Endangered Species Law and Policy

U.S. Fish and Wildlife Service Delists Magazine Mountain Shagreen

Ashley J. Remillard — Wed, 22 May 2013 08:34:26 -0800

On May 15, 2013, the U.S. Fish and Wildlife Service (Service) removed (pdf) the Magazine Mountain shagreen (Inflectarius magazinensis) from the Federal List of Endangered and Threatened Wildlife. The Service determined that the threats to the species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Endangered Species Act (ESA).

The Magazine Mountain shagreen is a medium-sized, dusky brown or sand-colored snail found on Mount Magazine in western Arkansas. The snail was first listed under the ESA in 1989. According to the Service, the species’ population has remained stable since 1996, largely due to the fact that Magazine Mountain is entirely owned and protected by the U.S. Forest Service and Arkansas Department of Parks and Tourism. The snail is the first invertebrate to be delisted under the ESA.

House Republicans Form Endangered Species Act Working Group

David Miller — Tue, 21 May 2013 10:13:51 -0800

House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY). The ESA Working Group will include a total of 13 republican members from a broad geographic range. It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people and threatened or endangered species and their habitat. Chairman Hastings noted that the ESA Working Group “is an opportunity to . . . have a fair, honest conversation and review of the current law.”

Idaho Enacts Law Declaring the State has Primacy over Resident Fish and Wildlife

Paul Weiland — Thu, 16 May 2013 07:36:29 -0800

The State of Idaho enacted a law (pdf) this spring asserting that the State has “primacy over the management of fish and wildlife.” The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that “introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho.” The law plainly is intended to provide State officials with an additional tool as it negotiates with federal officials regarding threatened and endangered species. As one reporter who covered the enactment of the law explained,

“In theory, the bill gives the state final say on whether or how endangered or threatened plants and animals are introduced in the state. Reality could be different, though…”

(Capitol Press, May 13, 2013 by Sean Ellis.) The Supremacy Clause, Article VI, clause 2, of the U.S. Constitution, establishes that federal law is supreme provided it is consistent with the Constitution. Together with the federal Endangered Species Act, the Supremacy Clause likely limits the effect of this Idaho law.

National Research Council Recommends a Unified Approach to Assessing Risks to Endangered Species from Pesticides

Erik Beck — Wed, 15 May 2013 10:57:34 -0800

The Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As part of this process, the EPA must ensure that the use of the pesticide will not cause any unreasonable adverse effects on the environment, including species protected under the Endangered Species Act (ESA) and designated critical habitat for such species. Often, in order to comply with the ESA, the EPA must consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine whether a pesticide is likely to have an adverse effect on a listed species or its critical habitat. This consultation process has been complicated by the fact that the EPA, FWS, and NMFS have developed their own approaches to evaluating environmental risks.

As a result, the EPA, FWS, NMFS, and the United States Department of Agriculture asked the National Research Council (NRC) to recommend a unified approach to evaluating the environmental risks to listed species posed by pesticides. The NRC is an arm of the National Academies, and is an independent organization whose mission is to inform governmental decisionmaking and public policy in matters involving science, engineering, technology, and health. The NRC recently released a pre-publication copy of its report, entitled Assessing Risks to Endangered and Threatened Species from Pesticides (pdf).

The report concludes that the ecological risk assessment (ERA) process is the preferred approach for evaluating the risks posed by pesticides to listed species. As applied in the ESA context, NRC envisions this process involving three steps: determining (1) whether a pesticide may affect a listed species, (2) whether the affect is likely to be adverse to the listed species or its critical habitat, and (3) whether it is likely to jeopardize the continued existence of a listed species. As part of each step, NRC recommends that the agencies engage in a process of formulating the problem, analyzing the risks of pesticide exposure and the effects thereof, and characterizing these risks.

The report also addresses a number of other issues, including recommendations for identifying appropriate data to be used in assessments, developing more accurate models, and incorporating uncertainty into the assessments.

U.S. Fish and Wildlife Service Proposes Limited Exception to Endangered Species Act Protections for Lesser Prairie-Chicken

Ashley J. Remillard — Mon, 13 May 2013 09:50:57 -0800

On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits grasslands and prairie habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. As previously reported, the Service proposed listing the species as threatened under the ESA in December. The Service reopened the comment period for this proposed rule for an additional 45 days.

The special rule would only be implemented if the lesser prairie-chicken receives ESA protections. According to the Service, the special rule is proposed “in recognition of the significant conservation planning efforts occurring throughout the range of the lesser prairie-chicken for the purpose of reducing or eliminating threats affecting the species.”

The Service also announced the availability of a draft conservation plan that was developed by the Lesser Prairie-Chicken Working Group, which is comprised of states, landowners, and energy developers who have partnered to prevent the bird from becoming listed. The proposed special rule discusses the draft plan, explaining: “For the Service to approve coverage of a comprehensive conservation program under this 4(d) special rule, the program must provide a net conservation benefit to the lesser prairie-chicken population.”

Comments on the proposed special rule, the proposed listing, and the draft conservation plan (as such comments relate to the Service’s listing determination) are due June 20, 2013.

Court Dismisses Suit for Failure to Strictly Comply with 60-Day Notice Requirement

David Miller — Mon, 06 May 2013 13:49:31 -0800

In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat. In dismissing the case, the court held that it lacked subject matter jurisdiction over the matter because plaintiffs’ notice of intent to file the action failed to comply with the ESA’s notice requirements. Noting that the purpose of the ESA’s 60-day notice requirement is to alert the government of alleged violations so that they may be resolved without litigation, the court held that plaintiffs’ notice failed to fulfill that purpose. Specifically, the court held that plaintiffs did not sufficiently inform USFS of the specific alleged violations that they later asserted in their complaint. Plaintiffs’ failure to strictly comply with the notice requirement was an absolute bar to their subsequent action. The court’s holding emphasizes the importance of strict compliance with the 60-day notice requirement prior to challenging alleged violations of the ESA.

U.S. Fish and Wildlife Service Proposes Endangered Species Act Protections for Sierra Nevada Amphibians

Katrina Diaz — Mon, 06 May 2013 11:48:27 -0800

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation, predation, disease, climate change, and other factors impacting the species’ vitality. The Service also determined that Yosemite toad populations are likely to decrease due to habitat degradation and anticipated effects of climate change.

In addition to the proposed listing, the Service also published a proposed rule (pdf) to designate critical habitat for the three species. Specifically, the Service proposed designating over 1.1 million acres of critical habitat for the Sierra Nevada yellow-legged frog, over 200,000 acres for the northern DPS of the mountain yellow-legged frog, and over 750,000 acres for the Yosemite toad. The critical habitat designations include acreage in seventeen counties across California, ranging from Tulare County in the south to Butte County in the north.

Comments regarding either proposed rule must be submitted by June 10, 2013.

New Book Outlines Challenges Southwest Faces Due to Climate Change

Paul Weiland — Thu, 02 May 2013 09:08:48 -0800

The southwestern United States faces a host of challenges as a result of climate change including strained water resources, greater prevalence of tree-killing pests, and potentially significant alterations of agricultural infrastructure. A hotter future is projected for the Southwest—a region stretching from the California coast to the plains of eastern Colorado and New Mexico—and future heat and changes in precipitation will present challenges for managing natural resources, water, infrastructure, and threats to human health. Climate change is already complicating efforts to conserve threatened and endangered species.

Assessment of Climate Change in the Southwest United States, published by Island Press and available for order here, is a landmark study that addresses these issues. It focuses on current climate conditions in the region, the environment of the past, what is projected to change over the 21st century and how this will impact ecosystems, water resources, agricultural production, energy supply and delivery, transportation and human health. I contributed to the preparation of the assessment and co-authored chapter 18, which focuses on climate choices for a sustainable Southwest.

A consortium of researchers from the Southwest Climate Alliance coordinated the assessment; these scientists are affiliated with the National Oceanic and Atmospheric Administration’s Regional Integrated Sciences and Assessment Program and the U.S. Department of the Interior Southwest Climate Science Center. The book blends the contributions of 120 experts in climate science, economics, ecology, engineering, geography, hydrology, law, planning, resource management and other disciplines. This book is one of ten regional technical inputs to the 2013 National Climate Assessment released in draft form earlier this year.

I am pleased to offer our readers a 25% discount when ordering the book through Island Press. Just use discount code 5NCA to get the discount off of this book or any other National Climate Assessment regional technical inputs.

U.S. District Court Dismisses ESA Section 7 Claims Brought Against the EPA

Erik Beck — Wed, 01 May 2013 09:53:22 -0800

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts constituting agency action for purposes of triggering section 7 consultation for each of the 382 pesticides. The court rejected plaintiff’s argument that the EPA’s ongoing discretionary control and authority over the pesticides constituted agency action. To establish that there was a duty to consult, plaintiffs would need to allege specific facts identifying affirmative actions taken by the EPA with regard to each of the challenged pesticides.

The court also held that plaintiffs failed to allege sufficient facts to establish that they had standing to bring the case. As plaintiffs were required to allege specific facts with regard to each individual pesticide in order to invoke the section 7 consultation requirement, the court held that plaintiffs were likewise required to allege facts to establish standing for each individual pesticide. The court reasoned that standing to challenge one pesticide did not establish standing with regard to another pesticide.

In addition, the court held that plaintiffs did not plead sufficient facts to establish that the district court had subject matter jurisdiction over the claims. To the extent that plaintiffs’ “core objections” were to EPA’s pesticide registrations, the suit was governed by the administrative framework of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), not the citizen suit provision of the ESA. The court opined that whether it had subject matter jurisdiction under FIFRA, or whether the claims fell outside the ambit of FIFRA, must be established by plaintiffs with respect to each particular pesticide challenged.

Ninth Circuit Invalidates Consent Decree: Parties Must Go Back to The Drawing Board

Ben Rubin — Tue, 30 Apr 2013 08:53:43 -0800

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade. See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf). In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land spanning from San Francisco to the Canadian border. The plan is intended to protect the long-term ecological health of the forests (including ecologically critical species) while also allowing for sustainable timber production. In order to assess the impact of logging activities, survey and management standards were adopted as part of the Northwest Forest Plan.

In 2007, federal agencies issued final environmental documents supporting the elimination of the survey and management standards. Environmental plaintiffs subsequently sued the federal agencies alleging violations of the National Environmental Policy Act, Endangered Species Act, National Forest Management Act, and Federal Land Policy Management Act. After the district court held that the federal agencies violated the National Environmental Policy Act, the parties began negotiating the terms of a settlement agreement.

Eventually, all of the parties, except for a single intervenor-defendant, agreed on terms and moved for entry of a consent decree. Instead of eliminating the survey and management standards, the settlement agreement proposed to modify the standards. The intervenor-defendant objected to entry of the consent decree on the basis that all modifications to the survey and management standards were statutorily required to go through a public-participation procedure, and entry of the settlement agreement would bypass that process. The district court, rejected this argument and entered the consent decree.

On appeal, however, the Ninth Circuit found the intervenor-defendant's argument persuasive, and reversed the decision of the district court, holding that the district court abused its discretion when it entered the consent decree.

Consent decrees are a common means of settling environmental litigation. They are also, however, a potential means for abuse. In fact, as noted in recent headlines, some members of Congress have proposed to modify the consent decree process in an effort to avoid the potential for abuse. (See our blog post "ESA Legislation Proposed to Prohibit Certain Settlements and Awards.") With all of this bad press, one wonders whether the courts are also starting to distrust consent decrees. (See our blog post "Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet.") Only time will tell.

National Marine Fisheries Service Proposes a Merger of its West Coast Regions

Katrina Diaz — Tue, 16 Apr 2013 09:52:32 -0800

The National Marine Fisheries Service (NMFS) recently proposed merging its Southwest and Northwest administrative regions, which would result in a savings of $3 million annually in management costs. NMFS is a component of the Department of Commerce, and is responsible for administering the Endangered Species Act as it applies to marine species and their habitats. Currently, the NMFS Southwest region manages California, and the Northwest region covers Washington, Oregon, and Idaho. The Obama administration proposed the merger to “improve coordination in areas where there is currently joint decision-making” by the two regions.

The merger could make it more difficult for Californians to access management because the regional headquarters would likely be located in Seattle. However, according to Kevin Chu, a deputy Southwest regional administrator, the Long Beach office would remain open. Also, although there would likely be staff cuts as a result of the merger, Chu claims that the cuts would be achieved through attrition and retirement at the senior level. The change is expected to occur within the next 18 months. (Bettina Boxall, Los Angeles Times (April 9, 2013)).

Federal Court Denies Joint Motion for Consent Decree Regarding the Marbled Murrelet

Ashley J. Remillard — Fri, 12 Apr 2013 06:47:30 -0800

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ESA. The Service designated critical habitat for the species in 1996. In 2008, plaintiffs filed a petition with the Service to delist the tri-state population, arguing the DPS was not sufficiently discrete to warrant ESA protection. After completing a status review in June 2009, the Service concluded the tri-state population was a valid DPS because it was “discrete” and “significant.” Accordingly, the Service determined that delisting was not warranted in January 2010. The Service also revised the critical habitat designation for the species in October 2011. Plaintiffs challenged both the Service’s decision not to delist the species and the critical habitat designation.

With respect to critical habitat, plaintiffs and the Service sought a consent decree, pursuant to which the Service would vacate the 2011 critical habitat designation, and issue a revised designation by September 2018. The court declined to approve the consent decree, concluding that complete vacatur of the critical habitat designation was not a fair and equitable resolution of plaintiffs’ claims or in the public interest.

Plaintiffs also challenged the Service’s 2010 decision, arguing the Service’s conclusion that the tri-state population was “significant” was arbitrary and capricious under the Administrative Procedure Act. Plaintiffs argued that central California murrelets should not be included in the tri-state murrelet population because they are genetically distinct from the other murrelets in the DPS. Plaintiffs further argued that, if the central California population was not included in the tri-state population, the DPS would not be considered “significant” under the ESA. It was undisputed that the Service had not determined whether the central California population interbreeds with other tri-state populations, which would have shown whether the central California population was genetically distinct. In holding for plaintiffs, the court found it was improper for the Service to conclude that the tri-state DPS was significant without determining whether central California murrelets interbreed with other murrelets in the DPS.

The court rejected plaintiffs’ other arguments regarding the Service’s decision not to delist the species, including with respect to its determination that the tri-state DPS is “discrete.”

Federal Court Holds Local Law Preempted By ESA Settlement

Ben Rubin — Thu, 11 Apr 2013 08:30:09 -0800

The Palila (Loxioides bailleui) is a small bird native to Hawaii that was listed as endangered in 1967. In 1998, the U.S. District Court for the District of Hawaii, pursuant to a stipulation submitted by the parties, issued an order requiring the State of Hawaii to conduct semi-annual "aerial sightings" for ungulates (e.g., pigs, deer, sheep, goats, cattle) in the Palila's critical habitat area. Further, if any ungulates are sighted, the order requires the State to "commence aerial shooting" of the ungulates.

In 2012, the County of Hawaii, who was not a party to the stipulation or the underlying Endangered Species Act (ESA) litigation, enacted an ordinance prohibiting "any person to engage in the eradication of any animal for any reason while being transported by helicopter, airplane, or any other similar means." Afraid that compliance with the 1998 order would result in a violation of local law, the parties to the underlying ESA litigation filed a motion with the district court seeking both a declaration that the County ordinance was preempted by federal law, and an injunction prohibiting the County from enforcing the ordinance with respect to activities conducted pursuant to the 1998 order. In opposing the motion, the County not only refused to agree that it would not enforce the ordinance, but also indicated that aerial eradication efforts could potentially be prosecuted under State law.

The district court held (pdf) that, under the Supremacy Clause to the U.S. Constitution, the County of Hawaii was preempted from prosecuting any violation of the 2012 ordinance or State law if the violation occurred as a result of any action to enforce the specific terms of the 1998 order. The district court expressly noted that, while the County of Hawaii was not a party to the original ESA litigation, this did not prohibit the court from issuing an injunction in order to protect its prior decision.

U.S. Fish and Wildlife Service Considers Protection for Black-Backed Woodpecker

Erik Beck — Wed, 10 Apr 2013 15:01:41 -0800

The United States Fish and Wildlife Service (Service) has announced (pdf) that it will conduct a full status review to determine whether protection under the Endangered Species Act (ESA) is warranted for two populations of the black-backed woodpecker (Picoides articus).

The Service's announcement is in response to a petition filed by environmental groups requesting two populations of the species, the Cascades-Sierra Nevada population in California, Oregon, and Washington, and the Black Hills population in South Dakota and Wyoming, be listed as endangered or threatened subspecies under the ESA, and that critical habitat be designated for the populations. The petition also requested that, if the Service did not recognize the populations as subspecies, the populations be considered endangered or threatened distinct population segments.

The Service determined that the petition contained substantial information indicating that both the Cascades-Sierra Nevada population and Black Hills population were potentially listable entities, either as subspecies or distinct population segments.

The black-backed woodpecker largely depends on forest fires for food. The bird has a narrow diet consisting mainly of the larvae of wood-boring and bark beetles. Unable to attack live trees, these beetles concentrate in areas where trees have been burned by forest fires. As a result, black-backed woodpecker populations are low in unburned forests, but increase rapidly following a fire. According to the Service, increased destruction of the bird's habitat due to salvage logging, tree thinning, and fire suppression activities, are contributing to the species' decline.

The Service's status review process is due to be completed in a year.

Court Grants Federal Government Additional Year to Issue New Biological Opinions for California Water Projects

Paul Weiland — Tue, 09 Apr 2013 08:00:16 -0800

On April 9, 2013, the United States District Court for the Eastern District of California ruled (pdf) on a motion (pdf) by the United States and the State of California to extend the period of time to issue new biological opinions regarding the effects of continued operation of the Central Valley Project and State Water Project on a number of fish species listed as threatened or endangered under the federal Endangered Species Act. The U.S. and California sought a three year extension of the time to issue biological opinions that were previously held to be unlawful. The court granted a one year extension and left open the potential to seek two additional one year extensions but only in the event that the court is satisfied that the parties are making "substantial progress" toward developing relevant scientific information in a collaborative manner.

The court required the parties to submit a joint status report detailing their effort to implement the so-called Collaborative Science and Adaptive Management Process (or CSAMP) on or before February 15, 2014. The court explained that at that time it will "entertain a request to extend the remand schedule by an additional year, with the understanding that if substantial progress has been made along the lines outlined by Movants, such an extension will be granted." But the court went on to caution the parties that further extensions may not be granted: "The opposite is equally true. If substantial progress has not been made, further extensions will be nonexistent."

U.S. Fish and Wildlife Service Proposes to Designate Almost 740 Miles of Critical Habitat for the Loggerhead Sea Turtle

Katrina Diaz — Mon, 01 Apr 2013 10:58:53 -0800

On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA). The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi.

The loggerhead sea turtle includes nine distinct population segments (DPS), and the Northwest Atlantic Ocean DPS is currently listed as threatened (pdf) under the ESA. The critical habitat designation would help protect foraging and nesting grounds for the species. According to the Service, the proposed designation is limited to occupied habitat containing "the physical and biological features essential to the conservation of the species in the terrestrial environment." Comments on the proposed designation must be submitted by May 24, 2013.

The National Marine Fisheries Service (NMFS) joined the Service in listing the species in 2011. NMFS is currently evaluating specific areas in the marine environment in order to issue a proposed rule designating in-water critical habitat for the loggerhead sea turtle later this year.

House Republicans Introduce ESA Settlement Reform Bill

Ashley J. Remillard — Fri, 29 Mar 2013 08:36:03 -0800

On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from recovering legal fees.

According to Rep. Flores, the bill is intended to “protect American citizens from the burdensome and costly regulatory impact of closed-door litigation settlements between special interest groups and the U.S. Fish and Wildlife Service.” Similarly, Rep. Conaway stated: “This legislation would … require that local communities have the opportunity to veto any settlements between the [S]ervice and these environmental groups.”

The bill was introduced as companion legislation to Senate Bill 19, which, as we reported here, was introduced by Sen. John Cornyn in February.

Fifth Circuit Stays Injunction in Whooping Crane Case

Paul Weiland — Wed, 27 Mar 2013 15:30:34 -0800

The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA). We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here. At the same time that the court stayed the injunction pending the outcome of the appeal, it expedited the appeal.

U.S. District Court Holds U.S. Fish and Wildlife Service's Decision to Delay Revisions to Critical Habitat Is Not Judicially Reviewable

Erik Beck — Mon, 25 Mar 2013 16:21:33 -0800

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea turtle (Dermochelys coriacea). The United States District Court for the District of Columbia ruled that the Service's decision was not judicially reviewable under either the Administrative Procedures Act (APA) or the Endangered Species Act (ESA). Sierra Club v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D. D.C. March 19, 2013) (pdf).

The leatherback sea turtle has been federally protected since 1970. The Service has designated certain areas within California, Oregon, Washington, and the U.S. Virgin Islands as critical habitat for the turtle.

In 2010, the Sierra Club petitioned the Service to include the beaches and nearby waters of the Northeast Ecological Corridor of Puerto Rico (NEC) as part of the turtle’s critical habitat. Under the ESA, an interested person may petition the Service to designate critical habitat for a protected species. The Service must respond within 90 days with a determination of whether the petition presents substantial scientific information indicating that a revision of the critical habitat for that species is warranted. If the petition presents such information, the Service must announce within 12 months its intentions with regard to the requested action.

In its 90-day response to the Sierra Club’s leatherback sea turtle petition, the Service concluded the petition presented substantial scientific information indicating that revision of the critical habitat designation was warranted. In its 12-month determination, however, the Service stated that it intended to delay revision of the critical habitat until a later date.

The Sierra Club challenged this decision, alleging that it was arbitrary and capricious, and unlawfully delayed agency action.

In granting the Service's motion for summary judgement, the court held that the Service’s 12-month determination is not judicially reviewable. The court reasoned that Congress provided the Service with broad discretion to make critical habitat determinations, and chose not to set any measureable standard to evaluate such determinations. The court concluded that “this type of decision is generally not suitable for judicial review, and neither the [ESA] nor the [APA] provide sufficient guidance for the Court to evaluate the [Service's] determination.” As a result, “[t]he 12-month determination is a decision committed to the agency’s discretion by law, and thus unreviewable” by a court.

California Releases Yet Another Preliminary Draft BDCP

Paul Weiland — Mon, 18 Mar 2013 07:45:44 -0800

On March 14, 2013, the State of California announced (pdf) that it has released the first 4 of 12 chapters of the Bay Delta Conservation Plan (BDCP). California plans to release the next three chapters on March 27, and the remaining five chapters on April 22. The BDCP website notes that the materials being released are preliminary and subject to change, and do not take the place of the public review draft, which will be released at a later date. Preliminary draft versions of the BDCP have been released on several occasions; for example, a complete draft was released in February 2012, as reported here.

The BDCP is a proposal for new water intakes, tunnels, and habitat restoration to reverse the decline of native fish populations in the Delta and provide reliable water deliveries for two-thirds of California’s population. A key component of the BDCP is the construction and operation of new water facilities, including north Delta intakes screened to prevent or reduce fish entrainment and twin 35-mile long tunnels. The chapters released (pdf) indicate that federal and state agencies will analyze tunnels that range in capacity from 3,000 to 15,000 cubic feet per second (cfs).

In January 2013, a coalition including a number of environmental groups and certain public water agencies that service the San Diego and San Francisco metropolitan areas released an alternative (pdf) to the BDCP that includes a single tunnel with a capacity of 3,000 cfs. The released materials indicate that components of this alternative will be considered during the permitting process.