Endangered Species Law and Policy

Ninth Circuit Overturns Grazing Regulation Amendments for Violation of Endangered Species Act

Audrey Huang — Thu, 02 Sep 2010 10:30:55 -0800

In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations. The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National Environmental Policy Act by failing to take a "hard look" at the environmental impacts of the proposed regulations and arbitrarily concluded that the proposed regulations would have no significant environmental impact.

BLM began the process of amending the grazing regulations in 2002 and assembled a total of three interdisciplinary teams to review the proposed changes. Two of these teams criticized the new regulations and concluded they would ultimately lead to environmental harm and would cause a "slow long-term adverse effect on wildlife and biological diversity in general." BLM ignored these conclusions and in 2006 issued a final rule (PDF) adopting the proposed regulations. The 2006 regulations made three principal changes to the regulations: (1) they decreased the level of public input in public rangelands management, (2) they generally made it more difficult for BLM to conduct environmental enforcement on public rangelands, and (3) they ceded ownership rights to permanent rangeland structures and water from the United States to private ranchers. With respect to the ESA, BLM concluded that the 2006 regulations were merely administrative and would not have an effect on listed or candidate species or proposed or designated critical habitat and therefore no consultation with FWS was required under section 7 of the ESA.

Section 7 of the ESA requires a federal agency to consult with the Service if the federal agency determines that any action on its part may affect any listed species or designated critical habitat. Here, the Ninth Circuit found that BLM's conclusion that the 2006 regulations would not affect listed species or critical habitat was arbitrary and capricious. First, the court noted that the "sheer number of acres affected by the 2006 Regulations and number of special status species who reside on those lands alone suggest that the proposed amendments 'may affect' a listed species or its critical habitat." Second, the Service itself concluded that the 2006 regulations would affect special status species and their habitat. The Service was primarily concerned with the decrease of public input and change in water ownership, which would reduce habitat quality and have a long-term adverse effect on wildlife. Third, even BLM's own scientists advised the agency that a section 7 consultation was necessary. Finally, plaintiffs submitted extra-record testimony that the regulations would have an adverse effect on wildlife and biological diversity, listed salmonids, and many listed bird species. Therefore, the court concluded that BLM had no rational basis to conclude that the 2006 regulations would not affect listed species or their habitat.

Ninth Circuit Affirms Steelhead Listing Decision that Excludes Resident Rainbow Trout

Ben Rubin — Mon, 23 Aug 2010 12:51:20 -0800

On August 20, 2010, the United States Court of Appeals for the Ninth Circuit held that the National Marine Fisheries Service ("NMFS") did not violate the law when it omitted resident rainbow trout from the Distinct Population Segment of California Central Valley steelhead ("CV Steelhead"), despite the fact that rainbow trout and steelhead are the same species and can interbreed. The court affirmed NMFS's listing of the DPS Steelhead as a threatened species under the Endangered Species Act ("ESA").

In order to be listed as a threatened species, the ESA requires that, based on the best scientific information available, a species will, within the foreseeable future, likely be in danger of extinction throughout all or a significant portion of its range. The ESA defines the term "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

In 1991, in an attempt to define what would qualify as a DPS for Pacific salmon, NMFS promulgated a policy stating that a salmon stock will qualify as an evolutionary significant unit ("ESU") if (1) it is "substantially reproductively isolated from other nonspecific population units"; and (2) it "represents an important component in the evolutionary legacy of the species." In 1996, however, NMFS and the Fish & Wildlife Service ("FWS") adopted a joint policy setting forth multiple factors that must be considered when determining whether any animal, bird or fish species will qualify as a "distinct population segment." And, unlike the 1991 ESU policy, which required that a salmon species be "substantially reproductively isolated," the 1996 DPS policy authorized placing a species in its own distinct population segment so long as it was "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors." Despite the promulgation of the 1996 DPS policy, however, both NMFS and FWS agreed to apply the 1991 ESU policy to Pacific salmon.

In 1997, applying the ESU policy, NMFS determined that interbreeding steelhead and rainbow trout should be classified in the same ESU because they were not "substantially reproductively isolated." However, this determination created difficulties for NMFS, because while the rainbow trout was thriving in many areas of California, certain steelhead populations were plummeting rapidly. Further, given the thriving status of the rainbow trout, FWS opposed listing any ESU containing both steelhead and rainbow trout. In an effort to sidestep this controversy, whenever an ESU contained both rainbow trout and a dwindling steelhead population, NMFS made a practice of only listing the steelhead population within the ESU as a threatened or endangered species.

In 2001, however, a federal district court invalidated this practice, holding that the ESA requires an agency to list an entire DPS or ESU. In response to the district court's ruling, starting in 2004, NMFS proposed listing entire salmon ESU's as threatened or endangered, regardless of whether the rainbow trout population was thriving. Shortly thereafter, FWS sent NMFS a letter recommending that NMFS stop applying the ESU policy, and start applying the joint 1996 DPS policy so that steelhead could be treated as a separate DPS from rainbow trout. Around the same time, new scientific reports emerged concluding that while rainbow trout and steelhead may interbreed, it was unlikely that rainbow trout could reestablish a steelhead population. In response to this information, NMFS reported in early 2006 that it would abandon use of the ESU policy for steelhead, and instead list the CV Steelhead as a DPS.

A group of central valley irrigation districts filed a lawsuit in federal court challenging both NMFS's policy shift and the listing determination, arguing that because steelhead and rainbow trout interbreed and can look virtually identical, the Service was required to treat them as a single species. The Ninth Circuit rejected the challenge, finding that NMFS's interpretation of the ESA was entitled to Chevron deference, and concluding that "under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently." While the Ninth Circuit held that NMFS was required by law to provide an explanation for its policy shift, the court went on to find that the "decision to adopt the DPS Policy . . . was supported by the record and sufficiently explained."

Fish and Wildlife Service Determines Listing May be Warranted for Plant Species Endemic to San Francisco Peninsula and Believed Extinct for Over 50 Years

Paul Weiland — Sun, 22 Aug 2010 20:15:26 -0800

The U.S. Fish and Wildlife Service recently made a 90-day finding (PDF) that a petition to list the plant species Arctostaphylos franciscana presents substantial scientific or commercial information indicating that listing this species may be warranted. Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family that is endemic to the San Francisco peninsula in California. The species was presumed extinct since 1947 when it was last seen in the wild, but, in October 2009, an ecologist identified a plant growing in a concrete-bound median strip along Doyle Drive in the Presidio (a former army post located in San Francisco) as Arctostaphylos franciscana.

Soon after discovery of the individual specimen of the species in October 2009, the Wild Equity Institute, the Center for Biological Diversity, and the California Native Plant Society petitioned (PDF) for its listing as endangered on an emergency basis. At the same time, they asked the Service to proceed to designate critical habitat for the species under the Act.

The Service is seeking input to inform its review on or before October 12, 2010.

Fish and Wildlife Service Finds Delisting of Stephens' Kangaroo Rat Not Warranted

Lauren Valk — Fri, 20 Aug 2010 12:44:31 -0800

The Fish and Wildlife Service announced on August 19, 2010 that it will not be removing the Stephens’ kangaroo rat (Dipodomys stephensi) from the Federal List of Endangered and Threatened Wildlife. This decision constitutes the Service’s 12-month finding (PDF) on a petition submitted by the Riverside County Farm Bureau in 2002 to delist the species as endangered.

The Stephens' kangaroo rat is a burrow-dwelling nocturnal mammal that inhabits arid and grassy habitats in western North America. It is known to occur at lower elevations of the dry inland valleys west of the Peninsular Ranges of southern California. At the time of listing in 1988, the species’ geographic range encompassed the Perris, San Jacinto, and Temecula Valleys in western Riverside County, and the San Luis Rey Valley in San Diego County. Since listing, additional populations have been found near the Silverado Conservation Bank in western Riverside County and Rancho Guejito and Ramona Grasslands in San Diego County.

According to the Service, delisting is not warranted at this time because the criteria provided in the draft recovery plan (PDF) for delisting the species have not been met. The criteria includes (1) establishment of a minimum of five reserves, one of which is ecosystem-based, in western Riverside County that encompass at least 16,500 acres of occupied habitat that are permanently protected, funded, and managed; and (2) establishment of two ecosystem-based reserves in San Diego County, one in the Western Conservation Planning Area and one in the Central Conservation Planning Area, which are permanently protected, funded, and managed.

Ninth Circuit Rejects Challenge to Vernal Pool Critical Habitat; Limits Scope of Economic Impact Analysis

Robert Thornton — Wed, 11 Aug 2010 09:12:19 -0800

For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (“ESA”). In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that “adversely modify” critical habitat. The court rejected Home Builders’ claim that the ESA limited the designation of critical habitat to those areas that contain all (rather than some) of the physical or biological features essential to the conservation of the vernal pool species. The court also rejected the claim that, in designating critical habitat, the Fish and Wildlife Service is required to determine when the protected species are required to be conserved. Following its recent decision in Arizona Cattle Growers’ Assn. v. Salazar, 606 F.3d 1160 (9th Cir. 2010), the court upheld the Service’s analysis of the economic impacts of the critical habitat designation. The court concluded that, unlike the National Environmental Policy Act, the ESA does not require the Fish and Wildlife Service to evaluate cumulative impacts of the critical habitat designation.

Court Sets Aside Rule Delisting Gray Wolf

Audrey Huang — Fri, 06 Aug 2010 15:41:13 -0800

The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming. The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy.

The gray wolf was listed as endangered under the ESA in 1974. The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s. Under the Bush Administration, the Service sought to delist the wolf in 2008 (including the Wyoming wolves), but environmental plaintiffs successfully enjoined implementation of that rule. The 2009 Final Rule removed ESA protection for the gray wolves in Idaho and Montana, but preserved protection for the Wyoming Wolves noting that the state's regulatory framework failed to meet the ESA's requirements.

In challenging the 2009 Final Rule, plaintiffs argued that the Service had violated the ESA by listing something less than a DPS (by only protecting the Wyoming wolves and excluding Idaho and Montana) as endangered and that the definition of a "species" is nothing smaller than a DPS. The Service defended its listing decision arguing that the ESA allows for listing of part of a DPS because the term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range. The court explained that the Service's argument could not be reconciled with the plain reading of the ESA and that the term "species" excludes distinctions below that of a DPS. The court further concluded that the Service's interpretation of the ESA was not deserving of deference and was unreasonable.

Fish and Wildlife Service Lists Five Species of Penguin as Threatened

Robert Horton — Fri, 06 Aug 2010 10:36:44 -0800

In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule on August 3, 2010 listing five species of penguins as "threatened" under the Endangered Species Act. Specifically, the Service determined that the yellow-eyed, white-flippered, Fiordland crested, Humboldt, and erect-crested penguins are likely to become in danger of extinction within the foreseeable future.

None of the five species is native to the United States, and therefore no critical habitat is designated for the listed species. Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on listed penguins. The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.

Some contend that anthropogenic climate change is a major threat to the survival of the penguins. While the Service acknowledged that the evidence of warming of the climate system is unequivocal, it concluded that the best available information does not indicate how increased sea level rise, ocean warming, or ocean acidification may affect the five penguin species. Instead, the Service determined that other threats such as predation by introduced species, habitat loss, overfishing, unregulated ecotourism, and El Niño events were responsible for the population declines.

Under the terms of the settlement agreement, the Service must issue final rules regarding listing of the African penguin by September 30, 2010, and listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.

Center for Biological Diversity to Challenge New Army Corps Levee Vegetation Clearing Policy

Brad Kuhn — Wed, 04 Aug 2010 05:21:30 -0800

After Hurricane Katrina, the U.S. Army Corps of Engineers made major changes to its nationwide levee policies, including new standards in 2009 banning vegetation on or within 15 feet of levees. Earlier this year, the agency adopted a variance policy requiring trees and bushes to be removed by September 30 unless a new variance was granted, forcing levee owners and operators to scramble to meet the deadline. According to a recent notice of intent to sue letter issued by the Center for Biological Diversity, this new variance deadline may be impossible to meet for many levee owners or operators, and therefore could lead to the removal of all levee vegetation regardless of whether or not environmental review and consultation with the federal wildlife agencies has been completed.

The Center for Biological Diversity's press release announces that levee vegetation provides important habitat to listed California's threatened and endangered species, and therefore the Corps is required to consult with the federal wildlife agencies pursuant to the Endangered Species Act before moving forward with the new policy. Jeff Miller, a conservation advocate at the Center, is quoted as saying:

Levee safety can be achieved without a scorched-earth policy that will destroy habitat for struggling species like salmon, steelhead trout, and willow flycatchers. The Corps has failed to consult with federal wildlife agencies about the impacts of vegetation-free zones on California’s endangered species. It’s left too little time for levee operators to get new variances.

A related, contentious issue is whether vegetation actually impairs levees, or whether some vegetation can actually help stabilize them.

The Federal Government Loses Another Round in the Litigation over Fire Suppression on Forest Service Lands

Paul Weiland — Tue, 03 Aug 2010 21:27:40 -0800

The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands. The decision is described in this article.

In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA. In response the Forest Service Employees for Environmental Ethics filed another lawsuit.

Both the Fish and Wildlife Service and National Marine Fisheries Service issued programmatic biological opinions that included jeopardy and adverse modification determinations for numerous species. Neither agency issued an incidental take statement to accompany its biological opinion, but both agencies issued a reasonable and prudent alternative (RPA) pursuant to section 7(b)(3)(A) of the ESA.

The Court invalidated the RPA issued by the Fish and Wildlife Service because the RPA was based on guidance rather than mandatory restrictions that left ultimate discretion to the action agency and “elevated fire suppression over the protection of jeopardized listed species.” In addition, the court granted summary judgment to plaintiffs because both agencies failed to issue incidental take statements. The court was not persuaded that the Fish and Wildlife Service RPA or subsequent emergency consultations by NMFS would be sufficient to protect the species absent incidental take statements.

The court also rejected the Forest Service’s FONSI “because the jeopardy findings of the ESA agencies constitute significant impacts that are not alleviated by the [RPA].” The court required the agencies to comply with the requirements of the ESA and NEPA by December 31, 2011.

New Lawsuit Challenges Secretary's Assumption that Large Oil Spills are Unlikely

Ben Rubin — Thu, 29 Jul 2010 19:19:23 -0800

On July 26, 2010, the Center for Biological Diversity filed another lawsuit challenging the Department of the Interior's regulation of offshore drilling, alleging that the Department failed to properly assess potential impacts on endangered and threatened species from large scale oil spills. The lawsuit, which was filed in the United States District Court for the District of Columbia, attacks the "policy" and "decisions" of the former Minerals Management Services (now the Bureau of Ocean Energy Management, Regulation, and Enforcement) that exploration drilling poses de minimis risk to endangered and threatened species, and therefore is subject to a categorical exemption from full environmental review. The lawsuit seeks to prohibit the use of such categorical exclusions for future drilling projects, and force the Department to conduct a "full and adequate" environmental analysis.

National Research Council Bay-Delta Committee Update

Paul Weiland — Fri, 23 Jul 2010 09:11:22 -0800

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee. The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith. A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task. The agenda for that meeting is available here. At the July 13 meeting, representatives of the federal government asked the Committee to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP). The draft BDCP is due out in late 2010. A schedule for completion of the BDCP is available here. It is unclear whether the Committee will agree to take on the additional task proposed by the federal government. It is also unclear whether Congress must authorize the proposed change to the Committee's existing task statement and appropriate additional funding for the purpose of completing the additional task.

Campaign to Use Endangered Species Act to Regulate Greenhouse Gas Emissions Marches On

Robert Horton — Thu, 22 Jul 2010 21:53:55 -0800

In an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here, to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post, Fish and Wildlife Service's to Review Prospect of Listing Whitebark Pine Due to Climate Change, the Service recently announced a 90-day finding that listing the whitebark pine as endangered or threatened due to climate change may be warranted. In addition, the Fish and Wildlife Service may adopt rules listing several species of penguins due to climate change. The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. But the Fish and Wildlife Service declined to list the American pika as endangered or threatened due to climate change.

As Mr. Woody notes in his article, these listing decisions have been spurred by petitions and lawsuits filed by several environmental organizations with the aim of not only protecting the species from extinction, but utlimately requiring the Services to require emitters of GHG to reduce or mitigate their emissions. But, so far, the utimate aim has been frustrated by resistance from both the Bush and Obama Administrations and doubts about the validity of the legal theory underlying the overarching strategy.

Fish and Wildlife Service to Review Prospect of Listing Whitebark Pine Due to Climate Change

Audrey Huang — Tue, 20 Jul 2010 13:31:28 -0800

The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted. The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008. It filed a lawsuit in March 2010 to force the Service to act on the listing petition. In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine. According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by climate change, including being attacked by mountain beetles that are now capable of moving to higher elevations due to rising temperatures.

The Service's decision initiates a 60-day period for the public to provide information on the status of the species. After the Service has conducted its status review, it will issue a 12-month finding on the petition, which will address whether listing is warranted. The Service's 90-day finding does not necessarily mean that the Service's 12-month finding will result in a "warranted" conclusion because the 12-month finding is based on a more rigorous "best scientific and commercial data" standard.

The Service's decision is one of several recent listing decisions involving climate change. The Service may adopt rules listing several species of penguins due to climate change. The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. However, the Service declined to list the American pika as endangered or threatened due to climate change.

District Court Finds Biological Opinion for Water Diversions on Yuba River Arbitrary and Capricious

Audrey Huang — Mon, 19 Jul 2010 13:14:56 -0800

In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection between the factual determination that the project would perpetuate unmitigated stressors and the conclusion that those stressors would not jeopardize the listed fish. The court reiterated that an agency action can only “jeopardize” a species’ existence if that “agency action causes some deterioration in the species’ pre-action condition,” but that these effects can only be understood in the context of the current status of the species, the environmental baseline, and future cumulative effects. The court held that in order to determine that other stressors identified in the BiOp will not cause a decline in the identified viability factors for the species, “the BiOp must discuss (through some method) the magnitude of the stressors’ impact, the populations’ ability to tolerate this impact, and the reason why any decline will not reduce the overall likelihood of survival or recovery.”

The court also found that the BiOp failed to consider various other aspects of the problem, including hatcheries, the San Francisco Bay Delta, poaching, the species’ overall viability, and global warming. The court found that evidence in the administrative record suggested that each of the first four stressors is one that is likely to adversely affect the listed species and that failure to consider the effect of the stressor on the listed species rendered the BiOp’s no-jeopardy conclusion arbitrary and capricious. As to global warming, the court stated that it “cannot conclude that global warming’s potential impacts are so slight that NMFS could ignore them without discussion” and that while the BiOp discussed present impacts on water temperature, it did not address whether global warming will alter temperature or flow. Therefore, by failing to discuss global warming, NMFS failed to address an important part of the problem.

With respect to the BiOp’s critical habitat analysis, “the BiOp concluded that the project would not adversely modify critical habitat because the project’s net ‘impacts’ on habitat were at worst neutral when measured against conditions immediately preceding the BiOp.” The court concluded that this conclusion was arbitrary and capricious as the court could not discern the reason underlying the critical habitat analysis.

Another Lawsuit Filed Challenging the Federal Emergency Management Agency's Compliance With The Endangered Species Act

Ben Rubin — Wed, 14 Jul 2010 07:48:07 -0800

On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act. Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and commercial development along Florida's beaches," which "impairs essential habitat functions of five species of threatened or endangered sea turtles." The plaintiffs seek an order compelling FEMA to, among other things, consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to insure that the implementation of the NFIP does not jeopardize the threatened and endangered sea turtles.

Similar actions have been filed throughout the United States, some of which have resulted in published decisions ordering FEMA to consult with federal wildlife agencies. For example, on April 1, 2008, the U.S. Court of Appeals for the Eleventh Circuit held that FEMA was required to consult with federal wildlife agencies regarding its administration of the NFIP because of potential impacts to various endangered and threatened species located in the Florida Keys. Similarly, in 2004 the United States District Court for the Western District of Washington held that FEMA was required to consult with the National Marine Fisheries Service regarding its administration of the NFIP because of potential impacts to the Puget Sound chinook salmon.

In addition to the latest lawsuit filed by the National Wildlife Federation and Florida Wildlife Federation, in 2009 WildEarth Guardians filed two similar lawsuits against FEMA in the United States District Court for the District of Arizona and the United States District Court for the District of New Mexico. That same year, a similar lawsuit against FEMA was also filed in the United States District Court for the District of Oregon, and the Coalition for a Sustainable Delta and Kern County Water Agency filed a similar lawsuit against FEMA in the the United States District Court for the Eastern District of California. Except for the litigation filed in the District of Oregon, all of these matters are currently pending resolution; the Oregon matter is now resolved as the result of a stipulated settlement.

Ninth Circuit Says Endangered Species Critical Habitat Not LImited to Where the Species Resides; Agency May Restrict Analysis of Economic Costs of Critical Habitat

George Mannina — Thu, 01 Jul 2010 10:32:06 -0800

In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (“Service”) determination that under the Endangered Species Act (“ESA”), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time. That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as “occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a “baseline” approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

The Ninth Circuit began its analysis by citing the ESA’s definition of critical habitat, which includes (1) specific areas within the geographical area occupied by the species at the time it is listed which have physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection and (2) areas outside the geographical area occupied by the species at the time listed that are essential for the conservation of the species. In order for these latter “unoccupied” areas to be designated, they must be “essential for the conservation of the species.” Arizona Cattle Growers’ argued that the Service treated unoccupied areas as occupied to avoid the more stringent requirement for designating unoccupied areas.

The court stated that whether an area is “occupied” consists of two components, frequency and uncertainty. Frequency is a factor when owls are shown to have only an intermittent presence in an area and uncertainty is a factor when the Service has reason to believe that owls are present in an area, but lacks conclusive proof of their presence. With respect to the frequency component, the court rejected the argument that “occupied” must be interpreted to mean areas that the species “resides in” and stated that the Service has “has authority to designate as ‘occupied’ areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time.” The court reaffirmed its ruling in Gifford Pinchot Task Force v. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), that critical habitat is not limited to areas necessary for the species’ survival but also includes areas necessary for the conservation, i.e., recovery, of the species.

The only limitation the court placed on designating critical habitat is that the Service cannot determine that “areas unused by owls are occupied merely because those areas are suitable for future occupancy.” However, the court noted that determining whether an area is occupied or merely will be occupied in the future is complicated in the context of migratory species, and that the “fact that a member of the species is not present in an area at a given instant does not mean that the area is suitable only for future occupancy if the species regularly uses the area.” Given that vast land areas of the United States are part of the migratory bird flyways, the court’s opinion paves the way for all of these areas to become critical habitat for listed species.

As to the uncertainty factor in designating critical habitat, i.e., the data needed to support a decision, the court held the Service is not required to justify its decision “with absolute confidence” because the “ESA accepts agency decisions in the face of uncertainty.” Giving the Service vast discretion, the court said that “factual questions” of whether an area is used with sufficient frequency to be critical habitat “are within the purview of the agency’s unique expertise.” This standard would apply to all agency decisions under the ESA.

Finally, the court addressed the ESA provisions that the Service can exclude areas from critical habitat based on the economic burden of the designation, unless exclusions would result in extinction of the species. At issue was whether the Service was required to attribute to the critical habitat designation those economic burden that would exist even in the absence of the designation. Arizona Cattle Growers argued that any economic burden from designating an area must be counted in the economic analysis, even if the same burden is already imposed by listing the species, and would exist even if the area were not designated. Arizona Cattle Growers cited the Tenth Circuit’s decision in New Mexico Cattle Growers’ Association v. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). The Ninth Circuit rejected approach adopted by the Tenth Circuit and held that the Service permissibly attributed the economic impacts of protecting the owl as part of the baseline and was not required to factor those impacts into the economic analysis of the effects of the critical habitat designation.

Environmental Groups Bring ESA Suit Against First U.S. Offshore Wind Project

Robert Horton — Tue, 29 Jun 2010 08:36:26 -0800

After nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.

But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal district court for the District of Columbia to block construction of the Cape Wind project. The coalition alleges that the Minerals Management Service and U.S. Fish and Wildlife Service violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), Migratory Bird Treaty Act, and the Administrative Procedure Act (APA). Specifically, the coalition claims that the biological opinion (PDF) for the project will unlawfully allow the project to "take" Roseate Terns and Piping Plovers without sufficient safeguards based on the best available science and the Service’s own determination of reasonable and prudent measures to minimize take such as shutting down the turbines during peak periods of migration through the Nantucket Sound.

The lawsuit illustrates the hurdles that renewable energy projects often face, even after years of federal, state, and local permitting and environmental review. Although many environmental groups support the Cape Wind project, e.g., Natural Resources Defense Council, Friends of the Earth, World Wildlife Fund, and Greenpeace USA, every renewable energy project will have some adverse environmental impacts, and is therefore vulnerable to citizen suits, well founded or not, under the panoply of environmental laws that apply to energy projects.

Once completed, Cape Wind will be the first offshore wind energy project in the United States. The project consists of 130 3.6 megawatt turbines arranged in a grid, located in shallow waters near the center of Nantucket Sound. It is expected to produce a maximum of 454 megawatts, whereas the average expected production will be 170 megawatts which is almost 75% of the 230 megawatt average electricity demand for Cape Cod and the Islands of Martha’s Vineyard and Nantucket.

Most modern wind turbines are enormous, and will most likely impact birds no matter where they are located, whether off shore, along ridge lines, or in deserts where winds tend to be the strongest and most regular. For instance, for the Cape Wind project, the lowest blade tip height will be 75 feet above the surface of the water and the highest blade tip height will be 440 feet above the surface of the water. Thus, the blades for each turbine sweep through a large area above the water while operating. As a result, such facilities often require take authority under state and federal endangered species laws as well as the Migratory Bird Treaty Act.

Fish & Wildlife Service Seeking Approximately $3 Million for Unprecedented Kill of Endangered Species

Ben Rubin — Sun, 27 Jun 2010 15:48:07 -0800

On June 24, 2010, the Fish & Wildlife Service issued a Notice of Violation to the City of Birmingham, Alabama for allegedly killing an estimated 11,700 endangered watercress darters, and injuring approximately 8,900 others, in a single incident in 2008. The Service is seeking $2,975,000 in civil penalties as a result of the incident.

The watercress darter is found in only five spring brooks and spring pools in Birmingham, Alabama. In September 2008, a Birmingham maintenance crew allegedly breached an earthen dam and drained a spring pool, stranding and killing thousands of watercress darters. The incident resulted in the loss of more than half of the largest known population of the species.

The City of Birmingham has 45 days to either pay the proposed civil penalty, initiate informal negotiations with the Service, or file a Petition for Relief in accordance with the Service's regulations.

California Court of Appeals Holds State Agencies are Subject of California Endangered Species Act

Paul Weiland — Thu, 17 Jun 2010 21:08:32 -0800

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term “person” in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that “a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the California Department of Fish and Game.” The court decided the matter – despite the fact that DWR complied with the trial court’s writ and obtained proper authorization from the California Department of Fish and Game thus rendering the case moot – due to the importance of the issue.

Gulf of Mexico Oil Spill and Its Implications

George Mannina — Wed, 09 Jun 2010 13:13:20 -0800

Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the largest spill in U.S. history

Already oil is washing ashore along the Gulf Coast states, but the damages were felt from the very first days of the spill. Many charter boat fishermen watched helplessly as virtually all of their spring, summer, and fall bookings canceled. The multi-million dollar shrimp fishery, together with other major Gulf commercial fisheries, face economic ruin as the spreading oil approaches critical nursery and habitat areas. Federal and state agencies are mobilizing for the expected strandings of marine mammals and other wildlife populations. Valuable wetland and marsh areas may be lost.

Sadly, scientists who assess and manage all of these resources have varying degrees of data to assess the impacts of the spill. In the case of the deep ocean ecosystem where much of the spilled oil resides, scientific knowledge is spotty at best. It may be years before the full impact of this spill on the Gulf’s ecosystem is known. In some instances, we may never know because we do not have the environmental baseline data for the environment that existed before the spill.
Federal and state agencies are in the process of assessing the economic and environmental damages from the spill. But if the Exxon Valdez case is any guide, it could be 20 years before we finish the legal battles regarding who pays and what environmental restoration is required. Chief among these battles will be the process by which natural resource agencies assess natural resource damages (“NRD”) under the Oil Pollution Act (“OPA”). The OPA NRD provisions parallel those in Superfund. However, Superfund’s NRD provisions have generated substantial debate about the process by which damages are assessed and one can expect this debate to be replayed in OPA with respect to the Gulf spill. Already industry and environmental experts are lining up for what promises to be an epic battle.

Members of Congress are also closely watching the impact of the oil spill on their constituents, industries, and the ecosystem. As this drama unfolds, the need for biological information will be critical. And the legal and legislative battles that will flow from this spill may set legal precedents and highlight the need for regulatory and legislative changes.