Endangered Species Law and Policy

Fish and Wildlife Service Poised to Publish Finding that Listing of Native Hawaiin Bird May be Warranted

Paul Weiland — Fri, 27 Jan 2012 08:52:57 -0800

The U.S. Fish and Wildlife Service has prepared a 90-day finding (pdf) under the Endangered Species Act, in which it concludes that list of the ‘I’iwi (Vestiaria coccinea) as threatened or endangered may be warranted, according to an article in Greenwire by April Reese. The species, also known as the scarlet Hawaiian honeycreeper, is endemic to Hawaii, and its known distribution is limited to the islands of Hawaii, Maui, Molokai, Oahu, and Kauai.

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr. Tony Povilitis, Life Net. With its 90-day finding, the Service initiated a status review for the species that will culminate in a 12-month finding, which will address whether listing is warranted. The time frame for that review will be dictated by the date when the 90-day finding is published in the Federal Register.

Parts of National Oceanic and Atomospheric Administration to be Transferred to Department of the Interior

Audrey Huang — Thu, 19 Jan 2012 09:47:14 -0800

President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior. NOAA oversees marine wildlife, including endangered marine species. The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife. In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight over species in separate departments was inefficient.

As reported by Jason Samenow in the Washington Post, the consolidation plan is facing growing opposition. Several environmental groups, including the NRDC have spoken out against the plan arguing that it could hinder the government's protection of the oceans and undermine the agency's independence. The National Weather Service Employee's Union is also opposed to the consolidation. However, not everyone thinks the consolidation is entirely bad. David Malakoff of Science quotes a former head of NOAA's marine fisheries program as stating that "The place that NOAA sits doesn't matter; what matters is that its operations need to be coherent and functioning" and that there are both advantages and disadvantages to the proposed consolidation.

Wildlife Service Reviewing the Status of Humboldt Marten for Potential Listing Determination

Ben Rubin — Wed, 18 Jan 2012 07:52:59 -0800

On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted. The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted. The Service will be accepting comments on the Humboldt marten until March 12, 2012.

For almost 50 years the Humboldt marten, a member of the weasel family, was considered potentially extinct. In 1996, however, a stationary camera captured a picture of the illusive creature in Del Norte, California. It is believed that the Humboldt marten population in California consists of fewer than 100 individuals.

U.S. Fish and Wildlife Service and California Department of Fish and Game Approve San Diego County Water Authority's Habitat Conservation Plan

Ashley J. Remillard — Fri, 13 Jan 2012 10:22:45 -0800

The U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) have approved the San Diego County Water Authority’s (Authority) Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which is expected to contribute to the conservation of San Diego County’s natural resources, while providing a more efficient endangered species permitting process for the Authority. The 55-year plan satisfies the requirements for incidental take authorization under California’s Natural Community Planning Act and the federal Endangered Species Act.

The comprehensive plan covers 63 plant and animal species and their habitats that may be adversely affected by Authority activities, including the construction, operation, repair, and maintenance of current and future water supply infrastructure facilities. The 63 species include 26 plants, 13 birds, nine reptiles, eight mammals, five invertebrates, and two amphibians. Of the 63 species covered by the plan, 18 are currently listed as endangered or threatened under the state and/or federal Endangered Species Acts. The plan covers roughly 922,000 acres in San Diego County, which encompasses areas served by the Authority and its member water agencies. The plan also includes a small portion of land in south-central Riverside County.

The Authority submitted the NCCP/HCP, along with a draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS), to FWS and DFG in March 2010 (pdf) as part of its application for an incidental take permit. A final EIR/EIS was issued by the Authority and FWS in February 2011 (pdf) in accordance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act. A record of decision (pdf) was issued under NEPA in September 2011. The final NCCP/HCP and EIR/EIS documents are available here.

Concurrent with approval of the NCCP/HCP, FWS issued an incidental take permit (pdf) to the Authority that allows limited impacts to the listed species. If any of the remaining species covered by the plan become listed in the future, they will automatically be added to the permit.

According to the San Diego Union-Tribune, the three agencies “worked closely and collaboratively to find a way to comprehensively address potential endangered species impacts from the water authority’s projects and activities.” (San Diego Union-Tribune, Jan. 9, 2012, Mike Lee). Jim Bartel, field supervisor for FWS’s Carlsbad office, also stated that the plan “is a great example of innovative and effective environmental planning.”

Saga Over Conduct of Service Employees in Delta Smelt Case Continues

Paul Weiland — Thu, 12 Jan 2012 08:49:40 -0800

In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt. The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action. Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith. At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed. The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

The reviewers recently issued a report (pdf) with their findings. News outlets provided considerable coverage of the report, including on their editorial pages. Almost without exception, they concluded that the review vindicated the agency scientists. For example, Mike Taugher of the Contra Costa Times, wrote "[t]wo government biologists who were excoriated last fall by a federal judge accusing them of arguing dishonestly for tougher environmental regulations in the Delta did nothing wrong, according to an independent panel of experts."

The reviewers did ultimately conclude that "Mr. Fred Feyrer and Dr. Jennifer Norris may have demonstrated minor inconsistencies (Feyrer) or minor inadequacies in explanation (Norris) in the materials presented in written declarations and verbal testimonies, but these mistakes do not represent violations of scientific professional standards." At the same time, the reviewers were critical of both Mr. Feyrer and Dr. Norris. For example, the reviewers stated "the record before us does not fully document their reasoning and it is difficult to understand the basis for some of their evaluations and statements." They also stated "we feel that neither Mr. Feyrer nor Dr. Norris followed best possible scientific practices in documenting and explaining his or her position, showing how the conclusions were reached."

Particularly troubling to the court were a number of statements made by Dr. Norris in her final declaration (pdf), who suggested, among other things, that "implementation of the Fall X2 Action may represent the last opportunity to prevent extinction of a species unique to California" and "failure to provide relief from [the court's injunction] will irreparably harm the species and preclude recovery." Upon reviewing these statements, the reviewers pointed out that "we do not see analysis of other information more recent than the 2008 BiOp that she has brought forward to support her conclusions." Thus, it is unclear whether Dr. Norris gave any consideration whatsoever to the 2011 delta smelt summer townet index available at the time she filed her declaration, which measures abundance and showed an increase of seven-fold from 2009 to 2011 and almost three-fold from 2010 to 2011. With hindsight, it is apprarent that Dr. Norris' emphatic statements regarding the precarious state of the species were misguided: the delta smelt fall midwater trawl survey data, which measures delta smelt abundance during the fall months when the injunction was in place, showed a more than ten-fold increased from 2010 to 2011.

Fish & Wildlife Service Announces 90-Day Finding for Sierra Nevada Red Fox

Lauren Valk — Thu, 05 Jan 2012 18:37:58 -0800

The Fish and Wildlife Service (Service) announced this week a 90-day finding (pdf) on a petition (pdf) submitted by the Center for Biological Diversity to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act (ESA) and to designate critical habitat. As reported in the Sacramento Bee and the Modesto Bee, the Service stated that there is enough evidence to consider protecting the fox based on its small population, threats from off-road vehicles and disease transmission from dogs.

The fox, considered one of the rarest mammals in the United States, weighs about ten pounds, measures just over two feet, and generally lives only above an elevation of 7,000 feet. The current distribution of Sierra Nevada red fox is believed to be restricted to two small populations: one in the vicinity of Lassen Peak and the other in the vicinity of Sonora Pass. In 1980, the California Fish and Game Commission listed the species as threatened under the California Endangered Species Act.

Historically, the Sierra Nevada red fox occupied high-elevation areas of the Sierra Nevada and Cascade mountain ranges in California, ranging from Tulare County north to Sierra County, and from the vicinity of Lassen Peak and Mt. Shasta west to the Trinity Mountains in Trinity County. A recent study indicates that this range also included the southern Cascade mountain range in Oregon, as far north as the Columbia River.

Scientific and commercial data and other information regarding this subspecies must be received on or before March 5, 2012. Based on the status review, the Service will issue a 12-month finding on the petition, which will address whether the listing is warranted.

Gray Wolf Returns to California for First Time in Almost a Century

Paul Weiland — Thu, 29 Dec 2011 22:46:02 -0800

As Peter Fimrite reported in the San Francisco Chronicle, this week a lone gray wolf (Canis lupis) crossed the border from Oregon into California. This marks the first time since 1924 that a wolf was seen in California. The species was hunted to extinction within the state, due at least in part to concerns about the risks it posed to humans. The species is listed (pdf) as endangered under the federal Endangered Species Act. It is not listed under the California Endangered Species Act.

Gray Wolf Removed from List of Protected Species in Great Lakes Region

Paul Weiland — Wed, 28 Dec 2011 09:48:25 -0800

Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA). The species was listed in 1967 under the predecessor to the ESA. The final rule delisting the gray wolf is available here (pdf). The Service released the proposed rule (pdf) on May 5, 2011. The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in Michigan, and 782 wolves in Wisconsin.

Adult gray wolves range from 40 to 175 pounds and prey upon medium and large mammals, including deer, moose, elk, caribou as well as domestic animals, including horses and cattle. The decision to delist the speceis in the Great Lakes region drew praise from State officials in the region, farmers, and some conservation and environmental advocacy groups, but it has been criticized as premature by other environmental advocacy groups.

Federal and State Officials Propose Modifications to the Bay Delta Conservation Plan's Memorandum of Agreement

Ashley J. Remillard — Wed, 21 Dec 2011 17:03:30 -0800

Federal and state officials have issued proposed changes to the Bay Delta Conservation Plan’s (BDCP) Memorandum of Agreement (MOA) to address public comments concerning the language of the MOA and the need for meaningful public involvement in the BDCP process.

The U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources (DWR) issued the draft MOA on September 6, 2011 and requested public comments (pdf) by November 16, 2011. The MOA is intended to replace in its entirety an earlier memorandum of agreement that was executed in March 2009.

In response to comments received from the public, federal, and state agencies issued a revised version of the MOA (pdf), comprehensive responses (pdf) to the comments, and a summary (pdf) of the comments. Revisions to the MOA included clarifying that the BDCP will address both water supply and environmental conditions, revising the BDCP schedule, and further clarifying the role of consultants in the BDCP process.

The MOA establishes a joint process for development of the BDCP among Reclamation, DWR, and certain California public water agencies that export water from the Sacramento-San Joaquin River Delta. The MOA, titled the “"First Amendment to the Memorandum of Agreement (MOA) Regarding Collaboration on the Planning, Preliminary Design and Environmental Compliance for the Delta Habitat Conservation and Conveyance Program in Connection with the Development of the Bay Delta Conservation Plan,” is intended to enable a timely analysis of conservation and water supply measures developed in the BDCP.

Black-Backed Woodpecker Named A Candidate

Ben Rubin — Fri, 16 Dec 2011 05:41:08 -0800

As recently reported by Matt Weiser of the Sacramento Bee, on December 15, 2011, the California Fish and Game Commission named the black-backed woodpecker (Picoides arcticus) a candidate species. Under the California Endangered Species Act, the Department of Fish and Game now has 12 months to complete a status review of the species "based on the best scientific information available" and submit a report and listing recommendation to the Commission. After receiving the Department's recommendation and all appropriate public comment at a public hearing, the Commission will decide whether listing of the woodpecker as an endangered or threatened species is or is not warranted.

The Department's initial evaluation and recommendations is available here (pdf).

Services Issue Notice of Controversial New Interpretation of Threatened and Endangered Species

Robert Horton — Fri, 09 Dec 2011 11:29:19 -0800

Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA). See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011).

Under the draft policy, when making listing decisions the Services would:

1. Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2. Limit the "range" to the range currently used by a species during any of its life stages; and

3. Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

The draft policy interpretation has already drawn harsh criticism from the Center for Biological Diversity, which calls the proposal a "recipe for extinction." By defining significance of a portion of a species' range in terms of a threat to the entire species, not just to the species found in the limited portion of its range, the Services may list fewer species and delist more than they would if "significant" was defined without reference to the entire species. And by limiting "range" to the current range, a species that has suffered severe declines in historic range, but which is flourishing in its current range, may not qualify for listing and protection under the ESA.

In a Questions and Answers (PDF), the Services explain that while a species will not be listed solely on the basis of lost historical range, "the causes and consequences of loss of historical range on the current and future viability of the species must be considered and are an important component of determining whether a species is currently threatened or endangered." But this has not mollified critics.

In contrast, landowners may find cause for concern because, under the draft policy, if a species is found to be endangered or threatened only within a significant portion of its range, then under the proposed interpretation the entire species would be listed, and the ESA's corresponding protections would apply throughout the species' entire range. Thus, a species may be listed in areas where it is currently thriving, resulting in unnecessary and costly over regulation in some areas.

Although styled as a "draft policy," it is essentially a proposed rulemaking because it is the Services' "intent to publish a final policy . . . that will be accorded deference by the federal courts." Clearly, the Services hope the new policy interpretation will eventually end claims brought in litigation over listing decisions based on past interpretations of "significant portion of its range" in the ESA's definitions of "endangered species" and "threatened species." However, by defining "significant portion of its range" with reference to the range's importance to the species, not the geographic extent of the range, the draft policy interpretation would appear to be at odds with the plain meaning of the statutory text.

Indeed, in response to litigation over the meaning of the phrase, on March 16, 2007, the Solicitor of the Department of the Interior issued a formal opinion on the meaning of "significant portion of its range" (the so-called M-Opinion). However, the courts have since rejected aspects of the interpretation in the M-Opinion as applied by the Fish and Wildlife Service, and the DOI withdrew it on May 4, 2011.

The comment period is open for 60 days. Until the policy is formally adopted, the Services intend to use the draft policy as guidance in their respective listing decisions.

Federal Court Denies Cross Motions for Summary Judgment in Whooping Crane Case; Matter Heads to Trial

Paul Weiland — Tue, 06 Dec 2011 23:50:07 -0800

The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the 2008-2009 winter, which resulted in take of the species.

In their cross motion for summary judgment, Defendants argued that Plaintiffs lack standing. But the court analyzed each element of standing – injury-in-fact, causation, and redressability – and denied Defendants’ motion, stating that “the evidence presented by Plaintiff, taken as true, establishes a causal link between Defendants' conduct and Plaintiff's injury.” At the same time, the court denied Plaintiff’s motion for partial summary judgment on the issue of standing holding that “issues of material fact remain as to whether low flow conditions caused a take of Whooping Cranes.”

Defendants also argued that the Eleventh Amendment bars Plaintiffs’ claim, but the court held that Plaintiffs’ suit against State officials for prospective relief falls within an exception to the Eleventh Amendment established by the Supreme Court.

With respect to the issue of liability under section 9 of the ESA for take of whooping cranes, the court rejected Defendants’ arguments that State regulators cannot be held liable. The court noted that numerous courts have held that regulators can be held liable for take of listed species. The court also rejected Defendants’ argument that Plaintiffs failed to present evidence of take sufficient to overcome a motion for summary judgment, opining that “there are genuine issues of fact as to Defendants’ actions being the proximate cause of a ‘take’ of Whooping Cranes.” The case went to trial beginning December 5, 2011.

Congress To Re-Examine Endangered Species Act

Ashley J. Remillard — Sat, 03 Dec 2011 07:44:52 -0800

The House of Representatives Natural Resources Committee is scheduled to hold a hearing on December 6, 2011 regarding the Endangered Species Act (ESA). The hearing is expected to focus on how litigation involving the ESA is costing jobs, impacting the economy, and preventing species recovery.

According to Rep. Doc Hastings (R-Wash.), the committee’s chairman, the hearing will be the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the ESA. Hastings has said that the law is failing to achieve its fundamental goal of species recovery, and is being used by special interest groups “to file lawsuits and drain resources away from real recovery efforts.”

The goal of the hearings is to update the ESA in a “calm, careful, and bipartisan way.” According to the News Tribune, Chairman Hastings stated that it has been over two decades since the ESA was last reauthorized, and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people. (News Tribune, Nov. 28, 2011, Rob Hotakainen.)

The Natural Resources Committee announced its intent to examine the ESA last summer. A witness list for the December 6, 2011 hearing has not yet been released.

Federal District Court Denies Request for Preliminary Relief in Dispute Regarding Management of Sharp Park Golf Course

Paul Weiland — Wed, 30 Nov 2011 10:07:59 -0800

The United States District Court for the Northern District of California issued an order (pdf) denying a motion for preliminary relief filed by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California. At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA). Plaintiffs sought an injunction that would substantially restrict activities necessary to allow for continued operation of the golf course.

The Sharp Park golf course has been in continuous operation since 1930. For a substantial portion of that period, two listed species -- the endangered San Francisco garter snake (Thamnophis sirtalis tetrataenia) and threatened California red-legged frog (Rana draytonii) -- have been present at Sharp Park. Plaintiffs argued that pumping during the rainy season to control water levels in water bodies on site, mowing, and golf cart use are likely to cause take of listed species. They further argued that the standard for granting preliminary relief in an ESA case is whether take is likely to occur. The court rejected this argument, recognizing that preliminary relief is an extraordinary remedy and that plaintiffs must show a likelihood of irreparable harm.

The court determined that plaintiffs failed to meet their burden of establishing irreparable harm. In sum, the court held:

The expansion of the Frog population, coupled with defendants’ careful attention to moving any vulnerable egg masses and their continuing interactions with [the Fish and Wildlife Service] seeking authorization to do so, make this a situation that does not warrant the temporary, immediate, and drastic relief afforded by a preliminary injunction.

Slip Op. at 14.

Ninth Circuit Affirms Lower Court Decision for Strike Rule Delisting Grizzly Bears

Audrey Huang — Tue, 22 Nov 2011 14:16:56 -0800

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species. The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly. However, the Ninth Circuit reversed the district court's holding that the Service's determination regarding the adequacy of existing regulatory mechanisms was not reasonable.

The subject of the appeal was the Service's decision to remove the Yellowstone grizzly from the list of threatened and endangered species. The Service first listed the grizzly as threatened in the lower 48 states in 1975. At the time of listing, the Yellowstone area grizzly population was estimated to number between 136 and 312 bears. The Service developed a grizzly bear recovery plan in 1982 and revised the plan in 1993. By 2006, the Service determined that the recovery plan's demographic and habitat based recovery criteria were being met, and the total grizzly population in the greater Yellowstone area was estimated at more than 500 bears, which scientists concluded was approaching Yellowstone National Park's carrying capacity. Pursuant to the recovery plan, the Service developed a Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Strategy), which the Service finalized in March 2007. The Service published a final rule (pdf) removing Yellowstone grizzly from the threatened species list in March 2007.

The Greater Yellowstone Coalition challenged the Service's final rule in district court in November 2007. The district court found that the Service failed to rationally support its conclusions that adequate regulatory mechanisms were in place to protect the grizzly and that declines in whitebark pine did not threaten the grizzly. The district court vacated and remanded the final rule.

The Ninth Circuit agreed with the district court and found that the Service failed to articulate a rational connection between the scientific data and its conclusion that changes in whitebark pine production are not likely to impact the Yellowstone grizzly to the point where it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The court explained that the data in the final rule actually demonstrated a relationship between whitebark pine seed shortages, increased bear mortality, and decreased female reproductive success. The increasing shortage of whitebark pine is due to stresses on the trees from mountain pine beetles and white pine blister rust, both of which may be exacerbated by climate change. As we previously reported here, environmental groups sued the Service to act on a petition to list the whitebark pine due to climate change, and the Service subsequently made a warranted but precluded finding for listing the whitebark pine, which we blogged about here.

The court rejected the Service's notion that employing adaptive management justified the delisting, explaining that the future possibility of relisting is not a reasonable justification for delisting, and that "for adaptive management of a potential threat to suffice as a basis for a delisting determination, . . . more specific management responses, tied to more specific triggering criteria, are required."

Finally, the Ninth Circuit agreed with the Service that there are adequate regulatory mechanisms in place to protect a recovered Yellowstone grizzly population. The court explained that "delisting cannot require the imposition of legal protections commensurate with those provided by the [Endangered Species Act] itself." Therefore, the court explained, "it is reasonable to conceive of 'adequate' regulatory mechanisms as offering a recovered species something less than the stalwart protections of the ESA, but considerably more than no special protection at all."

The effect of the court's decision is to continue Endangered Species Act protection for the Yellowstone grizzly.

Ninth Circuit Upholds Biological Opinions for Montana Mining Project--Grizzly Bears and Bull Trout Critical Habitat Adequately Addressed

Sue Meyer — Tue, 22 Nov 2011 08:29:09 -0800

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or jeopardize the continued existence of grizzly bear population in the lower 48 states of the United States.

FWS determined that construction and operation of the mine would not adversely modify bull trout critical habitat based primarily on the relatively small footprint of project impacts to critical habitat-- less than three stream miles-- as compared to the much larger 135-stream mile critical habitat “core area.” The Court agreed that such “large-scale critical habitat analysis” is appropriate provided localized impacts are not masked or ignored. The BiOp included a complete evaluation of the physical and biological characteristics necessary for the bull trout’s survival and concluded that all essential elements would remain functional throughout the project’s lifetime. For this and other reasons, the Court affirmed FWS’s no adverse modification conclusion.

The Court also upheld the BiOp’s no jeopardy conclusion for grizzly bears based on the project’s comprehensive mitigation plan for the affected Cabinet-Yaak population, which was expected to promote grizzly recovery over the long-term.

Court Issues Timeline for Polar Bear Assessment

Robert Horton — Fri, 18 Nov 2011 11:43:00 -0800

As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (Service) violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) (Special Rule) without conducting an environmental assessment. As we discussed here, the Special Rule sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.

On November 18, 2011, the court remanded (PDF) the Special Rule to the Service for the preparation of an environmental assessment (EA) and new rulemaking determination. The court set a deadline of April 13, 2012 for the Service complete a draft EA and to submit a notice of availability of the draft EA and proposed special rule to the office of the Federal Register for publication. The Service has until December 6, 2012 to complete a final EA and final rulemaking determination and to submit a notice to the Federal Register for publication regarding the availability of those documents.

The Interim Final Special Rule (PDF) is reinstated and effective until the new special rule for the polar bear becomes effective.

Fish and Wildlfie Service Announces Online Only Format for Endangered Species Bulletin

Paul Weiland — Tue, 15 Nov 2011 15:44:31 -0800

The U.S. Fish and Wildlife Service has announced that its Endangered Species Bulletin will be available exclusively in an online-only format going forward. The Bulletin will be updated bi-monthly and will include a single in-depth feature articles, additional supporting articles, and other content. The website for the Bulletin provides access to an archive that includes past editions back to 2000.

Public Comment Period for Proposed Designation of Hawaiian Monk Seal Critical Habitat Extended

David Miller — Mon, 14 Nov 2011 13:49:02 -0800

The National Marine Fisheries Service (NMFS) recently reopened the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi). As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii. NMFS provided a 90-day comment period, ending August 31, 2011.

NMFS received numerous requests for an extension of the comment period. The requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation. In response to those requests, NMFS elected to extend the deadline. The public will now have until January 6, 2012 to comment on NMFS's proposed designation.

Documents and reference materials related to the proposed rulemaking are available via the NMFS Pacific Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD.

Federal District Court Rejects Challenge by Pesticide Manufacturers to Biological Opinion and Reasonable and Prudent Alternative

Paul Weiland — Mon, 07 Nov 2011 14:33:37 -0800

The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS). In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids. Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects. But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.

Plaintiffs claimed that NMFS improperly employed and relied on two models. NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids. With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations. But the court stated that “it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct.” It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.

NMFS used a quantitative population model to simulate how the pesticides at issue would affect the listed species, and the agency assumed for the purpose of developing and running the model that juvenile salmonids would be exposed to high levels of the pesticides for four straight days. Plaintiffs argued that NMFS failed to explain the basis for this assumption. The Court characterized NMFS’ explanation for the assumption as post hoc, but nonetheless took note of the fact that the assumption is standard for acute toxicity testing in the field. The court then held that “[w]hile four days may seem arbitrary to a layperson, it is not the duty of the Court to sit in judgment of scientific standards.”

Plaintiffs also challenged the RPA, particularly buffers around streams that support the listed species that preclude application of the apposite pesticides. Plaintiffs claim that NMFS failed to assess whether the buffers are economically and technologically feasible from the plaintiffs’ perspective. In support of this position, plaintiffs cited to the definition of an RPA in the NMFS and U.S. Fish and Wildlife Service regulations, which states that an RPA is composed of actions that are, among other things, economically and technologically feasible. The court noted a split of authority among the few district courts that interpreted this provision of the regulation, and it sided with those courts that held that the economic and technological feasibility requirement applies to the ability of EPA as the action agency to implement the RPA rather than the ability of those directly affected to successfully carry out the proposed action with the RPA in place.

The court repeatedly deferred to NMFS both with respect to contested legal and scientific issues. To a point, this is consistent with prevailing jurisprudence and applicable law, including the APA. At the same time, this decision reaffirms the general though not universal tendency of the courts to simply punt on difficult scientific issues and arguably represents a departure from the hard look doctrine.