitat designations, consultations, and permitting actions. Practitioners and litigants alike have a vested interest in how FOIA is applied. For example, in a leaked September 6, 2018 memorandum from the U.S. Department of Justice (DOJ) to the U.S. Fish and Wildlife Service (Service), the DOJ asked the Service to limit public access to records relating to deliberations on how certain species would or should be protected under the ESA. Conservation groups have argued that the underlying purpose of the memorandum is to use FOIA’s exceptions to disclosure as a way to prevent the public from discovering political interference with what should be scientific decisions.

As of January 16, 2019, the DOI has not yet extended the public comment deadline on its proposed changes to the FOIA regulations, and has not provided any indication of whether or not it intends to do so.