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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

Federal Judge in D.C. defers to FWS 4(d) rule on threatened status of the polar bear


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In re: Polar Bear Endangered Species Act Listing and §4(d) Rule Litig., Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C., June 30, 2011).

BACKGROUND: Several lawsuits challenging the Fish and Wildlife Service's (the Service) 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA), and to issue a rule under Section 4(d), were consolidated into multi-district litigation in the D.D.C.  On June 30, the court granted summary judgment to the Service and upheld the listing against all challenges.  Plaintiff Center for Biological Diversity's (CBD) claims against the 4(d) rule are still pending.  The focus of the litigation was mainly on the distinction between the listing categories "threatened" and "endangered" and also on reliability of the state of climate change science when predicting the impacts of climate change on ice habitat of the polar bear.  Following are the court's holdings and analysis.

RULING: The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing.  Center for Biological Diversity (CBD), Natural Resources Defense Council, and Greenpeace (collectively, CBD) claimed that the Service wrongfully concluded that the polar bear did not qualify for endangered status as of 2008.  The Service had maintained that a species must be at "imminent risk" of extinction to qualify for endangered status, which it had not articulated in the 2008 listing rule, but had stated in a "Supplemental Explanation" required from previous remand.  The Service's view was that a species be "currently on the brink of extinction in the wild" and that this understanding was not intended to be narrow or inflexible, as the ultimate determination would depend "on the life history and ecology of the species, the nature of the threats, and the species' response to those threats."  The Supplemental Explanation also described four categories of situations that had been found to satisfy that test in the past and applied each concept to the facts in the polar bear record.  The court applied Chevron deference to the Supplemental Explanation and held that, as applied to the polar bear, the Service's definition of an endangered species represented a permissible construction of the ESA since "Congress did not seek to make any factor controlling when drawing the distinction [between threatened and endangered]" and that there is a "temporal element to the distinction between the categories."

Joint plaintiffs claimed that the polar bear should not have been considered threatened at the time of listing because the Service failed to demonstrate that the polar bear is sufficiently "likely" to become endangered, and the Service arbitrarily selected a 45-year time frame as the "foreseeable future" for the polar bear when a shorter time period would have been more appropriate.  Plaintiffs had argued that a demonstration of 67-90% likelihood was required to establish whether the polar bear would become an endangered species in the foreseeable future, since a large part of the Service's record had relied on Intergovernmental Panel on Climate Change (IPCC) reports that had coincidentally established meanings for the terms "likely" and "very likely."  The court rejected plaintiffs' argument here and stated that neither Congress nor the Service had adopted an official interpretation of "likely," and the Service was not bound to IPCC definitions simply because it had relied on other scientific portions of the IPCC reports.  Plaintiffs had also argued that the Service should have been limited to a shorter time period than the selected 45-year time frame due to the inability to foresee what future regulatory mechanisms may be in place.  The Service had selected 45 years because it again relied on the IPCC report that predicted warming (regardless of choice of emissions scenario) before the point at which projections diverge significantly.  The court upheld the 45-year time frame and emphasized that the ESA's listing provisions require the Services only to consider existing regulatory mechanisms.  In addition, the court noted that Congress and the Services have not yet defined the term "foreseeable future," that a bright line rule was not appropriate, and that the definition should be flexible depending on species and best available science.

RULING: The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualified As a "Distinct Population Segment."   Plaintiffs Center for Biological Diversity (CBD), Safari Club International and Safari Club International Foundation (SCI), and Conservation Force et al. (CF) claimed that the service wrongfully concluded that no polar bear population or ecoregion is "discrete."  The court upheld the Services determination regarding distinct population segments (DPSs) (since it followed formal policy for designating a DPS that had been promulgated through notice-and-comment rulemaking and upheld by prior courts) and found that the Service "articulated a reasonable basis for its conclusion that no polar bear population or ecoregion is meaningfully 'discrete' for the purposes of DPS designation: even if there are behavioral differences among polar bear population segments, polar bears are universally similar in one crucial respect - namely, their dependence on sea ice habitat and negative response to the loss of habitat."

RULING: The Service Did Not Arbitrarily Fail to Consider Other Listing Factors.  Joint plaintiffs also argued that the listing rule should be overturned because of deficiencies in the Service's analysis of several of the listing factors the ESA requires an agency to consider:  1)  that the service failed to "take into account" foreign conservation efforts to protect the polar bear;
2)  that the service failed to rely on the "best available science"; 3) that the service failed to consider whether the threat of overutilization warranted listing the polar bear as "endangered"; and 4) that the service wrongly concluded that existing regulatory mechanisms will not protect polar bears despite anticipated habitat losses.  The court found that FWS did articulate a rational basis for each specific listing determination and the agency explained how the categories apply in the context of the polar bear and the state of its science.  Notably, the court found instances in the record where the Service did take foreign conservation efforts into account, but those efforts concentrate mostly on overharvest and disturbance and would not be sufficient to offset ice loss, which is the primary threat to the polar bear's survival.  In terms of "best available science," plaintiffs argued that climate change predictions were uncertain, pointed to weaknesses in models and claimed that the Service used a partial dataset for the Southern Beaufort Sea polar bear population.  The court found that best available science is to be relied upon even if it is uncertain or even inconclusive and this merely prohibits the Services from disregarding available scientific evidence that is better than the evidence it relied upon.  Plaintiffs did not challenge the Service's models as best available science, but appeared to take the position that the Service should have drawn different conclusion from those models.

RULING: The Service Followed Proper Rulemaking Procedures.  Plaintiff State of Alaska had claimed that FWS failed to satisfy its obligation under Section 4(i) of the ESA to provide a “written justification” explaining why it issued a final rule that conflicts with comments it received from the State.  FWS had sent a lengthy letter to the State of Alaska in  response to its comments, which satisfied 4(i), even if Alaska “may have preferred a different or more detailed explanation.”  The court concluded that 4(i) requires only that FWS provide a “written justification for failure to adopt regulations consistent with the agency’s comments or petition,” a response which is procedural only.

EXCERPT: "As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science."

Federal Judge in D.C. says ESA dispute over EPA's FIFRA registration of Rozol will proceed


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Defenders of Wildlife v. Jackson, CV 09-1814, 2011 U.S. Dist. LEXIS 62461 (D.D.C., June 14, 2011).

BACKGROUND: The U.S. Environmental Protection Agency (EPA) registered Rozol under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) on May 13, 2009 and did not consult with FWS before approving its registration.  

ISSUE: Plaintiffs, Defenders of Wildlife (Defenders) and The Natural Resources Defense Council (NRDC), sought both declaratory and injunctive relief under the ESA and sought an order declaring that EPA’s FIFRA registration of Rozol was not in accordance with the ESA because the EPA had failed to consult with FWS.  More specifically, Defenders requested an order requiring EPA to engage in formal consultation prior to issuing the registration.  The NRDC requested an order requiring the EPA to engage in and complete formal consultation prior to registering Rozol.  The EPA had begun consultation with FWS on September 30, 2010 (a week after the suit was filed) and had argued that plaintiffs’ claims were therefore moot.  Plaintiffs had argued that EPA remains in violation of the ESA until it finishes consulting with FWS and the court could provide an effective remedy by vacating the registration and ordering the EPA not to register Rozol without completing consultation.  

RULING: The court found that Defender’s request was moot because EPA had already begun consulting.  NRDC’s request, however, was not moot because consultation had not yet been completed and therefore an effective remedy would be possible and appropriate: the cessation of the use of a deadly chemical that may jeopardize the continued survival of endangered species until the EPA complies with the mandates of the ESA.  

According to Audubon of Kansas, a participant in the litigation, Rozol is a Poison that Keeps on Killing.  "The most disturbing element of Rozol (chlorophacinone) use is its hazard of secondary poisoning for predators that eat the poisoned animals. Prairie dogs poisoned with Rozol die from internal bleeding. In one non-sanctioned poisoning in South Dakota investigators gathered several hundred of the animals that were continuing to die above ground for three weeks after application." Image available from Audubon of Kansas

Federal Judge in Louisiana says plaintiffs lacked standing to bring ESA claims in Deepwater Horizon case


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In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, MDL 2179, 2011 U.S. Dist. LEXIS 63642 (E.D. La., June 16, 2011).

This multidistrict litigation consists of hundreds of cases arising from the April 20, 2010 explosion, fire, and capsizing of the Deepwater Horizon drilling unit owned by defendant Transocean.  The court created several pleading bundles.  This particular bundle consists of claims for injunctive relief brought against private parties by thousands of individuals.  Among the many claims for injunctive relief was a claim for violations of the Endangered Species Act.  Transocean filed a motion to dismiss the ESA claim (among others) which was granted.  The court ruled that plaintiffs lacked standing to bring their ESA claim because injuries alleged would not be addressed by injunction.  First, no benefit would be achieved because the well was capped and there is no ongoing release.  In addition, the private companies along with agencies have been and are cleaning up the Gulf of Mexico and plaintiffs do not assert any deficiency in these ongoing remediation efforts.  Finally, the claim depended on the actions of actors that were not before the court.  The Defendants do not unilaterally direct cleanup activities in the Gulf, which are under the control of federal agencies.  In addition, the court found plaintiffs' claims to be moot, that the defendants were not currently "in violation" of the ESA, and that there is no ongoing violation.

Dr. Brian Stacy, NOAA veterinarian, cleans a young Kemp's ridley turtle.  Photo by NOAA/GADNR available from NOAA Fisheries Office of Protected Resources.

Federal Judge in Arizona says U.S. Forest Service actions for Mexican wolf, and work with FWS, fulfilled ESA demands


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Defenders of Wildlife et al. v. U.S. Fish and Wildlife Service. Wildearth Guardians et al. v. U.S. Fish and Wildlife et al., CV 08-280 TUC DCB, CV 08-820 PHX DCB, 2011 U.S. Dist. LEXIS 66000 (D. Ariz., June 13, 2011).

BACKGROUND: In 1982, the U.S. Fish and Wildlife (FWS) Service issued the Mexican Wolf Recovery Plan.  In 1998 FWS issued a final rule, pursuant to section 10(j) of the ESA, to reintroduce an experimental population of Mexican wolves into the Blue Range Wolf Recovery Area (BRWRA).  FWS oversaw the recovery plan and reintroduction program for the species without complaint until 2003 when it entered into a Memorandum of Understanding with a number of federal, state, local, and tribal entities, including defendant U.S. Forest Service, to create the Adaptive Management Oversight Committee.  On April 30, 2005, the AMOC issued a document entitled the Mexican Wolf Blue Range Reintroduction Project Adaptive Management Oversight Committee Standard Operating Procedure 13, which was challenged by plaintiffs, Guardians and Defenders, in these consolidated cases.  In addition to suing FWS, Guardians also sued the U.S. Forest Service (USFS) for failing to confer with FWS to carry out a program to conserve the Mexican gray wolf.  On December 2009, a consent decree was entered between Defenders and the FWS.  FWS had filed a motion to dismiss Guardians’ claim against it, which was granted, because the court found the Consent Decree to provide all of the relief that Guardians sought.  

Image by Arizona Department of Fish and Game from the Arizona Master Naturalist News Web Log.

ISSUE: With most issues resolved by the Consent Decree, the sole remaining claim in the case was between Guardians and the U.S. Forest Service.  The court considered 1) whether the USFS’s failure to develop and implement its own conservation program for the Mexican wolf is in violation of ESA §7(a)(1); and 2) whether the USFS’s support of the FWS’s Mexican wolf program has hindered the conservation of the subspecies.  The court denied Guardians’ motion for summary judgment because Guardians did not prove that USFS had totally failed to act to conserve the Mexican gray wolf.

RULING: 7(a)(1) requires equal, not agency-specific, responsibility.  The USFS had worked with the FWS to reintroduce the wolf to carry out the recovery plan and from the beginning, USFS participated in the reintroduction process, such as locating release pens, public information, and area management after reintroduction.  From the inception of the reintroduction program in 2008, USFS was an active participant in many ways which included serving alongside FWS as a member of various interagency management teams.  Guardians had argued that USFS did not independently develop its own agency-specific conservation program in accordance with 7(a)(1) and therefore this amounted to inaction.  The court looked to two cases, Pyramid Lake Tribe v. U.S. Dept. of the Navy, 898 F.2d 1410 (9th Cir. 1990) and Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), to reach its conclusion that 7(a)(1) does not require USFS to develop its own independent agency-specific conservation program, but that it has responsibility equal to that of the FWS to use its authorities in furtherance of the conservation of the Mexican gray wolf and has an affirmative duty to carry out a program for the conservation of the Mexican gray wolf.

RULING: The USFS’s Interagency Cooperation and 7(a)(2) Biological Assessments did not Hinder Conservation of the wolf. Guardians had complained that the USFS’s contributions did not add anything to wolf conservation and took no affirmative steps to work with FWS to address the root of the problem:   years of consistent prioritization of uninterrupted implementation of the USFS’s domestic livestock grazing program over the mandate for Mexican gray wolf reintroduction.  The record reflected that USFS had imposed allotment-specific wolf conservation measures to cover wolf/livestock conflicts and that USFS consulted with FWS before issuing grazing permits in the BRWRA.  Therefore, the court did not find total inaction or failure on the part of the USFS to act to conserve the Mexican gray wolf.

Federal Judge in Colorado requires FWS to take another look at Graham's penstemon


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Center for Native Ecosystems v. U.S. Fish and Wildlife Service, CV 08-cv-2744-WDM-BNB, 2011 U.S. Dist. LEXIS 61321 (D. Colo., June 9, 2011).

BACKGROUND: The Graham’s penstemon is an herbaceous perennial plant that occurs uniquely on exposed, raw shale knolls and slopes of western Colorado and eastern Utah with five core populations (four in Utah and one in Colorado).  Sixty percent of these plants occur on Bureau of Land Management (BLM) lands and, according to the BLM, the plant is in severe decline.  After recognizing in the proposed rule that the species had a “strong potential to become an endangered species in the foreseeable future if present threats increase and projected energy development scenarios occur,” and ignoring the advice of peer reviewers, the FWS failed to list the plant in their final rule.  

Image from the rare plants webpage by the Utah Native Plant Society

ISSUE:: Plaintiffs challenged the decision of the U.S. Fish and Wildlife Service (FWS) to withdraw the proposed listing of Graham’s penstemon as a threatened species under the ESA.  The plaintiffs asserted that 1) FWS failed to consider the combined impact of the identified threats to the plants; 2) FWS disregarded the best available information regarding the threat to the plant of oil and gas development, livestock grazing, and off-road vehicles (ORVs); and 3) FWS failed to demonstrate how claimed conservation measures to protect the plant were implemented and effective and improperly relied on future measures.  

RULING: The court granted plaintiffs’ petition for review of agency action.  First, the court failed to take judicial notice of the Pariette cactus listing – a plant occurring in the same area and subject to the same impacts as the penstemon.  Next, the court found that FWS did not consider the impact upon the species of all listing factors together.  FWS had addressed each of the five factors separately and in isolation, but the final rule was devoid of any discussion of the effect of combining two or more factors.  In addition, FWS did not consider best available scientific and commercial information because the rule did not adequately address concerns raised by the BLM, nor did it explain why the previously perceived threats of energy development, grazing, and ORV use had been significantly eliminated.  Plaintiffs had pointed to specific reports and available information from BLM scientists.  Furthermore, when making its listing determination, FWS had relied on the assumption that future draft conservation efforts would be effective when it was instead required to look at existing regulatory mechanisms.

U.S. District Judge in Alabama dismisses part of lawsuit related to Deepwater Horizon, but claims of alleged breach of duty to insure endangered species protection will proceed


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Defenders Of Wildlife v. Bureau Of Ocean Energy Management, Regulation, and Enforcement, et al., Civil Action No. 10–0254–WS–C, 2011 WL 2013977 (S.D. Alabama, May 23, 2011)(William H. Steele, Chief Judge).

BACKGROUND. Plaintiff, Defenders of Wildlife (“DOW”), brought this action against a collection of federal defendants, including the Bureau of Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”); the United States Department of the Interior; and Ken Salazar, Secretary of the Interior (collectively, the “Federal Defendants”). The lawsuit proceeds from DOW's position that, in the wake of the Deepwater Horizon drilling rig explosion and oil spill in the Gulf of Mexico on April 20, 2010, the Federal Defendants have failed to modify their policies and practices concerning offshore oil and gas leasing operations in the Gulf as required by the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (“NEPA ”); the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA ”); and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA ”).

From the beginning, the BP Deepwater Horizon disaster was expected to threaten the North Atlantic bluefin tuna, sea turtles, sharks, whales, porpoises, dolphins, brown pelicans, oysters, shrimp and blue crab, menhaden and marsh-dwelling fish, beach-nesting and migratory shorebirds, and warblers, orioles, buntings, flycatchers, and swallows.  In fact, in a recent article published in BioScience, University of New Hampshire professor Fred Short and others identified 39 additional marine species, beyond the 14 already protected by federal law, that are at an elevated risk of extinction.  In other words, they found 53 species with a distribution that overlaps the area of the oil spill that are categorized as critically endangered, endangered, or vulnerable by the International Union for Conservation of Nature's (IUCN) Red List IUCN Red List; yet of these species, only 14 receive legal protection in the United States under the Endangered Species Act, the Migratory Bird Treaty Act, or the Marine Mammal Protection Act. See, Science Daily.  Photo of the Deepwater Horizon fire on April 22, 2010 by the U.S. Coast Guard, available online at

THE COMPLAINT: The operative Third Amended Complaint (doc. 61) summarizes the Federal Defendants' alleged violations by asserting that BOEMRE continued accepting bids on more than 200 new deepwater leases in Lease Sale 213 after the April 2010 oil spill, without preparing a Supplemental Environmental Impact Statement, reinitiating consultation under the ESA, or insuring that its actions will not jeopardize the survival of endan-gered and threatened species. (Doc. 61, at 2.) In a nutshell, DOW contends that, by continuing to accept lease bids, the Federal Defendants have failed adequately to consider the new information gleaned from the Deepwater Horizon oil spill in administering the oil and gas leasing program in the Gulf of Mexico, and that the Federal Defendants' deficiencies in that regard violate NEPA, the ESA, and the APA...  Claim Three alleges that BOEMRE violated the APA and the ESA by failing to reinitiate consultation with the National Marine Fisheries Service (“NMFS”) and U.S. Fish and Wildlife Service (“FWS”) based on new information from the Deepwater Horizon spill showing that deepwater drilling in that area may harm endangered or threatened species and critical habitat. And in Claim Four, DOW maintains that BOEMRE violated the APA and the ESA by “proceeding with lease sales in the Gulf after the Deepwater Horizon incident ... in violation of its independent duty to insure that its actions are not likely to jeopardize the continued existence of any listed species.”

RULING RE: CLAIM THREE: The Federal Defendants maintain that Claim Three should be dismissed in its entirety because it proceeds from a false premise, namely, that BOEMRE has not reinitiated such consultation. To demonstrate the inaccuracy of DOW's position, the Federal Defendants proffer a pair of letters dated July 30, 2010, from BOEMRE to the NMFS and FWS. The letter to NMFS specifies that BOEMRE “requests that the National Marine Fisheries Service (NMFS) reinitiate consultation (based on the existing consultation and resulting Biological Opinion (BO) dated June 29, 2007) under Section 7 of the ESA on the effects of the Five–Year Outer Continental Shelf Oil and Gas Leasing Program (2007–2012) in the Central and Western Planning Areas of the Gulf of Mexico. This request is in response to the Deepwater Horizon (DWH) incident and is meant to comply with 50 C.F.R. § 402.16.”  The letter to FWS is substantively identical to the NMFS letter in all material respects...  DOW protests that deeming Claim Three moot “based on this barest of effort put forth by a federal agency would make a mockery of the ESA's command that each federal agency ensure that its activities are not likely to jeopardize the continued existence of threatened and endangered species.”  Plaintiff maintains that Claim Three is not moot because this Court could still “grant declaratory relief deeming Federal Defendants to be in violation of the ESA with respect to the Multisale Plan” and because the Federal Defendants “have not evidenced any intent to correct the ongoing ESA violations during reinitiation of consultation.”  But these arguments improperly expand the scope of Claim Three, and conflate it with Claim Four..   Count Three goes no further than to allege that BOEMRE's “failure to reinitiate consultation with NMFS and FWS violates § 7(a)(2) of the ESA ... and its implementing regulations.”  It is undisputed that BOEMRE, in fact, reinitiated such consultation back in July 2010. As such, the entire premise of Claim Three (namely, that BOEMRE has violated the ESA by failing to reinitiate consultation) has been mooted by the agency's subsequent conduct (namely, its reinitiation of consultation). There is no reason for Claim Three to remain in play, inasmuch as any need for the relief sought therein has been obviated by the Federal Defendants' actions. Stated differently, plaintiff has already gotten exactly what it asked for vis a vis this cause of action.

RULING RE: CLAIM FOUR: The Federal Defendants also move for dismissal of Claim Four, in part. In that claim, DOW alleges that in relying on “faulty opinions in proceeding with lease sales in the Gulf after the Deepwater Horizon incident,” BOEMRE has “failed to insure that there will be no jeopardy to endangered or threatened species resulting from actions it implements,” in violation of the ESA and APA. Claim Four flows from the ESA's directive in § 7(a)(2) that federal agencies must insure that their actions are not “likely to jeopardize the continued existence of any endangered or threatened species.” 16 U.S.C. § 1536(a)(2)...  Federal Defendants' Rule 12(b) Motion construes Claim Four as being geared toward future lease sales. But careful scrutiny of the Third Amended Complaint reveals no allegations in Claim Four that future lease sales approved by BOEMRE may violate the ESA's requirement that agencies insure that their actions are not likely to jeopardize listed species. Indeed, a fair reading of Claim Four shows no reference to future lease sales at all. On its face, Claim Four is aimed exclusively at past and current agency actions, and specifically BOEMRE's reliance on faulty NMFS/FWS opinions “in proceeding with lease sales in the Gulf after the Deepwater Horizon incident.” Thus, plaintiff has framed the challenged conduct on which Claim Four is grounded as being actions that BOEMRE has taken and is taking now in the wake of the Deepwater Horizon spill, rather than lease sale approvals that may or may not happen at some future time with or without certain conditions or restrictions, after the conclusion of reinitiated consultation with NMFS/FWS.

KEITHINKING: This action includes intervenors, too; namely, the American Petroleum Institute, the Independent Petroleum Association of America, the U.S. Oil & Gas Association, the International Association of Drilling Contractors, and Chevron U.S.A., Inc.  While they too filed a motion to dismiss, adding additional arguments, the end results were the same.  Claim Three was dismissed, claim four was not.  Also, in the National Environmental Policy Act (NEPA) portion of this dispute, Claim Two was not dismissed.  Claim Two focuses on Lease Sale 213, and alleges an APA violation based on BOEMRE's acceptance of bids for more than 200 new oil and gas leases in the Gulf in that lease sale following the Deepwater Horizon spill, “in reliance on the invalid conclusions of the Multisale EIS and Environmental Assessment—Finding of No Significant Impact for Sale 213 and without supplementation of the EIS based on significant new circumstances and information.”  For more information, visit the Original Complaint, Defenders of Wildlife, and

Case updates: compensating Klamath water users; court actions on settlements in listing and Sacramento Delta disputes; potential listing of Atlantic sturgeon no basis for stay.


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Klamath Irrigation District v. United States,635 F.3d 505 (Fed. Cir. 2011).  In an article by Marten Law, Douglas W. MacDougal and Jessica K. Ferrell summarized the recent decision by the U.S. Court of Appeals for the Federal Circuit on the conflicts between the Endangered Species Act and the property rights of Klamath basin water users, explaining, in part, as follows: "The water users and irrigation districts in the Klamath seek to recover from the United States for their widely-publicized losses caused by the government’s decision in 2001, during a drought, to use the available water for fish listed under the Endangered Species Act (ESA). The plaintiffs’ claims, filed in the United States Court of Federal Claims (Court of Claims), are based on the Fifth Amendment’s Takings Clause, breach of the various contracts with the government, and breach of the Klamath Basin Compact (Compact). The Court of Claims rejected these efforts several years ago by dismissing all of plaintiffs’ claims. Plaintiffs appealed, and the United States Court of Appeals for the Federal Circuit (Court of Appeals) reversed...  On appeal to the Court of Appeals for the Federal Circuit, the panel was not certain that there was no compensable property interest under Oregon law. It accordingly certified several questions to the Oregon Supreme Court...  The Oregon Supreme Court ruled that equitable rights may well have arisen, but that specific contractual terms could have reserved those rights, or otherwise modified or eliminated them, and the outcome could change depending on that inquiry. Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145 (2010) (en banc) (“Certification Decision”) .... Thus the ultimate decision on the equitable rights of the districts and irrigators depends upon the nature of their contracts, which would require a hearing to determine...  On remand, the Court of Claims must: (1) consider the takings and Compact claims in light of the Certification Decision; 2) determine whether, for purposes of the breach of contract claims, the government can establish that contract performance was impossible within the meaning of the sovereign acts doctrine; and (3) decide the breach of contract claims as appropriate."  

IN RE ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION, Misc. Action No. 10-377 (EGS), MDL Docket No. 2165.  InEndangered Species and Wetland Report, Steve Davies discusses U.S. District Judge Sullivan's (D.D.C.) attempt to push the Center for Biological Diversity to join the settlement that seeks to resolve the many disputes over the wildlife agency's delayed responses to the many pending petitions to list species.  While the U.S. Fish & Wildlife Service and WildEarth Guardians reached an agreement, CBD has refused to sign on, and the judge stayed the case for another month directing CBD to try again.  See also, Joint Motion For Approval Of Settlement Agreement And Order Of Dismissal Of Guardians’ Claims (May 10, 2011).  

Coalition For A Sustainable Delta v. Mccamman, No. 1:08–Cv–00397 OWW GSA, 2011 Wl 1332196 (E.D. Cal. April 6, 2011)(Oliver W. Wanger, U.S. District Judge)(Memorandum Decision Granting Request For Approval Of Consent Decree)
    BACKGROUND: On January 29, 2008, the Coalition for a Sustainable Delta (and other water users interests) filed suit against Defendant John McCamman, in his Official Capacity as Director of the California Department of Fish and Game (“DFG”), alleging that State Defendant's enforcement of California's striped bass sport fishing regulations, Cal.Code Regs. tit. 14, § 5.75, cause a striped bass population that is higher than it otherwise would be in nature in the Sacramento–San Joaquin Delta and associated rivers and tributaries, which causes “take” of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, and delta smelt (collectively, “Listed Species”), in violation of section 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538. State Defendant disputes that DFG's enforcement of the striped bass sport fishing regulations causes unlawful “take.” Over a period of more than two months, Plaintiffs and State Defendants (collectively, “Moving Parties”) engaged in arms-length settlement negotiations. Defendant–Intervenors claim to have been excluded from the negotiations until late in the process, after a tentative agreement had already been reached. Defendant–Intervenors declined to sign the settlement and made a counter-offer that was not adopted by the Moving Parties. The Moving Parties now move for the entry of a order approving their Settlement Agreement under the standards applicable to consent decrees.
    EXCERPT: The Settlement Agreement is Otherwise in the Public Interest.  The Agreement serves the public interest by avoiding protracted litigation and conserving re-sources. See Citizens for a Better Environment v. Gorsuch, 718 F.2d 1126, 1117 (D.C.Cir.1983) (“Not only the parties, but the general public as well, benefit from the saving of time and money that results from the voluntary settlement of litigation.”). The Agreement requires State Defendant to address the issue of predation in a manner that is consistent with the purposes of the ESA and with the conservation and protection of the Listed Species. See United States v. Salt River Project Agric. Improvement and Power Dist., 2008 WL 5332023, at *3 (D.Ariz. Dec. 22, 2008) (finding Consent Decree served the public interest because it was consistent with the purposes of the Clean Air Act). The Settlement Agreement ensures that the combined expertise and resources of the State Defendant, NOAA Fisheries, and FWS, the state and federal agencies responsible for protecting wildlife resources (including the Listed Species) in the Delta and tributaries thereto, are brought to bear on the issue of striped bass predation. The Agreement also provides a means for funding and researching predation impacts on one or more fish species listed under the federal and/or California Endangered Species Acts in the Delta and/or the anadromous waters of the Sacramento and San Joaquin river watersheds. Settlement Agreement at 2, 17.

Delaware Dep’t of Natural Resources v. U.S. Army Corps of Engineers, 751 F.Sup.2d 715 (D. Delaware, Nov. 16, 2010).
    BACKGROUND: Delaware Department of Natural Resources and Environmental Control and related parties brought action pursuant to Administrative Procedure Act to challenge decision made by U.S. Army Corps of Engineers (Corps) and related defendants to proceed with dredging project to deepen main navigation channel of Delaware River from 40 feet to 45 feet, allegedly without obtaining requisite federal and state approval pursuant to Clean Water Act, the Clean Air Act, Coastal Zone Management Act and Delaware Code.  However, on October 26, 2010, environmental plaintiffs filed a motion to stay the proceedings because, on October 6, 2010, the National Marine Fisheries Service (“NMFS”) proposed to list Atlantic sturgeon, a fish native to the Delaware River channel, as endangered under the Endangered Species Act (“ESA”). This may result in the Atlantic sturgeon's gaining protected status under the ESA “within the next twelve months.”
    EXCERPT OF ESA PORTION OF RULING: "In determining how to exercise its discretion with respect to a motion to stay, a court considers such factors as: (1) the length of the stay requested; (2) the “hardship or inequity” that the movant would face in going forward with the litigation; (3) the injury that a stay would inflict upon the non-movant; and (4) whether a stay will simplify issues and promote judicial economy. See Landis v. North Am. Co.,  299 U.S. 248 at 254–55 (1936)  … Upon careful review, environmental plaintiffs do not present any ripe claims for the court's consideration.  The proposed listing has just recently occurred and the Corps has yet to render any determinations. A formal conference is required if the Deepening Project is “likely to jeopardize the continued existence” of the Atlantic sturgeon, 16 U.S.C. § 1536(a)(4)—a finding yet to be made by the Corps. The Corps states that it is presently conferring with NMFS to determine its obligations under the ESA in light of the proposed listing of the Atlantic sturgeon, and may request a formal conference as discussions progress … Based on the foregoing, the court finds that plaintiffs have not met their burden of persuasion that, on balance, a stay is favored in this case."  On the merits, the Court upheld the Corps action, finding that project fell within the navigation exception of the Clean Water Act, which exempted Corps from regulation under CWA and affiliated state programs, and the Corps' decision to invoke the navigation exception was not arbitrary and capricious.

Standing yes, merits no. Wildearth Guardians loses dispute over petition to list Columbian Sharp-tailed grouse


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WILDEARTH GUARDIANS v. U.S. SECRETARY OF THE INTERIOR, No. 4:08–cv–00508–EJL–LMB, 2011 WL 1225558 (D. Idaho, Feb. 11, 2011)
Report and Recommendation of Larry M. Boyle, United States Magistrate Judge.

INTRODUCTION.  This action is a challenge to the U.S. Fish and Wildlife Service's (“FWS”) 90–day finding concerning the Columbian sharp-tailed grouse (Tympanuchus phasianellus columbianus ). 90 Day Finding on a Petition to List the Columbian Sharp-tailed Grouse as Threatened or Endangered, 71 Fed.Reg. 67,318 (Nov. 21, 2006) (“Finding”). The Finding by FWS denied designation of the Columbian sharp-tailed grouse for protection as a threatened species under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Plaintiffs appealed the Finding arguing that the Secretary failed to adequately account for the bird's loss of historic range. The Secretary counters that Plaintiffs lack standing to sue, and that regardless, he fulfilled his obligations under the ESA and the Administrative Procedures Act (“APA”).

Human activities have extirpated the Columbian Sharp-tailed Grouse (CTSG)  from the majority, over 90 percent, of its historic range. Approximately 95 percent of the current CSTG population exist in one of three unconnected meta-populations located in central British Columbia, southeastern Idaho/northern Utah, and northwestern Colorado/south-central Wyoming. The remaining five percent of CSTG reside in smaller, isolated populations throughout central British Columbia, southeastern Idaho, northwestern Colorado and south-central Wyoming. The CSTG's current range is less than ten percent of its historic range.

EXCERPT RE: STANDING: In order to establish individual standing, “a plaintiff must allege (1) personal injury (2) fairly traceable to the defendant's allegedly unlawful conduct and (3) likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984).  The Kathleen Fite affidavit satisfies the standing factors: (1) Fite, as a Plaintiff employee, professional ecologist, camper, hiker, wildlife photographer and bird-watcher has a personal protectable interest sufficient for standing; (2) Plaintiffs have already detailed that the negative 90–day finding will hinder recovery efforts; and (3) reversal of that finding will redress Fite's harm.  Moreover, Fite's declaration established, with adequate detail, past and intended future use of some of the disputed land, the CSTG's range, and the particular harm to that activity, namely an inability to enjoy seeing the Grouse in its natural habitat. The injuries asserted satisfy the Lujan v.. Defenders of Wildlife, 504 U.S. 555, 560–62 (1992), requirements.

EXCERPT RE: ADEQUACY OF ANALYSIS:  Defendant contends that it has fulfilled its obligations under the APA because it reviewed all of the information submitted by Plaintiffs as well as information contained in agency files. Defendant concludes that FWS correctly rejected the petition at the 90–day stage because it lacked any information on the biological significance of the unoccupied portions of the subspecies' historical distribution. The Service concludes that it properly applied a rational interpretation of an ambiguous statutory provision (“significant portion of its range) that is entitled to deference. The Secretary points out finally that Grouse population “has, if anything, increased since 2000.” ...  The FWS 90–day Finding states,”the petition does not provide substantial information suggesting that the portion of the range where the subspecies no longer occurs is significant to the long-term persistence of the subspecies.”  FWS concludes that it is not, and explains that it “made this determination based on a combination of factors.” First, it reasoned that “the extent of habitat outside the three metapopulations is small relative to the overall range of the subspecies, roughly 4 percent of the subspecies' current occupied range.” Next, FWS explains that “there is no scientific evidence suggesting that the small, isolated populations of Columbian sharp-tailed grouse are genetically, behaviorally, or ecologically unique, or that they contribute individuals to other geographic areas through emigration.” Finally, the Finding states that “there is no scientific evidence suggesting that these habitats are important to the survival of the species because of any unique contribution to the species' natural history, e.g., for reasons such as feeding, migration, or wintering.”

It is undisputed that it is petitioner's burden to provide the FWS with a petition containing substantial information to warrant listing. At the 90–day finding stage, the agency may only consider information within the four corners of the petition. Since FWS is not permitted at the 90–day finding stage to go beyond what is provided by the petition and what is currently available in its files, the agency appropriately declined to speculate about the potential significance of the unoccupied portion of the CSTG's historic range.


WILDEARTH GUARDIANS v. U.S. SECRETARY OF THE INTERIOR, No. 4:08–cv–00508–EJL–LMB, 2011 WL 1225547 (D. Idaho, March 28, 2011).
Because the Court finds the Report and Recommendation of Judge Boyle to be well founded in law, the Court hereby accepts in their entirety, and adopts as its own, the findings made by Judge Boyle.

After procedural analysis, District Court dismisses lawsuits over FWS decisions not to designate Florida panther critical habitat


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Conservancy of SW Florida v. U.S. Fish & Wildlife Service, Case 2:10-cv-00106-JES-SPC, Document #100 (M.D.Fla. April 6, 2011)

BACKGROUND: In January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA.  Service regulations, and the Administrative Procedures Act (APA), asking the Service to establish critical habitat for the Florida Panther. The Sierra Club and numerous other environmental organizations joined in that petition in July 2009.  On February 11, 2010, in three separate but virtually identical letters, the Service denied the Conservancy’s January 2009 petition, the Center for Biological Diversity’s September 2009 petition, and the Sierra Club’s November 2009 petition, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it was in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations.  

The Florida Panther (Puma concolor coryi) was listed as an endangered species in 1967 and has remained on the Endangered Species List. See 32 Fed. Reg. 4,001 (Mar. 11, 1967). In 1969, Congress enacted the Endangered Species Conservation Act, which broadened federal involvement in the preservation of endangered species. Pub. L. No. 91-35, 83 Stat. 275 (1969). The Endangered Species Act of 1973 “represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. at 180.  Photo fromFlorida Department of Environmental Protection.

PLAINTIFFS' COMPLAINT: On June 25, 2010, plaintiffs filed a shotgun four-count Amended Complaint (Doc. #42) alleging that the Service’s denials of plaintiffs’ several petitions to designate critical habitat for the Florida Panther violated the ESA and APA. Count I alleges the denials were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the APA, 5 U.S.C. §706(2)(A), (D). Count II alleges that the denials were in violation of the requirements of § 2, 3, and 7 of the ESA and § 706(2)(A), (D) of the APA. Count III alleges that the denials were in violation of the ESA because they were not based on the best scientific data available, as required by §1533(b)(2). Count IV alleges that the denials were in violation of the ESA because the Service failed to comply with their nondiscretionary duties for designation and revision of critical habitat. Plaintiffs seek a declaratory judgment that the denials of the petition were in violation of the law for the reasons set forth in the Amended Complaint; an order vacating the denials of the petitions; an injunction remanding the matter to defendants and ordering defendants to make all necessary findings, initiate rulemaking to designate critical habitat, and set reasonable The federal defendants filed a motion to dismiss.

EXCERPT RE: COUNT II: No private cause of action is created for simply violating the policy provision in § 1531(c)(1) or the definition of “conserve” and its variations in § 1532(3). Neither provision creates any substantive duties, see Nat’l Wildlife Fed’n v. Marsh, 721 F.2d 767, 773 (11th Cir. 1983), and nothing in the statutory scheme suggests Congressional intent to create a private cause of action for such conduct.

EXCERPT RE: COUNT III: Count III alleges that the Secretary did not comply with 16 U.S.C. § 1533(b)(2), requiring him to designate and make revisions to critical habitat on the basis of the best scientific data available, and pertinent regulations thereunder. Such a claim is subject to judicial review. Bennett, 520 U.S. at 172. The difficulty with Count III is that, as discussed below, the decision to designate critical habitat for a species declared endangered prior to the 1978 amendments to the ESA is not “not discretionary” within the meaning of § 1540(g)(1)(C)... When passed in 1973, the ESA required the Secretary to determine by regulation whether species were endangered or threatened based upon specific factors and the best scientific and commercial data available, Pub. L. No. 93-205, §§ 3(A), (B), and to publish a list of such species. Id. at § 3(C)(1). Species which had been listed under the Endangered Species Conservation Act of 1969 were deemed to be an endangered species under the ESA until republished to conform to the classifications under the ESA. Id. at § 4(C)(3).  However, the current version of the ESA, in effect at the time of the petitions in this case, defines “critical habitat,” § 1532(5)(A), then provides: “Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph.” 16 U.S.C. § 1532(5)(B)… The plain meaning of the “may” in the context of the ESA is that designation of critical habitat for prior listed species is discretionary with the Secretary… Because the designation of critical habitat for species such as the Florida panther is discretionary, Count III fails to state a claim upon which relief may be granted.

EXCERPT RE: COUNT IV: Count IV also alleges that defendants did not comply with certain non-discretionary duties under the ESA. Specifically, Count IV alleges that the Secretary failed to comply with 50 C.F.R. § 424.14(d)... The Court finds that Count IV fails to state a claim upon which relief may be granted, and it therefore will be dismissed. Section 2(b)(2) of the 1982 amendments does not state that plaintiffs’ proposals or petitions to designate critical habitat are subject to the same procedures as if the Secretary had made the proposal for such designation...  The only requirement is that “the petition will be given prompt consideration and the petitioner will be notified promptly of action taken.” 43 C.F.R. § 14.3. The face of the Amended Complaint establishes that these procedures were followed.

EXCERPT RE: COUNT I and COUNT II ADMINISTRATIVE PROCEDURE ACT CLAIMS: the Secretary is not required to designate critical habitat for the Florida panther. The only action that is judicially reviewable is whether the petition was given prompt consideration and plaintiffs were promptly notified of the action taken. This is a severely limited review, but a review nonetheless. Therefore, the Court finds that plaintiffs can state a claim for relief under the APA. However, just because plaintiffs’ can state a claim for relief under the APA regarding their petition does not mean that they did state a claim in the instant case... The Court finds that the Service substantially complied with 43 C.F.R. § 14.3 and gave prompt consideration to their petition and promptly notified them of its action. Thus, plaintiffs have failed to state a claim for relief pursuant to the APA.

KEITHINKING: For species listed not pursuant to the ESA, but rather, pursuant to its predecessor laws, the standards for designation of critical habitat are different. Litigation, even in the factual context of the Florida panther, cannot rewrite the legislation, and its discretionary standards.

Squirrels bite... Judge Sullivan in D.D.C. rejects FWS rule delisting the Virginia northern flying squirrel, giving teeth to previously stated delisting criteria from 1990 recovery plan


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FRIENDS OF BLACKWATER v. SALAZAR, Civ. Action No. 09-2122 (EGS). --- F.Supp.2d ----, 2011 WL 1098964 (D.D.C., March 25, 2011). Link to opinion here.

SUMMARY. In 1985, the Virginia Northern Flying Squirrel, Glaucomys sabrinus fuscus, (the “Squirrel”) was listed as an endangered species under the Endangered Species Act (“ESA”) by the U.S. Fish and Wildlife Service (“FWS”). Over two decades later, in 2008, the FWS delisted the Squirrel… 73 Fed.Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this suit challenging the delisting…  The Court concludes that the agency violated Section 4(f) of the ESA, 16 U.S.C. 1533(f), when it effectively revised its recovery plan for the Squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.

The Virginia Northern Flying Squirrel, also known as the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus ) is a “small, nocturnal, gliding mammal” with “distinctive patagia (folds of skin between the wrists and ankles) ... supported by slender cartilages extending from the wrist bones; these plus the broad tail create a large gliding surface area and are the structural basis for the squirrel's characteristic gliding locomotion. Adults are dorsally gray with a brownish, tan, or reddish wash, and grayish white or buffy white ventrally.” Image from Friends of Blackwater and

EXCERPT RE: RECOVERY PLAN of 1990: in accordance with the requirements of Sec. 1533(f), the FWS issued an Appalachian Northern Flying Squirrels Recovery Plan (“Recovery Plan”). Ultimately, the objective of the Recovery Plan was to set forth a plan that, if accomplished, would “remove the Squirrel from the list of endangered and threatened species.” the agency first outlined three criteria necessary for downlisting the species from endangered to threatened status, stating that downlisting from endangered to threatened status will be possible when it can be documented that:
  • squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies,
  • sufficient ecological data and timber management data have been accumulated to assure future protection and management, and
  • Geographic Recovery Areas are managed in perpetuity to ensure: (a) sufficient habitat for population maintenance/expansion and (b) habitat corridors, where appropriate elevations exist, to permit migration…

EXCERPT RE: DELISTING RULE OF 2008: After the requisite notice and comment period, the FWS promulgated the Delisting Rule on August 26, 2008. 73 Fed.Reg. 50,226.  In particular, the decision to delist the Squirrel in 2008 appears to have been prompted principally by a conclusion that the Squirrel was not as rare as was previously believed. As the agency explained in the Delisting Rule: "At the time of listing, the Squirrel was thought to be an extremely rare and declining taxon that had disappeared from most of its historical range. We now know that occupancy of available habitat has increased and is much more widespread and well connected than formerly thought, and the geographic extent of the Squirrel's range approximates historical range boundaries....  Additionally, we have learned that the Squirrel has adapted to changes in the spruce ecosystem over the past hundred years, and can successfully exploit the existing habitat conditions throughout the landscape…  Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan."

EXCERPT OF CORE ANALYSIS: Congress did not stop with a simple requirement to develop and implement a recovery plan. The ESA requires that each recovery plan shall, among other things, “to the maximum extent practicable ... incorporate in each plan ... objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list” 16 U.S.C. 1533(f)(1)(B). In the event the agency finds it necessary to revise a recovery plan, Congress expressly provides a vehicle for doing so: the statute states that “the Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan .” 16 U.S.C. 1533(f)(4)(emphasis added)...  In light of the above statutory language and accompanying legislative history, the Court concludes that the agency's decision to set aside two of the criteria in its Recovery Plan constituted a revision to the Recovery Plan within the meaning of the ESA. Accordingly, the agency was required to employ notice-and-comment rulemaking.

The court is not persuaded that the agency's decision to meet only the “intent” of its Recovery Plan criteria for the Squirrel complied with the ESA. The statute unambiguously requires that criteria must be “objective” and “measurable.” 16 U.S.C. 1533(f)(1)(B)(ii). Here, no one contests that the original criteria were objective and measurable when they were adopted as part of the Recovery Plan. The first criterion, for example, called for the agency to down-list or delist only when it could be documented that “squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies.” AR at 15092. Instead of applying this Recovery Plan criterion, however, the agency now takes the position that the intent of this criterion can be met with persistence data rather than population data because, according to the agency, the “intent of this recovery criterion was to document that populations are robust.” AR at 37. Using “robust population” as a criterion does not satisfy the statutory requirement that the recovery plan criteria be “measurable” and “objective” ...  At the very least, the alteration of the first and third criteria in this manner is a revision to the recovery plan that ought to have been subjected to public notice and comment, as required by Sec. 1533(f)(4).

EXCERPT RE: REMEDY: FWS failed to comply with unambiguous provisions of the ESA, and the Court is not inclined to speculate what the consequence of a properly revised recovery plan will be on the status of this species. Furthermore, as this Court previously held in Humane Society v. Kempthorne 579 F.Supp.2d 7, 21 (D.D.C.2008) “the ESA's preference for protecting endangered species counsels strongly in favor of vacating the Delisting Rule while FWS revisits its statutory interpretation.” Id. (citing NRDC v. U.S. Dep't of the Interior, 275 F.Supp.2d 1136, 1145 (C.D.Cal.2002)). The Court therefore will vacate the Delisting Rule and remand it to the agency for further proceedings.

KEITHINKING: In other delisting decisions, FWS has adopted similar reasoning, emphasizing the non-regulatory nature of a recovery plan and rejecting some of the objective criteria.  See, e.g. Maguire Daisy discussion by ESA blawg. This decision threatens that decision (and others) and suggests a return to previous days when, as one ESA blawg reader explained, "You had to meet recovery plan criteria more or less to the letter."  

9th Circuit says ESA is constitutional... but now what?


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STEWART & JASPER ORCHARDS v. SALAZAR, No. 10-15192 (9th Cir. Mar. 25, 2011)

SUMMARY: In this appeal, we consider whether application of sections 7 and 9 of the Endangered Species Act to the California delta smelt violates the Commerce Clause in the United States Constitution. We conclude that it does not, and we affirm the judgment of the district court.

FACTUAL BACKGROUND: The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. Though once inhabiting California’s San Francisco Bay/Sacramento-San Joaquin Delta Estuary, its range has diminished. The delta smelt presently has no commercial value, but it was commercially harvested as bait in the past. The United States Fish and Wildlife Service (“Service”) listed the delta smelt as a threatened species in 1993 under the Endangered Species Act...  In 2008, the Service, acting under ESA Sec. 7, 16 U.S.C. 1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation (“Bureau”). The Biological Opinion concerned theBureau’s and the California Department of Water Resource’s operation of the Central Valley Project and the State Water Project, two of the world’s largest water diversion projects. The Biological Opinion concluded that “the coordinated operations of he water projects as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt habitat.” The Biological Opinion included a “Reasonable and Prudent Alternative,” as well as an “Incidental Take Statement.” The Reasonable and Prudent Alternative consisted of various components designed to reduce entrainment and other “taking” of smelt during critical times of the year by controlling water flows to and in the delta...  

ISSUE: Stewart & Jasper Orchards; Arroyo Farms, LLC; and King Pistachio Grove (collectively “the Growers”) sued the Service, claiming that their almond, pistachio, and walnut orchards “experienced substantially reduced water deliveries as a result of the Service’s decision to act on behalf of the delta smelt.” Among other claims, the Growers alleged that—as applied to the delta smelt—the Service’s application of ESA § 7 and power to enforce the “no-take provision” in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since “the delta smelt is a purely intrastate species and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to the operation of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority under the Commerce Clause.”

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STANDING EXCERPTS: The Growers have Article III standing to challenge the no take provision in ESA § 9 because the Service’s coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers. See Bennett v. Spear, 520 U.S. 154, 169 (1997)...  If the no-take provision in ESA § 9 is invalidated, the Growers’ injury will “likely” be redressed because the Bureau could restore water flows without worrying about whether the flows would result in a taking. See Bennett, 520 U.S. at 171. The Service conceded this point in the lower court...

EXCERPTS: RE COMMERCE: Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce. Pursuant to Gonzales v. Raich, 545 U.S. 1, 17 (2005)... when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to “commerce or any sort of economic enterprise.” See Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 610.

We and other courts have discussed at length why the protection of threatened or endangered species implicates economic concerns. To summarize:
  • A species might become threatened or endangered precisely because of “overutilization for commercial . . . purposes.” 16 U.S.C. 1533(a)(1)(B)
  • The ESA protects endangered or threatened species, in part, by prohibiting all interstate and foreign commerce in those species.
  • The ESA protects the future and unanticipated interstate-commerce value of species.
  • Regeneration of a threatened or endangered species might allow future commercial utilization of the species.
  • Interstate travelers stimulate interstate commerce through recreational observation and scientific study of endangered or threatened species.
  • The genetic diversity provided by endangered or threatened species improves agriculture and aquaculture, which clearly affect interstate commerce.
This is not an exhaustive summary, but it sufficiently illustrates that the ESA, including sections 7 and 9, “bears a substantial relation to commerce.” See Raich, 545 U.S. at 17. Thus, even though the ESA might “ensnare… some purely intrastate activity, . . . we refuse to excise individual components of that larger scheme.”

KEITHINKING: OK, so the Endangered Species Act is constitutional. Again. Why are we still debating the issue?  Isn’t commerce self-evident when ecotourists worldwide flock to places specifically to see the rare species?  There should be no need to worry about the moral, medicinal or ecological justifications for the ESA.  And, for the record, the ESA has now been upheld by the D.C., 4th, 5th, 9th, and 11th Circuits, with a cert. denied by the U.S. Supreme Court too. Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); GDFRealty Invest. Ltd. v. Norton (GDF), 326 F.3d 622 (5th Cir. 2003), writ of certiorari denied, GDF Realty Invs., Ltd. v. Norton, 125 S. Ct. 2898 (2005); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v. Babbitt (NAHB), 130 F.3d 1041 (D.C. Cir. 1997). See also, Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978).

Then again, so what?  The ESA may be constitutional, but it is also controversial.  The House of Representatives in Montana recently voted to nullify the law.  So, just imagine for a moment, the following scenario: frustrated elected officials from a state upset with the rigidity of the ESA finally pass a law (oaths of office notwithstanding) that rejects the notion of federal supremacy, and that refuses to implement an agency decision based on that Congressional Act.  When the time comes, will we really send in the troops to demand strict ESA compliance, or will Congress blink and revise the statutory scheme?  Unlike the state vs. federal tensions during the rights era, these federalism conflicts over the ESA will not occur in Mississippi or Alabama, and they will not present simplistic black vs. white disputes over racism and fundamental constitutional civil rights.  Instead, the ESA battles will play out in states like California, Florida, and Colorado, and they will involve complex disputes over broad interpretations of commerce, and fish vs. people, wolves vs. ranchers, smelt vs. almonds, and green Americans vs. other Americans.

For years now, on these pages, ESA blawg has argued that successful implementation of the ESA requires great caution, compromise and creativity.  In the ongoing struggles over the ESA, and the many lawsuits juxtaposing needs of people with protection of wildlife, extreme viewpoints will lead to counterproductive outcomes.  While the right-leaning political thinkers seek to wholly eliminate the ESA, and perhaps many other environmental laws, through yet another as-applied challenge to its constitutionality, the uncompromising left-leaning thinkers risk losing the very law for which they fight.  In the end, everyone loses sight of the fundamental purpose of the ESA: to protect species -- including humans -- and the ecosystems upon which we all depend.

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ESA litigation increasing not just in abundance, but also in procedural complexity, as demonstrated by recent court decision related to flood insurance


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Mary H. Murguia, District Judge.

BACKGROUND: Pursuant to the National Flood Insurance Act of 1968 (“NFIA”), 42 U.S.C. §§ 4001-4129, Defendant Federal Emergency Management Agency (“FEMA”) is authorized to establish and carry out the National Flood Insurance Program (“NFIP”). 42. U.S.C. §§ 4001(a), 4011, 4128. In its First Amended Complaint, Plaintiff Wild Earth Guardians (“WEG”) alleges that Defendant's administration and implementation of the NFIP in Arizona violates the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C. 4321 et seq., and two Executive Orders; 11988 and 11990.  Plaintiff Wildearth Guardians' filed a Motion for Leave to Supplement “Purported” Administrative Record.

EXCERPTS: Defendant's arguments in opposition to Plaintiff's motion... have been mooted by the Ninth Circuit's recent decision in Western Watersheds Project v. Kraayenbrink, --- F.3d 2011 ----, 2011 WL 149363 (9th Cir. January 19, 2011). The Kraayenbrink Court stated unequivocally that the scope of review for ESA citizen-suit claims is not provided for by the APA and as a result parties may submit and the court may consider evidence outside the administrative record:                                

As we explained in Washington Toxics Coalition, the APA applies only where there is “no other adequate remedy in a court,” 5 U.S.C. § 704, and -- because the ESA provides a citizen suit remedy -- the APA does not apply in such actions. 413 F.3d at 1034. Therefore, under Washington Toxics Coalition we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim.
 632 F.3d 472, 2011 WL 149363, *22 (citing Washington Toxics Coal. v. EPA, 413 F.3d 1024,1030 (9th Cir.2005). Plaintiff has brought all four of its ESA claims under the Act's citizen-suit provision. These claims therefore -- even those which Defendant's attempt to paint as challenges to final agency action -- are not governed by the APA and its record-review rule.

The Court notes that the Kraayenbrink decision did not affect Ninth Circuit precedent with respect to the standard of review in ESA citizen suit cases, which remains arbitrary and capricious. --- F.3d 2011 ----, 2011 WL 149363. *1 (“Irrespective of whether an ESA claim is brought undr the APA or the citizen-suit provision, the APA's “arbitrary and capricious” standard applies.” (citing Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir.2007)).

The Court must now determine whether Plaintiff should be permitted to do so. This is a decision that lies within the sound discretion of the trial judge. San Francisco Baykeeper, 297 F.3d at 886. Although no specific standard has been articulated, the applicable case law suggests that a party should be permitted to supplement the record with evidence that is relevant to the question of whether relief should be granted. See Friends of the Clearwater, 222 F.3d at 560

KEITHINKING: Is Pandora's box open?  If the 9th Circuit approach to ESA litigation in Kraayenbrink becomes the national standard, then a huge procedural transformation is underway.  At a minimum, ESA cases -- once adjudicated within the confines of an administrative record prepared by the federal agencies -- will now involve large amounts of "relevant" material created by the plaintiffs and intervenors in an effort to challenge the deference otherwise accorded to the federal agencies.  But taken to logical end, could discovery be next?  

Litigation over this issue traces back to 1984, when the Federal Emergency Management Agency (FEMA) refused to comply with a consultation request from the U.S. Fish and Wildlife Service (FWS) regarding the Florida Key deer and other listed species in the Florida Keys.  In 2008, the Eleventh Circuit Court of Appeals upheld a district court ruling requiring FEMA  to comply with the Endangered Species Act (ESA) in its administration of the National Flood Insurance Program (NFIP) in the Florida Keys. See, Fla. Key Deer v. Paulison, 2008 U.S. App. LEXIS 6850 (11th Cir. Apr. 1, 2008). Later that year, the National Marine Fisheries Service (NMFS) issued a Biological Opinion that determined that implementing the National Flood Insurance Program causes jeopardy to several species of Puget Sound Salmon and Orca Whales as well as adverse modification to their habitat.  In the Biological Opinion NMFS provided a Reasonable and Prudent Alternative to modify the implementation of the NFIP in a manner that would remove the jeopardy situation.  With the assistance of a focus group representative of Puget Sound communities, including a tribal community, NMFS, and the Washington Department of Ecology, FEMA produced a model ordinance containing rules to protect human development from floods while minimizing the impact of new construction and redevelopment on aquatic and riparian habitat.  The ordinance is one of several options available to local communities to demonstrate ESA compliance, and can be adopted whole cloth, or in segments to complement existing regulations. Image from Washaway Beach on the Washington State coast from Renton Community Update.

U.S. District Judge upholds FWS discretion to exclude areas from critical habitat designation in Cape Sable seaside sparrow dispute


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CENTER FOR BIOLOGICAL DIVERSITY v. SALAZAR, Civ. No. 09-1684 (RMC) (D.D.C. Mar. 16, 2011)(Memorandum Opinion, U.S. District Judge Rosemary Collyer)

SUMMARY: Did the Secretary of the U.S Department of the Interior appropriate exercise executive discretion when he failed to designate the area containing sub-population A of the Cape Sable seaside sparrow as critical habitat because the designation would most likely interfere with the Comprehensive Everglades Restoration Plan which will return more natural water flows to the Everglades? Balancing these competing interests is complex and difficult but the result is left to the Secretary... As long as his decision will not result in the extinction of the species, the Secretary has broad discretion. The Secretary insists that sub-population will persist, albeit in far less area, and that the exclusion will not result in the extinction of the bird. Plaintiffs attack his reasoning and conclusions. In the end, it is a judgment call that the Secretary is empowered to make. As the Secretary has provided a rational basis for his determinations, summary judgment will be granted to the defendants.

BACKGROUND: The need for a revised designation of critical habitat has been the subject of litigation in D.D.C. for more than a decade.  In 2006, the U.S. Fish & Wildlife Service published a proposed rule designating critical habitat for the Cape Sable seaside sparrow.    After receiving public comment suggesting that the proposed rule might inhibit Everglades restoration, because the areas proposed to be designated as critical habitat included areas that were expected to become wetter as Everglades restoration moved forward, FWS modified its draft rule and excluded some of those areas from the final critical habitat rule.  See discussion in prior ESA blawg entries.

EXCERPT: To be sure, Plaintiffs might legitimately feel that their victory has been snatched from them, just as they expected to obtain the revised critical habitat sought since 1999. However, the Secretary has fully explained his change in position from the proposed designation to the Final Rule, and he cannot be criticized for taking public comments and Everglades restoration into account in revising the designation to exclude Units 1 and 2...  The Service prepared it Proposed Rule in a hurry, forced by court deadlines, and possibly with ESA myopia. When evaluating the best available scientific information limited to the Sparrow, it proposed that Units 1 and 2 be designated critical habitat. Push back from other stakeholders forced a re-evaluation -- the exact purpose of public comment and peer review.  With a broader view of conservation of the Sparrow, other species in the Everglades, and the Everglades' ecosystem itself, the Service determined that Subpopulation A of the Sparrow would persist without designation; that the Sparrow would not become extinct, and would in fact prosper in a restored Everglades; that designation of Units 1 and 2 would hamper Everglades restoration; and that these considerations rendered exclusion of Units 1 and 2 more beneficial overall than inclusion.  In other words, designation of the Units as critical habitat would impose a static restriction on an area that is beginning a dynamic and somewhat unpredictable revitalization. The Service has been remarkably candid and straightforward about the difficult choices it faced, and its reasoning for the Final Rule...  The very complexity of these issues shows that more than one reasonable conclusion could be drawn; under such circumstances, the Secretary is entitled to exercise his discretion.

Photo of a Cape Sable seaside sparrow known to researchers as "UCLA" due to banding colors, available from wikipedia.  

FULL DISCLOSURE: Keith Rizzardi appeared as counsel for amicus in this case.

Biolgocial opinions, with subsequent effects on pesticides, can be challenged, says U.S. Circuit Court


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DOW AGROSCIENCES LLC, v. NATIONAL MARINE FISHERIES SERVICE, No. 09-1968, 2011 WL 711855 (4th Cir., Mar. 2, 2011).
The question presented by this appeal is whether a “biological opinion” issued by the National Marine Fisheries Service to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA), 5 U.S.C. § 704. The Fisheries Service, which provided the biological opinion to the EPA as part of the EPA's process of reregistering for sale and use the insecticides chlorpyrifos, diazinon, and malathion, concluded that the insecticides will destroy or harm Pacific salmonids and their habitat....  In this appeal from the district court's dismissal order, we conclude that, under Bennett v. Spear, 520 U.S. 154 (1997), the Fisheries Service's biological opinion is a final agency action and that deferring judicial review of the biological opinion until the EPA acts on reregistration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, we conclude that the Fisheries Service's biological opinion is judicially reviewable under § 704 of the APA. We reverse and remand for further proceedings in the district court.

EXCERPT RE: CONDITIONS OF THE BIOP. The final BiOp concluded that chlorpyrifos, diazinon, and malathion would jeopardize numerous salmonid species and adversely affect critical habitat for them. Specifically, it found that the exposure to these pesticides will kill salmonids and, even at low exposure levels, will reduce salmonid growth, reduce the availability of prey, and impair salmonids' swimming and olfactory senses. In short, the Fisheries Service's BiOp concluded that reregistration of the insecticides would jeopardize the survival of 27 of 28 listed salmonid species and adversely affect the critical habitat of 25 of the 26 species for which critical habitat had been designated. The BiOp, however, recommended a “reasonable and prudent alternative” to the current registrations by (1) requiring setbacks for the application of insecticides that would be 500 feet away from salmonid habitats for ground applications and 1,000 feet for aerial application; (2) limiting application in high wind; (3) requiring a 20-foot strip of vegetation near surface waters connected to salmonid habitats; (4) requiring regular reports concerning fish mortality; and (5) limiting application when soil moisture is, or is likely to become, high. The BiOp also issued an “Incidental Take Statement” requiring that the EPA implement a Fisheries Service approved effectiveness monitoring plan.

A court ruling between Washington Toxics Coalition and the Environmental Protection Agency requires vendors to post warning signs on all products containing seven pesticides that pose threats to salmonids (for more information about this case go to WATER Institute's Salmon Safe Pesticide Awareness Campaign supports retailers in upholding this ruling by posting the required hazard signs and invite them to consider selling less harmful alternatives.

KEITHINKING: The court offered six detailed points in furtherance of its reasoning that the biop was indeed final agency action.  This case will probably provide a template for any future litigation involving the finality of a biological opinion (and perhaps other federal actions too):
  • First, the BiOp has immediate and independent legal consequences that cannot be changed on later review of the EPA's action on reregistration, even if the EPA relies on the BiOp…
  • Second, if the EPA were to choose not to rely on the Fisheries Service's BiOp, then the BiOp would not be subject to any review in a judicial proceeding challenging the FIFRA reregistration order. Yet, the BiOp would still exist, having significant legal consequences, as we have noted, because it makes final findings and defines the safe harbor from civil and criminal liability…
  • Third, when a court of appeals reviews the EPA's reliance on a BiOp issued by the Fisheries Service, the court's review would not be the same as if the district court were to review the BiOp itself directly under the APA…
  • Fourth, if the EPA were to choose to follow the Fisheries Service's BiOp, any challenge to the EPA's reliance on the BiOp on judicial review could not itself cause the EPA to alter the BiOp…
  • Fifth, the plain language of FIFRA's judicial review provisions does not contain “clear and convincing evidence” that Congress intended FIFRA's judicial review provisions to govern review of a BiOp issued by a different agency-the Fisheries Service, which is within the Department of Commerce.
See also Living on Earth and ESAblawg, and Washington State University.

U.S. District Court in Idaho upholds Endangered Species Act analysis of Forest Service's roadless rule


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JAYNE v. REY, Under Secretary for National Resources and Environment, U.S. Department of Agriculture, 2011 WL 337941 (D.Idaho), Case No. 4:CV 09-015-BLW (B. LYNN WINMILL, Chief Judge).

BACKGROUND: In the 1970s, the Forest Service began to develop an inventory of roadless areas within National Forests. The Forest Service designated roadless areas of more than 5,000 acres as “inventoried roadless areas” (IRAs). Today, there are over 58.5 million acres contained in IRAs throughout the National Forest system. The lack of development within the IRAs makes them “bastions for public drinking water, plant and animal diversity, natural appearing landscapes, and other unique characteristics.” FEIS at 386.  
Concerned about encroaching development, the Forest Service promulgated in 2001 the Roadless Area Conservation Rule (“2001 Roadless Rule”) to “prohibit road construction, reconstruction, and timber harvest in inventoried roadless areas because they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics.” 66 Fed.Reg. 3244 (Jan. 12, 2001).
    The 2001 Roadless Rule was nation-wide in scope and did not contain variations tailored for each State. As a result, “some states and communities felt disenfranchised by the process.” 73 Fed.Reg. at 61457 (October 16, 2008). In 2005, the Forest Service opted for a new approach, inviting States to submit petitions to adjust the management requirements for the IRAs within their borders. In conjunction with this new approach, the Department of Agriculture (USDA) created the Roadless Area Conservation National Advisory Committee (RACNAC)…
    In 2005, Idaho's Governor began a collaborative process to draft a state petition governing the 9.3 million acres of IRAs within the State. The State submitted the petition to the RACNAC in 2006, and then-Governor James Risch and his staff met with RACNAC in Washington D.C. to discuss the petition and clarify their intent… The resulting Idaho Rule-known as the Idaho Roadless Rule-creates different categories of lands within Idaho's 9.3 million acres of IRAs based on the specific attributes of those lands, and then applies different management “themes” to each category: Wild Land Recreation (WLR); Primitive areas; or Special Areas of Historic or Tribal Significance theme (“SAHTS”); Backcountry/Restoration (BCR); and General Forest, Rangeland, Grassland (GFRG).

Endangered Species Act Analysis
    Before putting the Idaho Roadless Rule in place, the Forest Service consulted with the Fish and Wildlife Service (FWS) under Section 7 of the Endangered Species Act (ESA) after finding that the new Rule “is likely to adversely affect eight listed species.” See FWS Biological Opinion at 12. As a result of the consultation, the FWS issued a Biological Opinion finding that the new Rule is not likely to jeopardize the continued existence of any listed species. Id.
    The Idaho Roadless Rule authorizes roads and logging in IRAs that contain habitat for the grizzly bear and the caribou, two species listed under the ESA. In conjunction with its Section 7 consultation with the Forest Service, the FWS discussed the effect of the Rule on both species in a Biological Opinion…
    The FWS's Biological Opinion showed that the caribou and grizzly bear populations are small and fragile, and the adverse effects of more permissive rules for IRAs in the GFRG and BCR areas could be “serious” for the grizzly bear and “significant” for the caribou. Id. at 145, 106. In both cases, the FWS discounted the potential for adverse effects in large part due to the Forest Service's commitment of future protection. Plaintiffs argue that the FWS cannot rely on such commitments…
    While the FWS properly considered the letters, the question remains whether it properly relied on the letters to find that harmful road building was not reasonably certain to occur. Here, there is no evidence casting doubt on the IPNF Forest Supervisor's commitments. Indeed, the FWS cited specific actions taken by the IPNF consistent with its commitment to preserve the habitat for the grizzly and caribou…

    The Court finds the FWS did not violate the ESA in preparing the Biological Opinion. The Court also finds that the Forest Service did not violate NEPA in relying on the Biological Opinion or in preparing the FEIS and ROD approving the Idaho Roadless Rule. For these reasons, the Court will grant the defendants' motions for summary judgment and deny plaintiffs' motion for summary judgment. The Court will issue a separate Judgment as required by Rule 58(a).

Western Tradition Partnership, a grassroots lobbying organization, launched a campaign against the designation of "Roadless Wilderness" on 24 million acres focused in Montana, Idaho, Wyoming, and smaller parts of Washington and Oregon. Many of the areas in green on this map fell within the area at issue in the litigation described above.  Map from

FEMA settlement may enhance sea turtle protections, but may also complicate flood insurance


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In an important settlement agreement, the Federal Emergency Management Agency agreed to consult with NOAA Fisheries on the impacts of flood insurance upon nesting sea turtles. See Fort Myers News Press; Insurance News.  According to theMiami Herald, "Environmentalists hope a legal agreement will limit federal flood policies for new coastal development and force owners to rebuild heavily damaged beachside homes at their own risk."

National Wildlife Federation v. Fugate, Case No. 1:10-cv-22300-KMM (S.D. Fla. Jan. 20, 2011).

WHEREAS, Plaintiffs National Wildlife Federation and Florida Wildlife Federation commenced this lawsuit on July 13, 2010, alleging that the Federal Emergency Management Agency (“FEMA” or “Federal Defendants”) violated Section 7 of the Endangered Species Act (“ESA”) by not consulting with the U.S Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”) on the impacts of the National Flood Insurance Program (“NFIP”) in Florida on the following five sea turtle species listed as threatened and endangered under the ESA in Florida: (1) loggerhead sea turtle, (2) green sea turtle, (3) hawksbill sea turtle, (4) leatherback sea turtle, and (5) Kemp’s ridley sea turtle. Specifically, Plaintiffs have alleged that FEMA has failed to consult with the FWS and NMFS under Section 7(a)(2) of the ESA to ensure that the NFIP does not jeopardize the continued existence of the above named species, and that FEMA has also failed to use its authority to carry out programs to conserve these listed species as required by Section 7(a)(1) of the ESA; ...

Within eleven (11) months of the completion of an entry of an Order on this Settlement Agreement FEMA will prepare and submit a biological assessment (“BA”) to the FWS and the NMFS on the effects of NFIP on threatened and endangered sea turtles in coastal areas of Florida, and FEMA shall provide the Directors of the FWS and NMFS a written request to initiate formal consultation with FWS and NMFS, pursuant to 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(c), on the impacts to the five ESA-listed species identified in Plaintiffs’ complaint of (i) FEMA’s implementation of 42 U.S.C. § 4102(c); (ii) the mapping of the floodplains and revisions thereof 42 U.S.C. § 4101(a)(1), (a)(2), and (iii) the implementation of the Community Rating System, 42 U.S.C. § 4022(b)(1). FEMA will not withdraw its biological assessment or withdraw from consultation.

Coastal development, like this project in Walton County, Florida, has significant effects upon sea turtle nesting habitat.

Two agency victories: D.C. judge upholds FWS rule on piping plover critical habitat; Oregon judge denies preliminary injunction of NMFS review of Oregon Coast coho impacts


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The CAPE HATTERAS ACCESS PRESERVATION ALLIANCE v. U.S. DEPARTMENT OF the INTERIOR, 731 F.Supp.2d 15, Civil Action No. 09-0236 (RCL), (D.D.C. Aug. 17, 2010.)

SUMMARY: This case concerns environmental regulations designating critical habitat for the piping plover, a small shorebird. On October 21, 2008, defendants, the Department of the Interior and its Fish and Wildlife Service (collectively “the Service”) published a final rule designating critical habitat for the wintering piping plover in North Carolina pursuant to the Endangered Species Act (ESA). The Service revised its critical habitat designation for the units after this Court vacated the Service's original designation in 2001. See Cape Hatteras Access Pres. Alliance v. U.S. Dep't of the Interior, 344 F.Supp.2d 108 (D.D.C.2004) (CHAPA I ). The revised designation includes approximately 2,053 acres in Dare and Hyde Counties, North Carolina and consists of four habitat units... Plaintiffs challenge the revised critical habitat designations under the ESA and the National Environmental Policy Act (NEPA). Plaintiffs allege that the Service's revised designation fails to satisfy the Court's remand order in CHAPA I. Specifically, plaintiffs argue that the revised critical habitat designation (1) fails to address the statutory requirement that Primary Constituent Elements (PCE's) must be those that may require special management considerations; (2) improperly relied on a district court decision holding that if a habitat is already under some sort of management for its conservation, that particular habitat meets the definition of critical habitat; (3) fails to adequately consider other relevant information, including a 2007 off-road vehicle plan; and (4) fails to adequately consider the economic impacts of the designation. Finally, plaintiffs argue that the Service's Environmental Assessment (EA) and Finding of No Significant Impact pursuant to NEPA are inadequate... Upon consideration of the parties' cross motions for summary judgment, the oppositions and replies thereto, the administrative record, and for the reasons set for in this Memorandum Opinion, plaintiffs' motion for summary judgment will be denied.

The North Carolina coast is home to the piping plover, a small North American shorebird that “blends in well with beaches and sand flats, part of its primary habitat.” 66 Fed. Reg. 36,038-36,143 (July 10, 2001). It nests and roosts directly on sandy beaches and spends much of its time foraging for small marine crustaceans and other prey in the wet and moist areas of beaches such as “mud flats, sand flats, algal flats, and washover passes (areas where banks in the sand dunes result in an inlet).” Id. at 36,038. Piping plovers are a migratory species; the members of all three of its breeding populations winter in coastal areas of the United States from North Carolina to Texas, as well as along the coasts of Mexico and on Caribbean islands.  Photo and additional information about Atlantic populations of plovers from FWS.


OLENEC v. NATIONAL MARINE FISHERIES SERVICE, 2011 WL 310236, Civil No. 10-6427-HO. (D. Ore. Jan. 28, 2011).

BACKGROUND: Plaintiffs challenge various agency decisions that resulted in Oregon Resources Corporation (ORC) obtaining a permit to operate chromite mines in southern Coos County. 1 Plaintiffs allege that ORC's surface mines will impact 7.7 acres of wetlands and 0.6 acres of tributary streams... Plaintiffs are particularly concerned about the presence of hexavalent chromium (Cr6) in the ground water at the mine sites, and the risk that possible Cr6 and sedimentation generated during the mining process will injure fish and wildlife, pollute the watershed and threaten their health and well-being... Plaintiffs are concerned about the possible danger posed to the Oregon Coast Coho Salmon (OC Coho), a threatened species...

EXCERPT: The defendants contend that: (1) there is extensive, sound information upon which NMFS based its finding that neither the geological conditions at the sites nor the removal of chromite sands favor the formation of increased concentrations of Cr6; (2) the cumulative impacts of potential, future ORC mining was both too uncertain and too indefinite to evaluate; (3) the potential harms of sedimentation were addressed through the permit's requirements for project modifications, on-going wa-ter quality-monitoring and mitigation measures; and (4) the balance of the hardships do not favor plaintiffs' untimely challenge of an agency decision made in February and March of 2010, upon which ORC has, relied in entering into multi-million dollar contracts including construction of a processing plant in Coos Bay Oregon... The substantial evidence in the administrative record supports NMFS's determination that the Cr6 levels were not harmful to the OC Coho and that site conditions were likely to prevent harmful Cr6 levels from developing. The agencies' actions are thus entitled to deference as they are reasonable, consistent with the scientific evidence and therefore neither arbitrary nor capricious.

ESA caselaw from the District Courts: panthers, whales, and ribbon seals.


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CONSERVANCY OF SOUTHWEST FLORIDA v. UNITED STATES FISH AND WILDLIFE SERVICE, No. 2:10-cv-106-FtM-SPC, 2010 WL 5140729 (M.D. Fla. Nov. 12, 2010)(Report and Recommendation by Sheri Polster Chappell, United States Magistrate Judge.

BACKGROUND: Plaintiffs have filed this lawsuit under the Endangered Species Act (ESA), 16 U.S.C. 1531, et seq. and the Administrative Procedures Act (APA), 5 U.S.C. 702, et seq., challenging the Defendant Fish and Wildlife Service's (Service) denials of Plaintiffs' petitions to designate critical habitat for the Florida Panther (Puma concolor coryi). The Defendants move to dismiss, arguing that the decision whether to designate critical habitat for the Florida Panther is committed to agency discretion by law and therefore this Court lacks subject-matter jurisdiction to review the denial of Plaintiffs' petitions. Defendants assert that dismissal is appropriate under Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted...  Plaintiffs allege that the Florida Panther is teetering on the brink of extinction and critical habitat is crucial to their survival as a species. Thus, in January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA, Service regulations, and the APA, asking the agency to establish critical habitat for the Florida Panther...  On February 11, 2010, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, in their entirety in three separate letters, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it is in the process of working with several conservation organizations and private landowners in Collier County, Florida “to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act.” See Def. Ex. 1 at 3. The Service noted that this process, referred to as the “Florida Panther Protection Program,” may provide a framework for conservation and recovery efforts in other locations. Id.

The Florida Panther has been listed as an endangered species since 1967. 32 Fed.Reg. 4,001 (Mar. 11, 1967). The United States Fish and Wildlife Service has never designated critical habitat for the Florida Panther, because the 1973 Endangered Species Act did not require that critical habitat be designated at the time of listing of the species on the endangered list. The current form of the Act requires the Secretary of the Interior to promulgate regulations listing those species of plants or animals that are “threatened” or “endangered” under specific criteria, and to designate their critical habitat at the time of listing. 16 U.S.C. 1533. This requirement that the listing of the species and the designating of critical habitat occur concurrently was passed in the 1978 amendments to the ESA.  Through this litigation, various environmental groups seek to compel the designation of critical habitat for the species. Photo from South Florida Water Management Districttaken at Stormwater Treatment Area 5.

EXCERPT: Defendants argue that the Service's decision not to designate critical habitat for the Panther is discretionary and therefore unreviewable under the APA because Congress did not provide any standards as to when that discretion should be exercised. Def. Br. at 15. In other words, the ESA sets forth no specific criteria that the Service must consider in deciding whether to exercise its authority to designate critical habitat for pre-1978 species because the statute lacks standards governing the Service's discretionary decisions. Plaintiffs assert that there is law to apply and point to the APA's arbitrary and capricious standard (which Plaintiffs argue applies to all agency actions); the APA's standard on petitions for rulemaking, 5 U.S.C. § 553; and the ESA regulations that provide numerous, specific standards that the Service must follow once it receives a petition to designate critical habitat...

petitions to designate critical habitat. The Court disagress. Just because an agency has the authority granted by Congress to make a final determination as to whether critical habitat should be designated, does not mean that the agency has unlimited, unreviewable discretion to not follow the rules. “It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Bennett, 520 U.S. at 172. In Bennett, which involved the designation of critical habitat under the ESA, but did not involve pre-1978 species, stated that “the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that in arriving at his decision, he ‘take into consideration the economic impact and any other relevant impact,’ and use ‘the best scientific data available.’ “ Id. Therefore, since the APA's review provisions apply, this Court has subject matter jurisdiction to conduct a record review of the agency's actions and it is respectfully recommended that Defendants' Motions to Dismiss be denied.

KEITHINKING: Sorry, no comment. Too close to home...


STRAHAN v. DIODATI, Civil Action No. 05-10140-NMG, 2010 WL 5174512 (D. Mass. Dec. 16, 2010).

Pro se plaintiff Richard Max Strahan (“Strahan”) is a self-proclaimed “citizen prosecutor” who has filed numerous lawsuits on behalf of whales that become entangled in fishing gear pursuant to the “citizen suit” provision of the Endangered Species Act (“the ESA”), 16 U.S.C. 1540(g)(1). The whales and those who are concerned for their safety should be grateful for his vigilance... Strahan brought the instant action against officers of the three agencies collectively responsible for licensing fishing gear deployed in Massachusetts coastal waters: Paul Diodati, in his official capacity as Director of the Massachusetts Division of Marine Fisheries; Ian Bowles, in his official capacity as Secretary of the Massachusetts Executive Office of Energy and Environmental Affairs; and Mary Griffin, in her official capacity as Commissioner of the Massachusetts Department of Fish and Game (collectively “the defendants”).  Strahan seeks a declaratory judgment that the defendants have violated Secs. 9(a) and (g) of the ESA, 16 U.S.C. § 1538(a) and (g). Strahan also seeks a permanent injunction a) to enjoin the defendants from continuing to license certain commercial fishing equipment that allegedly entangles whales in violation of the ESA and b) to require them to fund the development of “whale-safe” gear and efforts to increase the size of the whale population.

EXCERPT: In support of his June 2010 motion to dismiss without prejudice, Strahan argues that: he is unable to prosecute his claims meaningfully because he is indigent and no longer lives in the Boston area and the Court's rulings have “banned” him from further discovery, thereby precluding him from “successfully” prosecuting the defendants.  The Court will deny the plaintiff's motion to dismiss without prejudice for several reasons: (1) Plaintiff waited until the case was more than five years old (and scheduled for trial two months later) to seek dismissal, (2) Strahan argues for dismissal based on the Court's legal rulings regarding the scope of discov-ery and his dissatisfaction with the factual record subsequently developed, (3) Defendants have already spent a prodigious amount of time on this litigation, including in discovery and (4) the Court has already conducted hearings, re-viewed numerous documents, imposed a reporting requirement during the stay, decided motions and set a date for trial.  The plaintiff's stated reasons for seeking dismissal are insufficient, as “voluntary dismissal should be refused when a plaintiff seeks to circumvent an expected adverse result.”  Furthermore, to grant the plaintiff's motion at this stage in the case would cause the defendants to suffer legal prejudice. Thus, plaintiff's motion will be denied.

KEITHINKING: A cautionary note for the citizen prosecutor: Courts "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." ESA, 16 U.S.C. 1540(g).


CENTER FOR BIOLOGICAL DIVERSITY v. LUBCHENCO, No. C-09-04087 EDL, 2010 WL 5288188 (N.D. Cal. Dec. 21, 2010).

In this civil action for declaratory and injunctive relief, Plaintiffs Center for Biological Diversity and Greenpeace (collectively, “Plaintiffs”) allege that Defendants Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration (“NOAA”), Gary Locke, the United States Secretary of Commerce, and the National Marine Fisheries Service (“NMFS”) violated the Endangered Species Act (“ESA”), 16 U.S.C. 1531, et. seq., in failing to list the ribbon seal as threatened or endangered.  Endangered and Threatened Wildlife; Notice of 12-Month Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species, 73 Fed.Reg. 79822. The parties filed cross-motions for summary judgment, which were fully briefed. In addition, the State of Alaska filed two amicus briefs in support of Defendants. The Court held a hearing on September 2, 2010. For the reasons stated at the hearing and in this Order, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.
The ribbon seal primarily inhabits Russia's Sea of Okhotsk and the Bering and Chukchi Seas off of western Alaska.  The species is strongly associated with the sea ice during its whelping, mating and molting periods from mid-March through June. Sea ice is essential to ribbon seal survival. However, the sea ice habitat has been shrinking. For example, there is evidence that for the pe-riod from 1979 through 2006, the sea ice extent in the Okhotsk Sea declined by 9.3% per decade.  Photo from NOAA

EXCERPT: Plaintiffs argue that the twelve-month finding was arbitrary and capricious because: (1) NMFS failed to engage in a rational analysis of whether any distinct population segment (“DPS”) of the ribbon seal may warrant listing or whether the species is threatened or endangered in a “significant portion of its range;” and (2) NMFS relied on an irrational time frame for the “foreseeable future.” Plaintiffs also argue that NMFS erred by not utilizing the best available science in making its twelve-month finding.  On balance, Plaintiffs have failed to show that Defendants' decision on this issue was arbitrary or capricious.

KEITHINKING: In a detailed and fact specific-opinion, the Court deferred to NOAA's analysis on every issue. Of note was the Court's support for Alaska's position, and the rejection of the "err in favor of the species" argument made by the plaintiffs: "However, as the Court in Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 947 (D.Or.2007) observed: 'Although an agency must still use the best available science to make that listing determination, Conner v. Burford, 848 F.2d 1441 (9th Cir.1988) cannot be read to require an agency to give the benefit of the doubt to the species under Section 4 if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. See also Alaska Amicus brief Ex. A (EPIC v. NMFS, C-02-5401 EDL at 15-16 (Mar. 2, 2004))."

ESA news from the Bay-Delta: Judge Wanger rejects current biological opinion, while vocal constituents reject the Bay Delta Conservation Plan alternative


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DELTA SMELT CONSOLIDATED CASES, Memorandum Decision Re; Cross Motions for Summary Judgment, (E.D.Cal., Dec. 14, 2010)(Wanger, J.)
Case Nos. 1:09-cv-00407 OWW DLB, 1:09-cv-00480-OWW-GSA, 1:09-cv-00422-OWW-GSA, 1:09-cv-00631-OWW-DLB, 1:09-cv-00892-OWW-DLB

BACKGROUND: These consolidated cases arise out of the continuing war over protection of the delta smelt (Hypomesus transpacificus), an ESA-threatened species, and associated impacts to the water supply for more than half of the State of California. The United States Fish and Wildlife Service’s (“FWS”) issued a new delta smelt biological opinion on December 15, 2008 (“2008 Smelt BiOp” or “BiOp”). This BiOp concluded that proposed Central Valley Project (CVP) and State Water Project (SWP) operations are “likely to jeopardize the continued existence of” the delta smelt and “adversely modify” its critical habitat.   The BiOp includes a required Reasonable and Prudent Alternative (“RPA”) designed to allow the projects’ continued operations without causing jeopardy to the species or adverse modification to its critical habitat. The RPA includes operational components designed to reduce entrainment of smelt during critical times of the year by controlling (limiting) water exports from the Delta by the Projects.

CONCLUSION: It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect a substantial part of the State’s water supply, opposes as unjustified and based on bad science some of the RPA Actions. It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent over appropriation of project water supplies for species protection. In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases.

EXCERPT (one tiny piece of a 225-page opinion ): Plaintiffs complain that the “Justification for Flow Prescriptions in Action 1” section does not represent the best available science because it is based upon analyses of gross (or “raw”) salvage (i.e. the absolute number of fish salvaged over a given time period). The use of raw salvage data, as opposed to salvage data scaled to population size, is problematic because raw salvage figures do not account for the size (or relative size) of the smelt population.  The BiOp admits as much, and concedes that the analysis assumes that “as the population of Delta smelt declined, the number of fish at risk of entrainment remained constant.” BiOp at 349. Considering raw salvage numbers alone provides no means of distinguishing an event in which 10,000 fish are salvaged out of a population of 20,000 from an event in which 10,000 fish are salvaged from a population of 20 million...  FWS nowhere explains its decision in the BiOp to use gross salvage numbers in Figures B-13 and B-14, and does not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. This was arbitrary, capricious, and represents a failure to utilize the best available science in light of universal recognition that salvage data must be normalized. This significant error must be corrected on remand.

SEE ALSO: New York Times, San Francisco Chronicle, and LA Times.

KEITHINKING: While Judge Wanger's decision reflects judicial rejection of the current state of affairs, ongoing efforts to find creative new solutions have also encountered obstacles and rejections.  The Bay Delta Conservation Plan, a federal and state initiative, represents an attempt to redefine the regional water distribution systems in a manner that also protects native species for the next 50 years. The grandiose Plan even proposed a massive tunnel, moving Sacramento River waters around the delta region while avoiding young delta smelt from being drawn into the surface water pumping stations. See the Highlights of the BDCP (Dec. 2010).   Potential costs for the proposal exceed $14 billion over 10 years, and billions more thereafter.  See FAQs.  And criticism of the plan is intensifying.  See New York Times.  In a press release, four leading conservation groups declared the Plan's documents "deeply flawed, incomplete, and disappointing."  Meanwhile, the President of the Westlands Water District, an important project participant, constituent, and funding source says “We were sold a bill of goods once again by the federal government.”  

Judge Wanger said it: "The law alone cannot afford protection to all the competing interests at stake in these cases."  And unfortunately, with the Bay Delta Conservation Plan in crisis, the competing interests are refusing to compromise.  So with the judiciary unhappy, the executive branch failing, and the California legislature equally unlikely to find an acceptable compromise, where do we go from here?  

Together, the Sacramento-San Joaquin River Delta and San Francisco Bay comprise the largest estuary on the West Coast. The Bay-Delta is the hub of California’s water-delivery system, a source of water for more than 20 million Californians and for millions of acres of farmland in the San Joaquin Valley, and habitat for hundreds of species of wildlife, including the threatened Delta smelt, which spends its entire one-year lifespan in the estuary.  In addition, winter-, fall- and spring-run salmon migrate through the Delta on their way to spawn in Central Valley rivers.  Map and caption information from USGS.

9th Circuit ruling on bull trout consultation could have long term ramifications


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WILD FISH CONSERVANCY v. SALAZAR, No. 09-35531, --- F.3d ----, 2010 WL 4948477 (9th Cir. Dec. 7, 2010)(Opinion by MARSHA S. BERZON, Circuit Judge).

SUMMARY: We are faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.2008); Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir.1994). The fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact.  This action, brought by the Wild Fish Conservancy (“the Conservancy”), centers on a biological opinion (“BiOp”) addressing the effects of the operations of the Leavenworth National Fish Hatchery (“the Hatchery”) on the bull trout. See U.S. Fish & Wildlife Serv., Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008)(hereinafter “2008 BiOp”). The bull trout is listed under the Endangered Species Act (“ESA”), 16 U.S.C. Secs.1531-44, as threatened throughout its range. See Determination of Threatened Status for Bull Trout in the Coterminous United States, 64 Fed.Reg. 58,910 (Nov. 1, 1999). The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (“the Service”), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. Because the Service in several respects failed to articulate a rational connection between the facts found and the “no jeopardy” conclusion, we reverse and remand.

EXCERPT RE: SCOPE OF THE ACTION: We consider first whether the Service permissibly defined the scope of the action as the operations and management of the Hatchery for a period of five years. The Conservancy objects to framing the operation of an ongoing project as a short-term action, arguing that the Service's choice of the action's scope allowed it to avoid considering whether the operations of the Hatchery would lead to the extirpation of the Icicle Creek bull trout population at some point beyond the five-year period, as well as whether that loss, if it occurred, would compromise the interim recovery unit. The Service maintains that its choice of the five-year term was not arbitrary and capricious because, as the 2008 BiOp states, the Hatchery anticipated that the replacement of its water intake system in 2010 (now delayed, as we have noted) would require it to reinitiate section 7 consultation.

Evaluating the scope of an agency action can be significant in determining the adequacy of a biological opinion. “The scope of the agency action is crucial because the ESA requires the biological opinion to analyze the effect of the entire agency action.”   Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir.1988). We “interpret the term ‘agency action’ broadly,” because “caution can only be exercised if the agency takes a look at all the possible ramifications of the agency action.” Id. (internal quotation marks and alterations omitted)...

What the Service's argument does not acknowledge is that the Hatchery has been operating for seventy years and is expected to continue operating into the future. The Hatchery simply made a decision, endorsed by the Service, to define the action as a five-year term of operations, when it might as easily have chosen a thirty-year term or a one-year term...

To give meaning to the ESA's exhortation that agencies ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species,” 16 U.S.C. Sec. 1536(a)(2), the Service was required to issue a comprehensive biological opinion taking a long view of the Hatchery's effects on the bull trout, or to explain adequately why any such effort would be unproductive in assessing the long-term impact of the Hatchery's operations on the bull trout. Here, the Service did neither. The decision to limit the analysis in the 2008 BiOp to a five-year term of operations and management was therefore arbitrary and capricious.

EXCERPT RE: INCIDENTAL TAKE: “Incidental Take Statements set forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”   Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1249(9th Cir.2001). Preferably, the trigger is numerical, but the Service may use a surrogate - for example, changes in ecological conditions affecting the species...

Here, the Service has set a clear numerical cap, but a numerical cap is useful only insofar as the action agency is capable of quantifying take to determine when the trigger has been met. See Or. Natural Res. Council, 476 F.3d at 1039 (explaining that the incidental take statement must”set a clear standard for determining when the authorized level of take has been exceeded”); Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1187 (N.D.Cal.2003), cited with approval in Or. Natural Res. Council, 476 F.3d at 1038 (“It is arbitrary and capricious to set the trigger at one animal unless defendants can adequately detect the taking of a single animal.”). Thus, the Service must either specify monitoring and reporting requirements with respect to the twenty-bull trout limit or, if appropriate, select a surrogate trigger that can be monitored. Therefore, we hold that the ITS failed to establish a meaningful trigger for renewed consultation after the take exceeded authorized levels.

Bull trout are a cold-water fish of relatively pristine stream and lake habitats in western North America.  There was a time when bull trout, like most salmonids, were wildly abundant in the six western states of Oregon, Washington, California, Nevada, Idaho and Montana.  They have the most specific habitat requirements of salmonids, including the "Four C's": Cold, Clean, Complex and Connected habitat.  Bull trout decline can be contributed to human activities such as development, logging and agriculture that have degraded its habitat.  Of all salmonids, bull trout are excellent indicators of water quality. Today, water quantity has decreased, water quality has diminished, and introduced, non-native fish like brook and lake trout have competed with bull trout for their native habitat.  Caption info from FWS, photo by Joel Sartore/National Geographic Stock with Wade Fredenberg from National Conservation Training Center.

KEITHINKING:  While reasonable minds may differ, some aspects of this decision can be understood as another instance of an agency's failure to explain itself.  For example, the 9th Circuit opinion says the biological opinion "did not adequately address the effects" of a pollution abatement pond, and failed to explain how continuing downward trends could still lead to the conclusion finding no appreciable negative impact.  But two other portions of the opinion, as excerpted above, deserve further discussion.

If rigidly enforced, the "scope of the action" portions of this decision could be transformational for future ESA consultations in the 9th Circuit.  Unfortunately, the 9th Circuit provided little direction on the proper scope of a consultation, other than to say take a "long view."  But what does that really mean, and what happened to judicial deference?  There is certainly merit to the idea that the consultation on a long-lasting new dam or similar structure, and its effects, should not be minimized by looking forward only five years, but in this case, there was an an equally reasonable argument that physical and operational changes were expected within five years, leading to a new consultation thereafter.  I join Circuit Judge Fisher's dissent on this point.  Moreover, I wonder whether the 9th Circuit fully considered the practical realities of its "think in the long-term" directive.  Consultation must use "the best scientific and commercial data available," but what does that phrase mean when applied to a projection looking 50 years into the future?  My answer: the longer the period of evaluation, the less reliable the conclusions.  Consultations could be reduced to exercises in trend projections, modelling, and even sheer speculation, meaning that every decision can and will be second-guessed.

Judge Fisher did not dissent on another potentially controversial aspect of this decision.  The majority opinion elaborated on an emerging line of cases requiring incidental take to be quantified, and the 9th Circuit emphasized the need to monitor and report incidental take.  In the world of endangered species, however, monitoring and reporting incidental take can be an extraordinarily difficult task.  To begin with, the species are rare; quantifying the death of one small fish can be a whale of a task.  Furthermore, while it might be possible for FWS to determine the number of bull trout caught in the water intake system for a dam, it will prove more difficult (and probably, more expensive) to quantify whether an action "significantly disrupts their breeding behavior by preventing or delaying their spawning migration."  Perhaps this type of evaluation might be possible at a population level -- for example, if the peak of spawning migration were delayed by weeks, then one might conclude that something significant had changed.  But can a FWS biologist really conclude, from that data, that the subject of the consultation (and not hundreds of other factors) caused the delay?  Can that same population level data also be used to calculate a specific numeric level of incidental take of individual fish?  Perhaps, once again, this is merely a case where FWS failed to explain itself.  But the opinion also exposes the challenge created by the judiciary's increasing emphasis on quantified incidental take.


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D.Mass denies injunction against U.S. Navy and hints at mootness; D.D.C. rejects catalyst theory for attorney's fees where court lacked jurisdiction from the outset.


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STRAHAN v. ROUGHEAD, C.A. No. 08-cv-10919-MLW, 2010 WL 48278 (D.Mass. Nov. 22, 2010)(WOLF, District Judge).

SUMMARY: This case involves the Navy's obligations to protect certain federally-protected whale species (the “Federally Protected Whales”) under the Endangered Species Act (the “ESA”), 16 U.S.C. 1531 et seq. Plaintiff Richard Max Strahan (“Strahan”) filed the complaint in this action pro se, seeking declaratory and injunctive relief against the defendants, Admiral Gary Roughead and Secretary Raymond E. Mabus of the United States Navy, and Robert M. Gates, the Secretary of the United States Department of Defense (collectively “the Navy”). Essentially, Strahan contends that by operating Navy vessels and conducting military training operations in United States coastal waters in a manner that kills and injures four federally protected whales species and adversely alters their federally-designated habitats, and by failing to consult with the National Marine Fisheries Service (the “NMFS”) regarding the impact of its operations, the Navy is violating various provisions of the ESA.  The Navy moves for dismissal for lack of subject matter jurisdiction. Strahan moves for a preliminary injunction, as well as for orders compelling the Navy to comply with his requests for jurisdictional discovery, to lift the stay that currently exists, to compel the Navy to send him e-mail filings, and to schedule a conference. For the reasons described below, the stay in this case is being lifted; the Navy's motion to dismiss for lack of subject matter jurisdiction is being denied, without prejudice to renewal with regard to the question of mootness following further submissions and, if necessary, a hearing on the issue; Strahan's motion to compel jurisdictional discovery is being allowed in part and denied in part, also without prejudice to renewal should the Navy again move to dismiss on jurisdictional grounds; Strahan's motion for a preliminary injunction is being denied; and Strahan's motion to compel e-mail filings is being denied. Strahan's motions to schedule a conference are being allowed.

EXCERPT RE: INJUNCTION: In view of the harmful impact that Strahan's requested preliminary injunctive relief would have on critical Naval operations, “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy.” Winter, 129 S.Ct. at 378. Therefore, Strahan's motion for a preliminary injunction is being denied.

EXCERPT RE: MOOTNESS: These exhibits suggest that the Navy's recent Section 7 consultation addressed at least some of the actions at issue in Strahan's Complaint. However, it is not clear from these exhibits that the consultation addressed the full scope of the challenged actions, which encompass Naval operations in or adjacent to Federally Protected Whales' marine habitat along the entire United States coastline. The actions challenged in Strahan's Complaint are not limited to the Naval training activities that were, as of June 5, 2009, intended to take place in particular areas along the southeastern United States coastline between June, 2009 and June, 2014, and which appear to have been the primary focus of the Navy's recent Section 7 consultation. ... Thus, although the exhibits submitted by the Navy suggest that the Section 7 consultations it has engaged in address at least some of the actions at issue in this case, the evidence presented does not demon-strate that Count III is moot.

AND ONE MORE EXCERPT: Plaintiff's Notice and Motion that the ECF Filing System is Denying Me Access to Case Filings as Part of the District Court's Segregationist Polices [sic] Against Non-Attorney Petitioners (Docket No. 27) is DENIED.

In a dispute over protection of four federally-protected species: the Northern Right Whale (Eubalaena glacialis ), the Humpback Whale (Megap-tera novaenagliae ), the Fin Whale (Balaen-optera physalus ), and the Blue Whale (Balaenoptera musculus ), the pro se Plaintiff, Strahan, particularly emphasizes the harm to Northern Right Whales, “the most endangered species of whale in the world,” which has “been in continuous decline for at least the last three decades.” Complaint at 6. The principal way in which humans contribute to Northern Right Whale mortality is through “ship strikes and entanglement in commercial fishing gear.” Id. Consequently, the remaining population of the Northern Right Whale in the Atlantic Ocean is in the low 200s. Complaint at 7.  Photo of Humpback whales in the New England shipping channels by K. Sardi, Whale Center of New England available from NMFS Northeast Regional Office.


CONSERVATION FORCE v. SALAZAR, Civil Action No. 09-496(JDB), --- F.Supp.2d ----, 2010 WL 4870572 (D.D.C., Nov. 30, 2010)(JOHN D. BATES, District Judge).

SUMMARY: Now before the Court is the motion by plaintiffs-organizations and individuals that support sustainable hunting of the Canadian wood bison-for attorneys' fees and costs against defendants Ken Salazar, in his official capacity as Secretary of the Interior, Rowan Gould, in his official capacity as Director of the U.S. Fish and Wildlife Service, and the U.S. Fish and Wildlife Service. Plaintiffs seek fees pursuant to section 11(g)(4) of the Endangered Species Act of 1973 (“ESA” or “the Act”), 16 U.S.C. § 1540(g)(4), which provides that a court “may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.” Id. Plaintiffs seek $106,194.30 in attorneys' fees and costs pursuant to § 1540(g)(4).  Plaintiffs brought this suit in March 2009, alleging that the Secretary of the Interior had violated several provisions of the ESA in his treatment of the Canadian wood bison. In particular, plaintiffs claimed that the Secretary violated the ESA by failing to timely act on a petition to “downlist” the wood bison from “endangered” to “threatened.” Individual plaintiffs also challenged the Secretary's failure to process their applications to import wood bison hunting trophies. On June 7, 2010, the Court denied plaintiffs' motion for summary judgment and dismissed the case, ruling that the Court lacked jurisdiction over plaintiffs' claim for the Secretary's untimely response to the downlisting petition and that the individual plaintiffs' permit processing claims were moot. Conservation Force v. Salazar, 715 F.Supp.2d 99 (D.D.C.2010). Now, plaintiffs seek attorneys' fees under the “catalyst” theory, which, where applicable, permits courts to award a party attorneys' fees when the party obtains, through settlement or otherwise, substantial relief prior to adjudication on the merits. For the reasons explained below, the Court will deny plaintiffs' motion for attorneys fees.

EXCERPT: To be sure, multi-year delays to process plaintiffs' permit applications certainly do not indicate an efficient permit processing system. However, to sue under the ESA's citizen-suit provision, plaintiffs must identify a non-discretionary, statutory duty under section 1533 to process their applications by a specific date. They cannot. Hence, the ESA citizen-suit provision does not authorize judicial review of plaintiffs' permit processing claims, and plaintiffs are not eligible for attorneys fees under the ESA's attorneys' fees provisions on those claims.  Assuming that plaintiffs could have brought the permit processing claims under the APA, they would still not be eligible to recover attorneys' fees. The APA provides for the recovery of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, which only permits fee-shifting to a “prevailing party” and does not allow recovery under the catalyst theory. See Buckhannon, 532 U .S. at 610.

State of Idaho's slickspot peppergrass lawsuit, filed against federal government in D.D.C., transferred to Idaho


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Governor C.L. “Butch” Otter v. Ken Salazar, Civil Case No. 09-2156(RJL), 718 F.SUPP.2D 62 (D.D.C., June 19, 2010).

SUMMARY: Governor, state Office of Species Conservation, and others brought action against various federal government officials and the United States Fish and Wildlife Service challenging the Service's decision to list slickspot peppergrass as a threatened species through its range under the Endangered Species Act (ESA). Defendants moved to transfer venue to the District of Idaho.  The District Court, Richard J. Leon, J., held that: (1) venue would be proper in the District of Idaho, and (2) interests of justice and convenience of the parties and witnesses warranted transfer.

EXCERPT: the interests of justice strongly favor transfer to Idaho. How so? First, the plaintiffs' choice of forum is entitled to less deference because the District of Columbia is not their home forum. See Shawnee Tribe v. United States, 298 F.Supp.2d 21, 24 (D.D.C.2002). Second, the plaintiffs' forum choice has no meaningful ties to the controversy and no particular interest in the parties or subject matter. See McGovern v. Burrus, 407 F.Supp.2d 26, 28 (D.D.C.2005). Indeed, the only connection to the District of Columbia is the fact that the Department of the Interior, headquartered in this District, has ultimate responsibility for the administration of the ESA. But as the record makes clear, the role played by officials in Washington was minor, and the Secretary did not have any special involvement in the listing decision. Final Rule, 74 Fed. Reg. at 52,063 (stating that the “primary authors of this document are staff members of the Idaho Fish and Wildlife Office”). In fact, the decision at issue here was drafted mainly by Service staff in Boise, as were the two previous decision on the status of the slickspot peppergrass. ... The majority of the public comments the Service received came from the residents of Idaho, and those from the regulated community impacted by the listing are also located in Idaho. ... In short, this action's ties to the District of Columbia are tenuous, at best, and any impact of the listing determination is completely localized to Idaho: all potential activities that may affect the slickspot peppergrass are located in Idaho...

Slickspot peppergrass, Lepidium papilliferum, is an herbaceous annual or biennial plant endemic to the sagebrush-steppe ecosystem in southwestern Idaho. See Listing Lepidium papilliferum (Slickspot Pepper-rass) as a Threatened Species Throughout Its Range (“Final Rule”), 74 Fed. Reg. 52,014, 52,015 (Oct. 8, 2009) (codified at 50 C.F.R. § 17.12 (2010)). Specifically, slickspot peppergrass is found in the Boise Foothills, Snake River Plain, and the Owyhee Plateau. See id. at 52,201. There is no evidence that the species has “ever been found anywhere outside of its present range in southwestern Idaho.” Id. at 52,022.  Photo by Bureau of Land Management available at  

Sea lions eat endangered salmon, but 9th Circuit demands further explanation of NOAA decision allowing sea lion culling to reduce salmon predation


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HUMANE SOCIETY OF THE UNITED STATES v. CARLOS GUTIERREZ, Case No. 08-36038 (9th Cir. Nov. 23, 2010).

BACKGROUND: In March 2008, the National Marine Fisheries Service (NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows “the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks” that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. Sec. 1389(b)(1). We must decide whether the agency’s action was “arbitrary” or “capricious” within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.

Like seals and walruses, California sea lions are pinnipeds — marine mammals having fin-like flippers for locomotion. The Bonneville Dam is on the Columbia River, which serves as a migration path for a number of ESA-listed salmonid populations, including five salmon and steelhead populations. Before 2001, few California sea lions were observed feeding in the area of the dam. In recent years, however, sea lion predation has become more prevalent.  In November 2006, the states of Washington, Oregon and Idaho applied to NMFS for authorization to lethally remove California sea lions from the Bonneville Dam area. NMFS found that California sea lions collectively were having a significant negative impact on the decline or recovery of the listed salmonid populations. NMFS authorized the states to kill California sea lions meeting these criteria for an initial period of five years, with the possibility of a renewal for an additional five years. Caption text from 9th Circuit opinion, photo from NOAA.

HOLDING: Here, we hold that NMFS has not offered a satisfactory explanation for its action. First, the agency has not adequately explained its finding that sea lions are having a “significant negative impact” on the decline or recovery of listed salmonid populations given earlier factual findings by NMFS that fisheries that cause similar or greater mortality among these populations are not having significant negative impacts. Second, the agency has not adequately explained why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of these salmonid populations. These procedural errors require us to direct the district court to vacate NMFS’s decision and remand to the agency to reconsider the action or provide a fuller explanation.

ADDITIONAL EXCERPT: NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them. We do not suggest that an agency has a duty to identify and address any potential tension between current and earlier factual determinations in marginally related administrative actions. But in this case the agency’s seemingly inconsistent approach to, on the one hand, fishery and hydropower activities, which are deemed not to be significant obstacles to the recovery of listed salmonid populations, and, on the other hand, sea lion predation, which is deemed to be a significant barrier to salmonid recovery, has occupied the center of this controversy from the start. The issue surfaced prominently in the task force proceedings, see generally Minority Report, Final Report and Recommendations of the Marine Mammal Protection Act, Section 120 Pinniped-Fishery Interaction Task Force: Columbia River (Nov. 5, 2007), click link here, and has been raised repeatedly and forcefully by the Marine Mammal Commission, which is a federal entity possessing expertise on issues relating to the protection of marine mammals, see 16 U.S.C. § 1402, throughout the
administrative decisional process...

In so holding, we do not impose an undue burden on NMFS on remand. The APA requires only a “cogent explanation.” Nw. Envtl. Def. Ctr., 477 F.3d at 691. We recognize the challenges NMFS faces in addressing salmonid conservation and recovery in the Columbia River, the efforts it has taken to address multiple sources of mortality and the practical difficulties presented by uncertainties and changing conditions onthe ground. We also recognize that sea lion predation is a serious and potentially significant problem in this location, and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances. As judges, our limited role is to ensure that NMFS has properly determined that those specific circumstances exist. To do so, we require an explanation from the agency that enables meaningful judicial review. We conclude that a remand is necessary in this case to permit us to fulfill our function.

KEITHINKING: As the 9th Circuit noted, a 2005 agreement between NMFS, the states of Oregon and Washington and several Indian tribes, allows fisheries to take between 5.5 and 17 percent of listed Columbia River salmonids annually, depending on the size of the run.  Humans, therefore, were allowed to take salmon, and the take was not deemed to be significant.  But when NOAA sought to curtail a take of salmon by sea lions, the 9th Circuit demanded further explanation of why humans can take double-digit percentages of the fish while sea lions must take less than 1 percent.  Has the 9th Circuit rejected anthropocentrism, and given humans, and sea lions, equal rights to fish?

FOR NEWS COVERAGE, visit AP coverage on OregonLive and the New York Times

Remand of rule listing polar bear as a threatened species merely delays the controversy (and the appeals...)


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In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND Sect. 4(D) RULE LITIGATION, Misc. Action No. 08-764 (EGS), MDL Docket No. 1993, --- F.Supp.2d ----, 2010 WL 4363872 (D.D.C., Nov. 4, 2010) link here (EMMET G. SULLIVAN, District Judge.).

BACKGROUND: In May 2008, the U.S. Fish and Wildlife Service (“FWS”) issued its final rule listing the polar bear as a “threatened” species under the Endangered Species Act of 1973, which affords special protections to endangered and threatened fish and wildlife species. See Determination of Threatened Status for the Polar Bear (Ursus maritimus ) Throughout Its Range, 72 Fed.Reg. 28,212 (May 15, 2008) (the “Listing Rule”). The publication of the Listing Rule triggered many lawsuits.

CORE HOLDING: ...the Court concludes that FWS failed to adequately explain the legal basis for its Listing Rule. The federal defendants contend that, as a matter of law, an “endangered species” must be in imminent danger of extinction. The Court rejects the federal defendants' erroneous conclusion that an imminence requirement is mandated by the plain meaning of the statute. Because the federal defendants failed to acknowledge ambiguities in the definition of an endangered species, this Court can neither defer to the agency's plain-meaning interpretation nor impose its own interpretation of the statute; instead the Court must remand the Listing Rule to the agency to treat the statutory language as ambiguous. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C.Cir.2006). The Court therefore REMANDS the Listing Rule to the agency for this limited purpose.

In its existing rule, FWS found that all polar bear populations will be affected by substantial losses of sea ice within the foreseeable future (which it defined as 45 years), although different populations will be affected at different rates and to different degrees. On this basis, FWS concluded that projected habitat losses alone qualify the polar bear as a threatened species throughout its range. FWS also found, however, that the polar bear is not currently endangered in any portion of its range because the species is abundant, any observed population declines have been gradual rather than precipitous, and reproduction and recruitment are still occurring in all polar bear populations. Photo (and attempt at humor related to this controversial topic) from .

ADDITIONAL EXCERPT: Upon careful review of the legislative history, the Court is unpersuaded by the federal defendants' contention that the legislative history unambiguously requires imminent extinction for a species to be designated as endangered. Indeed, the Court notes that the word “imminent” appears once in the entire legislative history, in a passage that refers only cryptically to the definition of an endangered species. SEN. REP. No. 93-307, at 3 (1973). This single statement is not sufficient to overcome a fundamental ambiguity in the text and structure of the statute. See Humane Soc'y of the United States v. Kempthorne, 579 F.Supp.2d 7, 20 (D .D.C.2008) (Friedman, J.) (finding single inconclusive statement from the legislative history insufficient to dispel ambiguity in the ESA). Moreover, although the legislative history does emphasize that an endangered species “is” (currently or presently or actually) in danger of extinction, whereas a threatened species is “likely to be-come” so endangered, this basic distinction is already apparent from the text of the statute itself and does not compel a conclusion that an endangered species must be in danger of imminent extinction.  Having carefully considered the text, structure, and legislative history of the ESA, the Court is persuaded that Congress intended to allow the agency flexibility to make a case-by-case determination of when a species is “in danger of extinction,” based on the five statutory listing factors and the best available science for that species. Therefore, the Court finds that the ESA does not compel the federal defendants' plain-meaning interpretation that an endangered species must be in danger of imminent extinction. For the reasons stated above, the Court concludes that the statute is “silent or ambiguous with respect to the specific issue” before the Court. Chevron, 467 U.S. at 843.

Upon finding the definition of an endangered species to be ambiguous, the Court would normally be required to defer to any permissible agency construction of the statute under step two of the Chevron analysis. Id. In this case, however, there is no permissible construction to which the Court can defer. Counsel conceded at oral argument that the agency does not seek deference to its interpretation of the definition of an endangered species under step two of the Chevron test and instead relies exclusively on a plain-meaning interpretation of the ESA. As “Chevron step 2 deference is reserved for those instances when an agency recognizes that the Congress's intent is not plain from the statute's face,” Peter Pan Bus Lines, Inc., 471 F.3d at 1354, this Court is precluded from according the agency's interpretation deference under Chevron...

Therefore, having found that the agency wrongly relied on an erroneous plain-meaning reading of the definition of an endangered species, the Court must “remand for he agencyto treat the statutory lan-guage as ambiguous.”   Nat'l Cement Co., 494 F.3d at 1075; see also PDK Labs., 362 F.3d at 798 (“The law of this circuit requires in those circumstances that we withhold Chevron deference and remand to the agency so that it can fill in the gap.”). The Court therefore will remand the Listing Rule to FWS for the agency to provide a reasonable interpretation of the definition of an “endangered species,” as applied to its listing determination for the polar bear. See Humane Soc'y, 579 F.Supp.2d at 15. On remand, the agency should bring its expertise and experience to bear on the question of whether its determination that the polar bear is “threatened” throughout its range is warranted, in light of the Court's finding that the definition of an endangered species is ambiguous. “At a minimum, the agency must explain how its interpretation of the statute conforms to the text, structure and legislative history of the ESA; how its interpretation is consistent with judicial interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA's policy objectives. It must also address any legitimate concerns that its interpretation could undermine those policy objectives.” Humane Soc'y, 579 F.Supp.2d at 20-21; see also Nat'l Cement Co., 494 F.3d at 1076-77.

Because the Court does not rule on the lawfulness of the Listing Rule at this time, the Listing Rule shall remain in force during the remand period. In re Checkosky, 23 F.3d 452, 462-63 (D.C.Cir.1993).

KEITHINKING: An interesting non-decision, giving the Obama Administration yet another opportunity to decide how to navigate the continuing controversy over polar bears, global climate change, and the implementation of the Endangered Species Act.  Previously, the Obama administration affirmed the controversial Section 4(d) regulations that were originally enacted by the Bush Administration, and designed to limit the application of the take prohibition to polar bears and global climate change.  Those regulations implemented the ESA, 16 U.S.C. Sect.1533(d), a provision that authorizes the Secretary to issue “such regulations as he deems necessary and advisable to provide for the conservation” of a threatened species.  If, however, as a result of this remanded analysis, the polar bear is an endangered species, then the controversial Section 4(d) regulations would not apply.  And then...   who knows.  See also, CRS Report to Congress, and prior ESA blawg postings.

Citing harsh record evidence calling the issue a "no brainer," 9th Circuit rebukes BLM for failure to consult on grazing regulations


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WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK, 620 F.3d 1187 (9th Cir. Sept. 1, 2010)(Opinion by PAEZ, Circuit Judge).

BACKGROUND. The Bureau of Land Management (BLM) is the federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, 43 U.S.C. Sect. 315 et seq., the BLM has adopted regulations that implement its grazing management responsibilities. See 43 C.F.R. Sect. 4100 et seq...  On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM's grazing regulations (collectively the 2006 Regulations). See 71 Fed.Reg. 39,402. The stated purpose of the proposed amendments was to improve the working relationships with permittees and lessees (i.e. ranchers), to protect the health of rangelands, and to increase the administrative efficiency and effectiveness of the BLM grazing management program. See id. at 39,402, 39,403; see also Proposed Revisions to Grazing Regulations for the Public Lands, Final Impact Statement (Final EIS) at ES-5, 4-38. Among other changes, the proposed amendments decreased public involvement in public lands management, put new limitations on the BLM's enforcement powers, and increased ranchers' ownership rights to improvements and water on public lands.

THE INSTANT LAWSUIT.  Western Watersheds Project and Maughan et al. (collectively Plaintiffs) challenged the new amendments on procedural and substantive grounds. Plaintiffs argued that the BLM violated the National Environmental Policy Act (NEPA) by failing to take the required “hard look” at the environmental effects of the revised regulations; failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) in promulgating the 2006 Regulations...  Shortly after the suit was filed, Public Lands Council and the American Farm Bureau Federation (collectively Intervenors)-two organizations that represent the interests of ranchers in the western states-intervened on behalf of the BLM to defend the proposed amendments. In June 2007, the district court granted summary judgment to Plaintiffs and enjoined enforcement of the proposed regulations. W. Watersheds Project v. Kraayenbrink, 538 F.Supp.2d 1302, 1324 (D.Idaho 2008)...  The BLM and Intervenors separately appealed. In December 2008, the BLM filed a motion to dismiss the agency's appeal, which we granted, and the BLM no longer seeks to challenge the district court's judgment or defend the proposed amendments. Intervenors maintain their appeal. Plaintiffs challenge Intervenors' standing to defend the 2006 Regulations without the BLM as a party to this appeal. Indeed, the BLM filed an amicus brief in support of Plaintiffs' standing challenge. Intervenors counter that not only do they have standing but Plaintiffs lack standing and their claims are not ripe. We conclude that both parties have standing and that Plaintiffs' claims are ripe.

SUMMARY OF HOLDING.  Because we agree with the district court that the BLM violated NEPA and the ESA in adopting the 2006 amendments, we affirm the court's grant of summary judgment to Plaintiffs as to these claims. We also affirm the district court's permanent injunction enjoining the BLM regulations as set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq.  See also ESA blawg summary of prior ruling.

During the era of homesteading, Western public rangelands were often overgrazed because of policies designed to promote the settlement of the West and a lack of understanding of these arid ecosystems. In response to requests from Western ranchers, Congress passed the Taylor Grazing Act of 1934 (named after Rep. Edward Taylor of Colorado), which led to the creation of grazing districts in which grazing use was apportioned and regulated. Today, the BLM administers nearly 18,000 permits held by ranchers who graze livestock on public lands. Caption info and photo from BLM.

ENDANGERED SPECIES ACT EXCERPT: The Supreme Court has called the ESA “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions' of federal agencies.” Id. at 185, 98 S.Ct. 2279.

 The heart of the ESA is section 7(a)(2), 16 U.S.C. Sect. 1536(a)(2). Section 7(a)(2) requires a federal agency to “insure that any action authorized, funded, or carried out” by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. Sect. 1536(a)(2); see Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018 (9th Cir.2009). Section 7(b), a procedural component of the ESA, requires a federal agency to complete formal consultation with FWS if the agency determines that any action on its part “may affect” any listed species or critical habitat. 16 U.S.C. Sect. 1536(a)(2)-(c); 50 C.F.R. Sect. 402.14(a); see Cal. ex rel. Lockyer, 575 F.3d at 1018...  Here, the BLM concluded that the proposed 2006 Regulations would have no effect on endangered or threatened species or their critical habitat and, therefore, did not consult with FWS. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir.1996). The BLM explained in the Final Rule that "none of these eighteen administrative changes will have an effect on listed or proposed species or proposed or designated critical habitat.... Thus ... the BLM has fulfilled its obligations under section 7 of the ESA and has determined that the proposed revisions will have no effect on listed or proposed species or proposed or designated critical habitat." Final Rule, 71 Fed.Reg. 39402.... Plaintiffs argue that the BLM's no effect finding was arbitrary and capricious and, therefore, that the BLM's determination that consultation was not required was not in accordance with law. The minimum threshold for an agency action to trigger consultation with FWS is low, and we conclude that the regulatory amendments here-which affect 160 million acres of public land, home to hundreds of special status species-handily meet that threshold.

 To determine whether the BLM's no effect determination was arbitrary and capricious, we must decide whether the BLM “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). A federal agency “must initiate formal consultation if its proposed action ‘may affect’ listed species or critical habitat,” and “any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement.” 51 Fed.Reg. 19,949; see Defenders of Wildlife, 414 F.3d at 1072. The BLM's decision to forgo consultation with FWS must be reversed if the BLM “entirely failed to consider an important aspect of the problem” or “offered an explanation that runs counter to the evidence before the agency.” The Lands Council, 537 F.3d at 987 (internal citation and quotation marks omitted).

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. The BLM's grazing regulations affect roughly 160 million acres of public lands, home to hundreds of special status species. Indeed, because of the sheer number of special status species present on those 160 million acres, the BLM lists the names of all the special status species in the West in the Final EIS. Final EIS at Appendix 1. The list includes over 300 special status species…  Not only FWS but also the BLM's own scientists advised the agency that Section 7 consultation was necessary. One scientist ... a BLM wildlife biologist for 30 years, concluded that “we are definitely in a ‘may affect’ situation and should therefore consult.” AR at 68227. The lead representative from the BLM's Fish and Wildlife Program concluded that consultation was a “no brainer,” and a BLM fisheries biologist concluded that “veral of the regulation changes within the proposed action are likely to adversely affect listed species ..., which triggers the need to consult with FWS.” AR 68193.

In sum, there is resounding evidence from agency experts that the eighteen amendments to the BLM's grazing regulations, i.e. the 2006 Regulations, “may affect” listed species and their habitat. The requirement that a federal agency considering action consult with FWS is triggered under the ESA if that proposed action “may affect” listed species. Cal. ex rel. Lockyer, 575 F.3d at 1018. In 1995, the last time the BLM amended its grazing regulations, it consulted with FWS. W. Watersheds, 538 F.Supp.2d at 1306. Nevertheless, here the BLM concluded, without rational basis, that the 2006 Regulations would not affect listed species or their habitat and that the amendments were purely administrative. As evidenced by the expert declarations, the 2006 Regulations are not purely administrative. They alter ownership rights to water on public lands; increase the barriers to public involvement in grazing management; and substantially delay enforcement on failing allotments, in ways that will have a substantive effect on special status species.

“Although our review under the arbitrary and capricious standard is deferential, it does not condone a ‘clear error of judgment.’ ” Blue Mountains Biodiversity Project, 161 F.3d at 1216 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851). Because the BLM failed to consider relevant expert analysis or articulate a rational connection between the facts found and the choice made, we conclude that the BLM's no effect finding and resulting failure to consult were arbitrary and capricious in violation of the BLM's obligations under the ESA. See National Ass'n of Home Builders, 340 F.3d at 841.

CONCLUSION.  The BLM violated both NEPA and the ESA. We affirm the district court's grant of summary judgment in favor of Plaintiffs as to these claims, and we affirm the district court's permanent injunction enjoining the BLM's 2006 Regulations. See Wash. Toxics Coal., 413 F.3d at 1034 (“It is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.”); Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir.2002) (explaining that “effectuating Congress' clear intent in passing the ESA required issuance of an injunction” (citing TVA v. Hill, 437 U.S. 153, 193-95, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978))).

ESA in the District Courts: jumping mouse in Colorado, Fishers in California, prarie dogs in Arizona.


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CENTER FOR NATIVE ECOSYSTEMS v. SALAZAR,  711 F.Supp.2d 1267 (D. Colorado, April 14, 2010) / Civil Action No. 09-cv-01463-AP

    BACKGROUND: Environmental groups brought action under Endangered Species Act (ESA) challenging Fish and Wildlife Service's (FWS) final rule to de-list Preble's meadow jumping mouse in Wyoming, and to list it as threatened, rather than endangered, in Colorado, as well as memorandum opinion upon which final rule was based. Wyoming and farming and stock growers associations intervened. Groups moved to supplement administrative record.
    HOLDING: The District Court, Kane, J., held that: (1) complaint did not constitute improper facial challenge; (2) agencies had to include in administrative record documents considered by relevant decision makers in connection with legal opinion underlying decision; (3) biological assessments (BA) and biological opinions (BiOp) did not form portion of administrative record; but (4) supplementation of administrative record to include BAs and BiOps was warranted.
    EXCERPT: Though I do not speculate as to the Respondents' motives in failing to consider these documents, it is apparent that they are relevant to the decision to de-list the Preble's in Wyoming. The BAs and BiOps contain detailed information and analysis relating to the Preble's...  these documents were created by the agency's own experts and are relevant to the decision challenged in this case. Nevertheless, Respondents argue that... they intentionally decided not to consider the substance of the consultation documents to which Petitioners refer.
    KEITHINKING: If supplementation of the administrative record continues to be reduced to an issue of "relevance," then the norms of APA litigation -- deferential "arbitrary and capricious" review -- have been rewritten by case law.  ESA cases will depend upon a Plaintiffs ability to find other "relevant" documents, and the judiciary's willingness to declare those other documents sufficient to conclude that the agency failed to articulate a rational connection between the facts found and the decision made, supported by substantial evidence in the record. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983).


CENTER FOR BIOLOGICAL DIVERSITY v. SALAZAR, No. C 10-1501 JCS, Docket No. 60, Slip Copy, 2010 WL 4055568 (N.D.Cal., Oct. 15, 2010).

    SUMMARY: Plaintiffs bring this action challenging the findings made by the United States Fish and Wildlife Service (“the Service”) in 2004, 2005, 2006, 2007, 2008 and 2009 under the Endangered Species Act (“ESA”), 16 U.S.C. § 1533(b)(3)(iii), that the listing of the west coast population of the Fisher as an endangered species is “warranted but precluded” by other pending ESA listing proposals. See Complaint for Declaratory and Injunctive Relief (Docket No. 1) (“Complaint”), at  38-46. The Plaintiffs also challenge whether expeditious progress is being made on those pending proposals in violation of the ESA. Id. The Federal Defendants have filed a motion for partial dismissal under Rule 12(b)(1) on the ground that some of the claims in the Plaintiff's Complaint are moot and that this Court therefore lacks subject matter jurisdiction over them. A hearing was held on October 1, 2010. Having considered the papers filed and the arguments of counsel at the hearing, the Court DENIES the Defendants' motion to dismiss.
    KEITHINKING: While the warranted but precluded and candidate process has helped the Service's assert a degree of discretion over their decision-making based upon budgets and competing priorities, this lawsuit, coupled with the court's refusal to dismiss it, suggests that the scrutiny will soon increase even more.  (Particularly noteworthy was the discussion of the potential for the mootness exception to apply, because each year, when FWS makes a decision, it mooted out litigation based on the prior year.)


WILDEARTH GUARDIANS v. SALAZAR, No. CV-09-00574-PHX-FJM, 2010 WL 3895682 (D. Arizona, Sept. 30, 2010)(FREDERICK J. MARTONE, District Judge).

    BACKGROUND: In 2004, the plaintiff's predecessor petitioned the defendant to list the Gunnison's prairie dog as an en-dangered or threatened species. See id. § 1533(b)(3)(A). The Gunnison's prairie dog is a ground squirrel which inhabits Arizona, Colorado, New Mexico, and Utah.  On February 5, 2008, the defendant found that listing the Gunnison's prairie dog was warranted within the “montane portion” of its range in central and south-central Colorado and north-central New Mexico and not warranted within the remaining “prairie portion” of its range. Tr. at 18755 (finding published at 73 Fed.Reg. 6660).

    EXCERPT: Congress defined endangered and threatened species as species under the plain language of the ESA. Therefore, this “is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. The defendant cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species. Because the montane Gunnison's prairie dog cannot warrant listing in accordance with the plain language of the ESA unless there is a species called the montane Gunnison's prairie dog, we set aside the defendant's Gunnison's prairie dog finding and remand the matter to the agency for further action consistent with this Order. The plaintiff's remaining contentions are moot.

11th Cir says appropriations act narrowly repealed ESA for Everglades project: "Congress wanted the bridge built now."


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MICCOSUKEE TRIBE OF INDIANS OF FLORIDA v. UNITED STATES ARMY CORPS OF ENGINEERS, Nos. 09-14194, 09-14539, --- F.3d ----, 2010 WL 3581910 (11th Cir. Sept. 15, 2010)(Before BLACK, WILSON and MARTIN, Circuit Judges).

SUMMARY: Indian tribe brought action against United States, alleging that planned replacement of section of roadway with bridge, in order to increase flow of water into Everglades National Park, violated National Environmental Policy Act (NEPA) and Federal Advisory Committee Act (FACA). The United States District Court for the Southern District of Florida, Ungaro, J., Doc. No. 08-21747-CV-UU, 650 F.Supp.2d 1235, granted United States' motion to dismiss. Tribe appealed. Tribe brought separate action against United States, alleging that planned replacement of roadway with bridge violated Endangered Species Act (ESA). The District Court, Seitz, J., 2009 WL 2872989, Doc. No. 08-22966-CV-PAS, granted United States' motion to dismiss. Tribe appealed. Appeals were consolidated.  The Court of Appeals, Wilson, Circuit Judge, held that the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 repealed NEPA, FACA, and ESA for purposes of tribe's suits, and thus deprived federal courts of subject matter jurisdiction over suits.

The Tamiami Trail, also known as U.S. Highway 41, was the first highway to cross the Everglades. Its name derives from the cities at its ends, Tampa and Miami. Construction began during the First World War and took more than a decade to complete. When workers were not battling the swamp, they were using dynamite to break through the rock beds on the Naples side.  The Trail remains a vital road and hurricane evacuation route.  Although the Trail remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.  Aerial photo of Tamiami Trail looking south, from The South Florida Watershed Journal.

KEITHINKING: The 11th Circuit opinion contains a valuable discussion of the legal concept of Congressional repeal, methodically reviewing the case law, and explaining that Supreme Court and Eleventh Circuit cases, and Sutherland Statutes and Statutory Construction, identify three categories of repeal: explicit repeals, general repealing clauses, and implied repeals.  This case involved a general repealing clause.  In other words, through an appropriations clause, Congress, for purposes of this particular project, repealed the Endangered Species Act.

EXCERPT: In this case, we hold that the notwithstanding clause of the Omnibus Act, analyzed within its surrounding statutory language, repeals the relevant environmental laws so as to deprive the federal courts of subject matter jurisdiction over the Tribe's suits. The district court's finding that there was an “explicit exemption” from the environmental laws, while yielding the correct result, blurred the lines between the categories of repeal established in the cases. We believe it is correct and clearer to identify as such the general repealing clause that is at work here…  On March 11, 2009, Congress passed the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 (Omnibus Act). The Omnibus Act included this passage:

CONSTRUCTION (INCLUDING RESCISSION OF FUNDS).  For construction, improvements, repair or replacement of physical facilities, including a portion of the expense for the modifications authorized by section 104 of the Everglades National Park Protection and Expansion Act of 1989, $233,158,000, to remain available until expended:

Provided, That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008....

123 Stat. at 708 (emphases added). In the following discussion, we refer to the phrase “notwithstanding any other provision of law” as the notwithstanding clause. We call the phrase “immediately and without further delay” the immediacy clause...  In the Omnibus Act, Congress orders the Corps to build the bridge “immediately and without further delay.” Like the notwithstanding clause, this immediacy clause also splits the verb phrase “shall ... construct.” Our cases require us to read such simple English simply. “In the absence of a statutory definition of a term, we look to the common usage of words for their meaning.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001) (quotation omitted)...

The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress's clear intent.

9th Circuit divided (again) over judicial deference in case styled CBD v. DOI (again)


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KEITHINKING.  Although this was a NEPA case, it is worth mention here.  ESAblawg has previously discussed the decision in The Lands Council and Wild West Institute v. Ranotte McNair and U.S. Forest Service, No. 07-35000, D.C. No. CV-06-00425-EJL (9th Cir. EN BANC July 2, 2008), because its application of judicial deference to administrative agencies  is highly relevant to Endangered Species Act practicioners.  In Lands Council, the Ninth Circuit rejected some prior precedent, declaring it insufficiently deferential to the federal agencies.  However, in a subsequent case, Alliance for the Wild Rockies v. Cottrell, No. 09-35756, 9:09-cv-00107-DWM (9th Cir. July 28, 2010), the Ninth Circuit seemed to back away from Lands Council. See ESAblawg.  This week, in this recent CBD v. DOI case, the Circuit Judges of the Ninth Circuit were again divided over the meaning of Lands Council.

BACKGROUND:  CBD v DOI addressed the issue of whether a land exchange violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70; the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-87; and the Mining Law of 1872, 30 U.S.C. §§ 21-54.  If the proposed exchange does not occur, the land will continue to be owned by the United States.  The private mining company, Asarco will not be able to conduct a new mining operation on the land without first submitting a Mining Plan of Operations (“MPO”) to the Bureau of Land Management. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed. If the proposed exchange occurs, Asarco would take fee simple ownership of the exchanged land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872.  In the Final Environmental Impact Statement addressing the land exchange, the BLM assumed that the manner and extent of Asarco’s new mining operations would be the same whether or not the United States owned the land. Because of this assumption, the BLM did not compare the environmental effects of exchanging the land with the effects of not exchanging the land. Under these circumstances, we hold that the BLM has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, and that its action was therefore arbitrary and capricious.

Photo above, by Dean Lagerwell, of Asarco's Ray copper mine in Arizona (in existence since 1948) from ENS-newswire.  ENS also provided news coverage of original 9th Circuit opinion in 2009.

MAJORITY OPINION: Remarkably, more than one year after its original publication, the Ninth Circuit rewrote its opinion, and further announced that no further petitions for rehearing or rehearing en banc will be accepted.  In the majority opinion, two judges disclaim any retreat from Lands Council:  

The dissent argues that our decision in this case is inconsistent with our recent en banc decision in The Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (en banc). We disagree.  We wrote in Lands Council that “our proper role is simply to ensure that the agency made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious.’ “ Id. at 993. In Lands Council, we insisted that agencies support and explain their conclusions with evidence and reasoned analysis. Id. at 994, 998…  Our colleague writes that our opinion is “based on a distaste for the particular industrial goals at issue.” This is not true. We express no view-indeed, we have no view-on the question whether the proposed land exchange is a good or bad idea. That question is not properly before us. But our colleague has a very definite view. In his view, the land exchange is “beneficial.” In his view, the “offered lands ... are undisputably superior in almost all respects (except for mineral deposits) to the selected lands.”  In his view, our approach in not only “legally untenable.” Id. at 16201. It is also “impractical, misguided, and contrary to the best interests and welfare of the public at large.”

We confine ourselves to the legal questions before us. We continue to adhere to the standard of deference to agency action we articulated in Lands Council. But we are not compelled to defer-indeed, we are compelled not to defer-when an agency has acted arbitrarily and capriciously. In this case, we conclude that the BLM acted arbitrarily and capriciously in assuming without explanation that the MPO process is a meaningless formality that provides no environmental protection and, based on that assumption, in failing to make a meaningful comparison between the proposed land exchange and the no action alternative.

 DISSENTING OPINION.  The dissenting opinion, by Circuit Judge Tallman, also spoke directly to the issue of Lands Council, but framed the issues quite differently, rebuking the majority for a lack of judicial deference:

This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. As we have held time and again, “we are not free to ‘impose upon the agency our own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.' “ Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)). “Nor may we impose ‘procedural requirements not explicitly enumerated in the pertinent statutes.’ “ Lands Council, 537 F.3d at 993 (quoting Wilderness Soc'y v. Tyrrel, 918 F.2d 813, 818 (9th Cir.1990)) (brackets omitted). But despite insisting that the majority's decision is consistent with Lands Council, it is just the opposite. According to today's opinion, the BLM was obliged to determine the exact environmental consequences under hypothetical future MPOs for hypothetical future mines and compare them to the environmental consequences of hypothetical future mines not subject to the MPO requirement. Essentially, the BLM must demand that Asarco fully explore the selected lands, develop a detailed mining plan, and submit a proposed plan of mining operations for approval-one mimicking an MPO. The BLM is then required, under NEPA, to consider that quasi-MPO as if it were in fact a filed MPO under the Mining Law. Stated in real terms, the approval process of a proposed land exchange under FLPMA henceforth incorporates, by way of NEPA, the Mining Law's governance of mining activities on public lands. But, of course, the majority will not say that if Asarco does all this, it will have complied with the Mining Law.

I find no legal basis for this newly-minted, quasi-MPO requirement-“a creature of judicial cloth, not legislative cloth, ... not mandated by any of the statutory or regulatory provisions upon which he majorityrelied.”   Weinberger, 454 U .S. at 141. “Lands Council teaches that our proper role is simply to ensure that the agency, in its expertise, made no clear error of judgment rendering its action arbitrary and capricious.” Nw. Coal. for Alternatives to Pesticides v. EPA, 544 F.3d 1043, 1060 (9th Cir.2008) (Ikuta, J., concurring in part, dissenting in part). Just as “we defer to the Forest Service as to what evidence is, or is not, necessary to support wildlife viability analyses,” Lands Council, 537 F.3d at 992, we must defer to the BLM as to what evidence is, or is not, necessary to support a foreseeable environmental impact assessment of anticipated and continuing mining activities in order to make an informed “public interest” determination. See also Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S.Ct. 2458, 2473 (2009) (noting deference given to agencies' interpretations of own regulatory scheme). My colleagues clearly disagree. Who needs Chevron deference? Why adhere to Lands Council? Judges will now administer the duties Congress has entrusted to the administrative agency.

 In sum, the majority's creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir.2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. As was the case in Lands Council, the agency “is at liberty, of course, to onduct further analysis if it deems it appropriate or necessary, but it is not required to do so.” Id. at 991-92. It is certainly not for us as Article III judges to feign superior expertise in such specialized areas and to micro-manage agencies in executing their congressionally delegated administrative functions.

Feds admit rule in error, but Court denies request to vacate the rule


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CARPENTERS INDUSTRIAL COUNCIL v. SALAZAR, Civil Action No. 08-1409 (EGS), --- F.Supp.2d ----, 2010 WL 3447243 (D.D.C.,  Sept. 1, 2010)(EMMET G. SULLIVAN, District Judge)

SUMMARY: This case arises from a critical habitat designation and recovery plan that defendant U.S. Fish and Wildlife Service (the “FWS”) promulgated with respect to the threatened northern spotted owl in 2008. Plaintiffs Carpenters Industrial Council et. al. (collectively, the “CIC plaintiffs”) contend that the FWS's final rule on the Revised Designation of Critical Habitat for the Northern Spotted Owl, 73 Fed.Reg. 47326 (the “2008 Critical Habitat Designation”), was arbitrary and capricious and rendered in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Plaintiff-intervenors Seattle Audubon Society et. al. challenge the federal defendants' 2008 Critical Habitat Designation as well as the 2008 Recovery Plan for the Northern Spotted Owl (the “2008 Recovery Plan”) pursuant to the ESA and the APA.

BACKGROUND: Pending before the Court is the federal defendants' motion for voluntary remand and vacatur. In their motion, the federal defendants confess legal error as to the 2008 Critical Habitat Designation and the 2008 Recovery Plan, and ask the Court to: (i) remand and vacate the 2008 Critical Habitat Designation; (ii) remand the 2008 Recovery Plan; and (iii) order the FWS, after issuance of a revised recovery plan, to evaluate whether revision of the 1992 Critical Habitat Designation is appropriate, and if so, to complete rulemaking for a new critical habitat designation after issuance of a revised recovery plan.

In 1990, the Service estimated spotted owl habitat had declined 60 to 88 percent since the early 1800s.  This loss, which was concentrated mostly at lower elevations and in the Coast Ranges, was attributed primarily to timber harvest and land-conversion activities, Image from FWS.

EXCERPT RE: REMAND: The federal defendants and the Seattle Audubon plaintiff-intervenors argue that voluntary remand is appropriate in light of the IG's Report, which found that the decisional process for the recovery plan for the northern spotted owl was “potentially jeopardized” by the actions of Deputy Assistant Secretary MacDonald. The federal defendants explain that “reconsideration here would allow the Service to remove any question of potential taint from Ms. MacDonald's interference and ensure that the owl's survival and recovery are supported by scientifically valid measures.” Fed. Defs.' Reply Br. at 9.   Therefore, in view of the federal defendants' later-acquired information regarding the actions of Deputy Assistant Secretary MacDonald, which raise “substantial and legitimate concerns” about the rule-making process for the northern spotted owl, the Court concludes that the FWS's request for voluntary remand is well justified. See also, e.g., Alliance for the Wild Rockies, Inc., 2009 WL 2015407, at *2 (granting the FWS's request for the voluntary remand of a critical habitat designation in light of the IG's Report on Deputy Assistant Secretary MacDonald); Coal. of Arizona/New Mexico Counties, No. 07-876, slip op. at 5 (same). Voluntary remand will also preserve this Court's scarce judicial resources by providing the federal defendants' the opportunity to “cure their own mistakes.” Ethyl Corp., 989 F.2d at 524; see, e.g., Nat'l Res. Def. Council, 275 F.Supp.2d at 1141 (“Voluntary remand also promotes judicial economy by allowing the relevant agency to reconsider and rectify an erroneous decision without further expenditure of judicial resources.”);   Sierra Club, 560 F.Supp.2d at 24-25 (“Remand in this case will serve the interest of allowing the overnmentto cure its own potential mistake rather than needlessly wasting the Court's and the parties' resources.”). Accordingly, the federal defendants' request for voluntary remand is hereby GRANTED consistent with the terms set forth herein.

EXCERPT RE: VACATUR: federal defendants and the Seattle Audubon plaintiff-intervenors argue that the Court has the authority to vacate the 2008 Critical Habitat Designation without making a determination of the merits as a result of the federal defendants' confession of legal error. Although two courts have agreed with this position and exercised their equitable power to summarily vacate critical habitat designations, see Coal. of Arizona/New Mexico Counties for Stable Econ. Growth v. Salazar, No. 07-876, slip op. at 5 (D.N.M. May 4, 2009); Natural Res. Def. Council, 275 F.Supp.2d at 1143, this Court is not persuaded that it has the authority to order vacatur of the 2008 Critical Habitat Designation without an independent determination that the FWS's action was not in accordance with the law. See generally 5 U.S.C. § 706(2) (directing a reviewing court to hold unlawful and set aside agency action, findings, and conclusions that it finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law). To summarily grant the federal defendants' request for vacatur “would allow the Federal defendants to do what they cannot do under the APA, repeal a rule without public notice and comment, without judicial consideration of the merits.” Nat'l Parks Conservation Ass'n, 2009 WL 2497393, at *3. The Court, therefore, concludes that it lacks the authority to grant the federal defendants' request for vacatur without a determination of the merits.

EXCERPT RE: TIMING. Finally, the federal defendants ask the Court to order the FWS, after issuance of the revised recovery plan, to evaluate whether revision of the 1992 Critical Habitat Designation is appropriate, and if so, to complete rulemaking for a new critical habitat designation with 24 months of the issuance of the recovery plan. The Court finds this request-which was premised upon vacatur of the 2008 Critical Habitat Designation-moot in light of the Court's ruling on the issue of vacatur.However, in view of the federal defendants' confession of legal error as to the 2008 Critical Habitat Designation, the Court is sensitive to the need for new rulemaking for the owl to be undertaken as expeditiously as possible. Accordingly, by no later than September 30, 2010, the parties are directed to submit a joint proposed timetable to the Court addressing the length of time within which rulemaking for a new critical habitat designation for the northern spotted owl shall be completed; in the event that the parties are unable to reach a joint recommendation, each party shall submit an individual recommendation by that time. The Court will withhold issuance of its Order remanding the 2008 Critical Habitat Designation to the FWS pending resolution of this issue .

KEITHINKING: Ah, the machinations of justice.  The Federal Government admits that its rule was in error, and asks for its repeal, but the court denies the request, and leaves the rule intact, so now all the parties can file briefs seeking a formal determination that the rule should be revoked, just like they asked.  Anyone else smell an attorney's fees issue in the wind?  Sadly, the 2008 Recovery Plan was considered an important step in what has been a multi-decade effort to recover the spotted owl. See FWS.  


In missed deadline litigation, environmental interests advocating action have standing, but property owners seeking to avoid a listing do not.


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This Document Relates to Center for Biological Diversity v. Salazar, No. 10-CV-00230 (EGS). Misc. No. 10-377 (EGS). MDL No. 2165.
--- F.Supp.2d ----, 2010 WL 3386392 (D.D.C. Aug. 27, 2010)(EMMET G. SULLIVAN, District Judge).

SUMMARY: Pending before the Court is a motion to intervene as of right or, in the alternative, for permissive intervention filed by Tejon Ranch Company, Tejon Ranchcorp, and Tejon Mountain Village, LLC (collectively “TRC”). TRC seeks to intervene in only one of the consolidated cases in this matter: Center for Biological Diversity v. Salazar, No. 10-230, which arises in part from a petition to list the Tehachapi slender salamander under the Endangered Species Act (“ESA”). TRC's motion is opposed by Plaintiff Center for Biological Diversity (“CBD”) and by Plaintiff Wildearth Guardians (“Wildearth”). The federal defendants take no position on TRC's motion. Upon consideration of TRC's motion, the responses and reply thereto, the relevant law, and for the reasons stated herein, TRC's motion to intervene is DENIED.

The Tehachapi slender salamander is a small, lungless amphibian believed to exist in only two populations in central California-one in Caliente Canyon in the southern Sierras, and the other in the Tehachapi Mountains.  Image from

BACKGROUND: On February 28, 2006, the FWS received a citizen petition to list the Tehachapi slender salamander as an endangered or threatened species. See 90-Day Finding on a Petition to List the Tehachapi Slender Salamander (Batrachoseps stebbins) as Threatened or Endangered, 74 Fed.Reg. 18,336 (Apr. 22, 2009) (“90-Day Finding”).  … A portion of the Tehachapi population is found on Tejon Ranch, which is owned by Movant-Intervenor TRC...   On February 17, 2010, Plaintiff CBD filed a complaint in the United States District Court for the Eastern District of California challenging the FWS's failure to act on the Tehachapi slender salamander and listing petitions for six additional species. Ctr. for Biological Diversity v. Salazar, No. 10-401 (E.D. Cal. filed Feb. 17, 2010). TRC filed a motion seeking leave to intervene in that case on April 2, 2010. ...  Before TRC's motion could be resolved, CBD voluntarily dismissed the case and, on April 26, 2010, amended its complaint in a related action pending before this Court to add claims regarding the Tehachapi slender salamander. Specifically, Plaintiff CBD claims that the FWS failed to meet a statutory 12-month deadline to determine whether or not listing of this species is warranted. Plaintiff requests relief in the form of (1) an order declaring that the FWS failed to comply with its statutorily-mandated deadline and (2) an order requiring the Secretary to make the required finding by a date certain. First Am. Compl.  2.

LEGAL TEST FOR INTERVENTION:  Intervention as a matter of right is governed by Rule 24(a) of the Federal Rules of Civil Procedure, which states in relevant part: "On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." ...  In the D.C. Circuit an applicant must meet four criteria to be granted intervention as of right: (1) timeliness; (2) a protectable interest relating to the property or transaction that is the subject of the action; (3) impairment of the ability to protect that interest; and (4) inadequate representation of that interest by other parties. Fund for Animals v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003). In addition to satisfying these criteria, a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution. Id. at 732. Because a prospective intervenor's Article III standing presents a question going to this Court's jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002), the Court must address standing before considering the four-part test for evaluating intervention as of right. Fund for Animals, 322 F.3d at 732...  All litigants must demonstrate that they are “entitled to have the court decide the merits of the dispute” in order to properly invoke the jurisdiction of a federal court. Warth v. Sedlin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). At a minimum, an intervenor, like any party, must show (1) an injury-in-fact that is (a) concrete and particularized and (b) actual and imminent, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

EXCERPT RE: INJURY:  In attempting to demonstrate standing, TRC identifies two potential injuries. First, because Tehachapi slender salamanders are found on TRC property, TRC claims that the outcome of the FWS listing determination for this species may precipitate restrictions on the use of its land and business operations. TRC Mem. at 14, 16. As TRC notes, it is axiomatic that property owners have an interest in a suit that affects their property. Foster v. Gueory, 655 F.2d 1319, 1324 (D.C.Cir.1981). Second, TRC asserts that it could suffer economic losses and additional delays in developing its property if the FWS is forced to render its listing decision on the Tehachapi slender salamander before TRC's proposed conservation plan has been finalized and approved...  With regard to the purported injury to TRC's property interests, the Court finds that TRC has failed to satisfy the causation and redressability prongs of the Article III standing test. TRC's alleged injury is based entirely on the potential substantive outcome of the FWS's listing determination for the Tehachapi slender salamander, which is not before this Court. The case before this Court deals only with the FWS's alleged failure to complete a preliminary step in the listing process within the time period required by law. Because this Court will issue no order directly impacting TRC's use of its property, TRC's claims of injury from restrictions on its property use and business operations bear no relation to the present action.

EXCERPT RE: PERMISSIVE INTERVENTION:  After careful consideration of the parties' positions, the Court finds that allowing TRC to intervene could lead to undue delay and would potentially prejudice the adjudication of the original parties' rights. This matter is currently stayed while the parties pursue settlement negotiations. See Minute Order dated August 5, 2010. Recognizing that TRC's stated purpose in seeking to intervene is, in part, to protect its interests by delaying a 12-month finding on the Tehachapi slender salamander, the Court is unwilling to put TRC in a position to draw out ongoing settlement negotiations and to further delay the resolution of this case.
KEITHINKING: Bottom line... According to this case, the Center for Biological Diversity is given standing to sue the Federal Government by alleging that the government must decide to list (or not list) a particular species as threatened or endangered, but a property owner whose land is habitat for that same species has no right to intervene in the proceeding, and can only file suit when the Federal Government actually decides to list the species.  This differentiation between the standing of environmental interests and property interests is reminiscent of the dispute in Bennett v. Spear, 520 U.S. 154 (1997), however, this dispute involves a different section of the ESA, and a citizen suit, as opposed to an APA-based suit.

9th Circuit upholds NOAA Fisheries distinct treatment of Steelhead and Rainbow trout


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Modesto Irrigation District v. Gutierrez, No. 09-15214, 2010 WL 3274499 (9th Cir. Aug. 20, 2010)(Judges Mary M. Schroeder, Consuelo M. Callahan, and Barbara M. Lynn)

This Endangered Species Act (“ESA”) case is a challenge to the decision of the National Marine Fisheries Service (“NMFS”) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.  Plaintiffs are irrigation districts in California's Central Valley, (including  Modesto Irrigation District (MID)) whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (“APA”) by failing adequately to explain its decision to adopt a new policy for classifying the fish. We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc.,129 S.Ct. 1800 (2009). We therefore affirm.

This case turned upon the distinctions between the steelhead (above from and rainbow trout, (below from types of Pacific salmon that comprise the Oncorhyncus mykiss (“O.mykiss ”) species as scientifically defined. The fish are born in fresh water, but the steelhead migrate to the ocean anywhere from hours to years after their birth. To transition from fresh water to salt water, steelhead undergo a “smolt” stage, and then after one to five years in the sea, return to the original stream to spawn. Because of their migration pattern, steelhead are known as the anadromous form of O. mykiss. The rainbow trout, on the other hand, remain in fresh wa-ter their entire lives and are commonly known as the resident form of the O. mykiss species.  While the two fish grow to differing sizes as adults and have different predators and prey, they do inter-breed to some extent, and the offspring can take on the form of either. An excess of steelhead can regen-erate the population of rainbow trout, but the reverse does not seem to be the case.

BACKGROUND: Previously,NOAA Fisheries had sought to apply its evolutionary significant unit (“ESU”) policies to these species.  See, e.g. Proposed Listing Determinations for 27 ESUs of West Coast Salmonids, 69 Fed.Reg. 33,102, 33,115 (June 14, 2004); Final Listing Determinations for 10 Distinct Population Segments of West Coast Steelhead, 71 Fed.Reg. 834, 836 (Jan. 5, 2006).  Under these policies, NOAA determined that an ESU was the functional equivalent of a "Distinct Population Segment."  Under the ESU Policy, a salmon stock had to satisfy two main criteria before NMFS could place the stock in a distinct ESU: (1) It must be substantially reproductively isolated from other nonspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species.  On November 4, 2005, NMFS proposed to abandon the ESU Policy with respect to O. mykiss. NMFS proposed using the DPS Policy instead to classify O. mykiss so the steelhead and rainbow trout could be treated separately under the ESA. See 70 Fed.Reg. at 67,131. In support of the change in policy, NMFS stated:

"It is appropriate that we consider departing from our past practice of applying the ESU Policy to O. mykiss stocks, and instead apply the DPS Policy in determining “species” of O. mykiss for listing consideration. Such an approach would also be consistent with use of the DPS Policy by the agencies in defining DPSs of Atlantic salmon ... The primary difference in the application of the two policies is that the ESU Policy relies on “substantial reproductive isolation” as the primary factor in delineating a group of organisms, while the DPS Policy relies on “marked separation” to delineate the group. Within a discrete group of O. mykiss populations, the resident and anadromous life forms of O. mykiss remain “markedly separated” as a consequence of physical, physiological, ecological, and behavioral factors. Despite the apparent lack of reproductive isolation between the two forms within a given population or group of populations, under the DPS Policy anadromous and resident O. mykiss may not warrant delineation as part of the same DPS."

EXCERPT: NMFS changed its policy when it applied the DPS Policy to O. mykiss after it had previously applied the ESU Policy, and it is undisputed that such a policy change requires an explanation. See F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810-11 (2009). MID questions whether NMFS provided sufficient explanation for the change. We hold that the record reflects that NMFS engaged in a careful decision-making process and provided a sufficient explanation for its decision to apply the DPS Policy...  This record thus contains ample support for the reasons NMFS stated when it decided to use the DPS Policy. The final rule stated that the ESU Policy was no longer appropriate for classifying O. mykiss because it is “a type of salmonid with characteristics not typically exhibited by Pacific salmon.” 71 Fed.Reg. at 834. The final rule may not explicitly describe why and how O. mykiss differ from other species of Pacific salmon, but the rule does provide an extensive discussion of the similarities and differences between steelhead and rainbow trout that are not shared by other Pacific salmon. It “may reasonably be discerned,” then, that NMFS determined that O. mykiss is distinct from other types of Pacific salmon. See Fox, 129 S.Ct. at 1811.  In light of the evolving understanding of the differences between the fish, the desire for a flexible policy, and the depth of consideration that NMFS has given the issue over close to two decades, we conclude that the agency was not arbitrary or capricious in changing its policy in order to protect the steelhead. We therefore affirm the district court's holding that the explanation for the policy change was sufficient. Its ruling was fully consistent with the Supreme Court's subsequent decision in Fox.

KEITHINKING: The opinion ended on a discomforting pragmatic point, reminding us about the tensions between good law and bad facts: "We are aware of the practical difficulties the classification decision creates for management of the Irrigation and Water Districts. The two types of fish look and behave the same during their early years in the rivers and streams in the area, and the practical effect of our decision is that plaintiffs may have to protect both the steelhead and rainbow trout, even though only the steelhead is threatened. The flexibility to make policy changes in response to such concerns, however, remains in the agencies administering the provisions of the ESA and not with the courts."

Interpreting plant provisions of the ESA, 9th Circuit shows restraint, encourages FWS to adopt rules


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Northern California River Watch v, Wilcox, No. 08-15780,(August 25, 2010)(Dorothy W. Nelson, William A. Fletcher, and Richard A. Paez, Circuit Judges).

   Robert Evans and Northern California River Watch (“River Watch”) appeal the district court’s grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively “Defendants”). River Watch contends that Defendants violated the Endangered Species Act (“ESA”), codified at 16 U.S.C. § 1531 et seq. Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction. See 16 U.S.C. § 1538(a)(2)(B).
   The district court granted Defendants’ motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were “areas under Federal jurisdiction.” On appeal, we consider the meaning of the term “areas under Federal jurisdiction” as used in ESA § 9. River Watch argues that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as “waters of the United States” by the Army Corps of Engineers. The United States, representing the interests of the Department of the Interior’s Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that we must apply the deference principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an “area under Federal jurisdiction.”
   Although we agree that the term “areas under Federal jurisdiction” is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (“FWS”), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that “areas under Federal jurisdiction” does not include the privately-owned land at issue here. We therefore agree with the district court’s ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants.

   William and Frank Schellinger are brothers and business partners who seek to develop 21 acres of private property in Sebastopol, California. These 21 acres (“the Site”) are comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales.  After learning of the discovery of Sebastopol meadowfoam, California Department of Fish & Game (CDFG) Habitat Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site’s development Scott Schellinger, visited the Site in order to further investigate the presence of the plants. Wilcox, 547 F. Supp. 2d at 1073. Wilcox confirmed that the vegetation was the endangered plant species Sebastopol meadowfoam. (Photo below from USDA Natural Resources Conservation Service).  In examining the plants to determine whether they were rooted in the soil and thus naturally occurring, Wilcox lifted the plants, along with their substrates, out of the wetland. Because the CDFG employees suspected that the plants were not naturally occurring, Cooley later returned to the Site to gather evidence. Wilcox, 547 F. Supp. 2d at 1073. Upon his return visit, he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office, where he placed most of the plants in an evidence locker. Id. at 1073, 1079.

Limnanthes vinculans, or Sebastopol meadowfoam, is an endangered species of meadowfoam found only in the Laguna de Santa Rosa in Sonoma County, California, USA and an area slightly to the south in the Americano Creek and Washoe Creek watersheds. Like the other meadowfoams, it is a small annual herb, with multiple stems growing up to 30 centimeters (12 inches) in height; white flowers occur singly at the ends of stems.  This species is only known from approximately 30 locations in the laguna de Santa Rosa and southern Cotati Valley of Sonoma County, in these areas it occurs in wet meadows and around vernal pools at elevations of under 300 meters. Photo credit: Mark W. Skinner @ USDA-NRCS PLANTS Database

   The prohibitions at issue here are found at § 9(a)(2)(B), which states that it is unlawful to: remove and reduce to possession any endangered species of plants from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. Id. § 1538(a)(2)(B) (emphasis added). The meaning of “areas under Federal jurisdiction” is not immediately clear, nor is it explicitly defined in the ESA. “Jurisdiction, it has been observed, is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)
   Therefore, we conclude that the meaning of the statutory text “areas under Federal jurisdiction” is not plainly clear from the text of the ESA, nor does the ESA’s legislative  history elucidate Congress’ intent in using the term. We agree with the district court’s conclusion that “Congress did not explain what it meant by ‘areas under Federal jurisdiction,’ ” and we proceed to examine whether the FWS’s interpretations offered in the United States’ amicus brief satisfy the requirements set forth in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

   The United States cites three rules, which were promulgated by the FWS using formal rule-making authority, as evidence of the FWS’s interpretation of the phrase “areas under Federal jurisdiction.” The three rules designate certain plant species as endangered or threatened. None of these rules, however, interprets “areas under Federal jurisdiction;” instead, the rules use the phrase in passing and somewhat interchangeably with the term “federal lands.” Thus, the three rules do not provide an agency interpretation to which we could defer under Chevron...
   The United States also urges us to give Chevron deference to an “interpretation” of “areas under Federal jurisdiction” found in the Habitat Conservation Planning And Incidental Take Permit Processing Handbook, an FWS guidance manual for conducting the  Incidental take permit program under ESA § 10. Habitat Conservation Planning And Incidental Take Permit Processing Handbook (1996).  The Handbook states that “the ESA does not prohibit the incidental take of federally listed plants on private lands unless the take or the action resulting in the take is a violation of state law (which in most cases eliminates the need for an incidental take permit for plants).” Id. at 3-17. Although issued after public notice and comment, see 61 Fed. Reg. 63,854 (Dec. 2, 1996); 59 Fed. Reg. 65,782 (Dec. 21, 1994), the Handbook is not deserving of Chevron deference. First, “interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference.” ...  Finally, the 300+ page Handbook does not discuss “areas under Federal jurisdiction” other than in one paragraph where it restates the statute. In sum, the focus of the Handbook is the § 10 incidental take permit program, and any interpretation one might glean from the Handbook is attenuated at best.
   we hold that contrary to the United States’ arguments, the FWS has not yet interpreted “areas under Federal jurisdiction.”

   Without any agency interpretation of “areas under Federal jurisdiction” to which we must defer, we proceed to interpret the term. We agree with the district court that River Watch’s proposed construction of § 9(a)(2)(B) is not tenable. The potential for overbreadth posed by interpreting “areas under Federal jurisdiction” as including all “waters of the United States” is simply too large...
  ...We hold that River Watch has not established that the plain language of the ESA mandates that “waters of the United States” are “areas under Federal jurisdiction.” We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret “areas under Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its  regulations. Although our ruling will constitute “binding law,” we recognize that under Brand X Internet Servs., 545 U.S. 967, 986 (2005)., we are not the “authoritative interpreter” of “areas under Federal jurisdiction.” See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

KEITHINKING: Seems as though Chevron deference is becoming increasingly less deferential...  This case also involved a sinister subplot, as revealed in footnote 6, which states: "In the district court, the Schellingers alleged that the plants were illegally
transplanted to the Site in an effort to delay their development plans. Although this issue is disputed by the parties, it is irrelevant to our review."

Federal Judge, reversing FWS rule, says Northern Rocky Mountain wolves are one population, so Wyoming cannot be managed differently from Idaho and Montana


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Defenders of Wildlife v. Salazar, CV 09-77-M-DWM, CV 09-82-M-DWM (consolidated)(D. Montana, Aug. 10, 2010)(Judge Donald Molloy)

RULING: After reviewing the Final Rule, the administrative record, the arguments submitted by the parties, the statutes and relevant case law, the Court finds:
-- The Endangered Species Act does not allow the U.S. Fish & Wildlife Service to list only part of a "species" as endangered, or to protect a listed distinct population segment only in part as the Final Rule here does; and
-- The legislative history of the Endangered Species Act does not support the Service's new interpretation of the phrase "significant portion of its range." To the contrary it supports the historical view that the Service has always held, the Endangered Species Act does not allow a distinct population segment to be subdivided.
Accordingly, the rule delisting the gray wolf must be set aside because, though it may be a pragmatic solution to a difficult biological issue, it is not a legal one.

EXCERPT: The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms, and Wyoming's choices about meaningful participation in a collective delisting agreement like that engaged in by Montana and Idaho. Even if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA. The northern Rocky Mountain DPS must be listed, or delisted, as a distinct population and protected accordingly. The issues of the adequacy of the regulatory mechanisms of Montana and Idaho, population size, connectivity and genetic exchange are subsumed by the determination that the Final Rule is contrary to the law and as such are not decided here.

The gray wolf is the largest wild member of the dog family. 74 Fed. Reg. 15,123,15,123 (April 2, 2009). Wolves generally live in packs of 2 to 12 animals and have strong social bonds. Id. Wolf packs consist of a breeding pair (the alpha male and alpha female), their offspring from previous years, and an occasional unrelated wolf. Id. Generally, only the alpha male and alpha female breed. Id. Litters are born in April and average around 5 pups. Id. Normally, 4 pups survive until winter. Id. Wolves can live up to 13 years, but in the northern Rocky Mountains 4 years is the average lifespan. Id. Packs typically occupy territories from 200 to 500 square miles, which they defend against other wolves and wolf packs. Id.  Wolf pack image above from Howling for Justice (Blogging for the Gray Wolf).

KEITHINKING: This month marked yet another turning point in the wolf litigation -- but then again, there have been ALOT of turning points.  As Lauren Himiak noted in her National & State Parks Blog "wolves were on the list in 1974, off the list in 2008, on the list in late 2008, off the list 2009, and back on the list now."  This time, the wolf is back on the list thanks to District Court Judge Donald Molloy and his ruling that the entire Rocky Mountain wolf population must be managed together.  In other words, Idaho and Montana could not have its own policies allowing wolf hunts while the listed wolves in Wyoming were regulated differently. See coverage in the Missoulian.  The ruling might seem inconsistent with the usual notion that Congress bestowed flexibility upon federal wildlife managers for "experimental populations" pursuant to Section 10(j) of the Endangered Species Act (ESA) -- but as the opinion explains, the problem is that Congress did not, in fact, provide that much flexibility.  Sure, critical habitat and consultation requirements might be different pursuant to ESA Section 10(j), but a "species" is still a species. (Or, more precisely, a Distinct Population Segment of a species cannot be further subdivided by state boundaries.)  Idaho Fish & Game declared the ruling a mess, see KLEW-TV, hunters called for legislation, see and Sen. Max Baucus vowed legislation.  Sadly, the decision scuttled plans for the settlement talks -- the one path that might actually produce a solution.  See Salt Lake Tribune.   In fact, what the Rocky Mountain wolves really need is a reasonable settlement, in turn codified through legislation, to end the litigation once and for all.  As Judge Molloy held, "Even if the (FWS) solution is pragmatic, or even practical, it is at heart a political solution that does not comply with the ESA."  That sentence sums up the problem.  The law is intolerant of politics (and all too often, politics are intolerant of the law.)  In a editorial published in the Casper Star-Tribune, the Greater Yellowstone Coalition proposed a long-term solution: (1) determine a baseline population figure used to set management policies (they propose using the exist population size), (2) develop policies to protect ranchers, and (3) allow fair-chase hunting for population control. The concept sounds workable, but #1 might prove to be the tricky one.  Reasonable minds, and scientists, will disagree about the "right" population figure.  Inevitably, even if a broad consensus is reached, a handful of persistent environmentalists might want more wolves than the baseline number, and an equally determined group of strong-willed ranchers and hunters will want fewer.  High low, high low, it's back to court we'll go...?

P.S.  In the colorful first page of the opinion, the Court wrote: "The fight about wolves, steeped in stentorian agitprop, ignores the two different mandates of the act: the risk assessments, whether listing or delisting, are designed to prevent extinction of a species, and secondly {whether} they are intended to promote recovery of that species."  FYI: stentorian agitprop = extremely loud propaganda.

Interested in more from the opinion? ...  

Federal Judge in Sacramento Delta says California's striped bass management, absent population-level effects on a listed species, does not violate Section 9 take prohibition


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Coalition for a Sustainable Delta v. McCamman, No. 1:08-cv-00397 OWW GSA, --- F.Supp.2d ----, 2010 WL 2867107  (E.D. Cal. July 21, 2010)(District Judge Oliver W. Wanger)

THE LAWSUIT: This case concerns enforcement by the California Department of Fish and Game (“CDFG”), through its Director John McCamman, (“State Defendant”) of state sportfishing regulations designed to protect striped bass population in the Sacramento-San Joaquin Delta. Plaintiffs, the Coalition For a Sustainable Delta, et al., (“Plaintiffs” or “the Coalition”), allege that State Defendants' enforcement of these regulations violates section 9 of the Endangered Species Act (“ESA” or “Section 9”), because striped bass prey on and take various ESA-listed species.

BACKGROUND:  Resolution of many of the disputes in these motions turns on whether liability under ESA § 9 is attributable to State Defendant's actions. It is undisputed that the Central Valley spring-run Chinook salmon is listed as a threatened species, 64 Fed.Reg. 50,394-50,415; 70 Fed.Reg. 37,160-37,204, and that the Sacramento River winter-run Chinook salmon is listed as an endangered species, 59 Fed.Reg. 440.

ESA § 9 prohibits the “take” of any species listed as endangered. 16 U.S.C. § 1538(a)(1)(B). The Secretary of the Interior, through regulation, has applied the “take” prohibition to species that are listed as threatened. 50 C.F.R. § 17.31(a). “Take” is defined to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).  “Harm” is defined by regulation to include: “an act which actually kills or injures wildlife. Such act may include habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3. Under this regulation, a person can “harm” either directly, by actually killing or injuring a protected animal, or by modifying the species' habitat to the point of significantly impairing the species' essential behavioral patterns where that impairment results in the actual death or injury of endangered animals.

“Direct” harm involves the direct application of force to a member of a protected species, resulting in actual death of or injury to the animal. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694 (1995)…  Habitat modification may also constitute harm “where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3 (emphasis added); see also Sweet Home, 515 U.S. at 697 (upholding 50 C.F.R. § 17.3 and holding that the ESA's definition of harm “naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species”)…

EXCERPT: The balance of the authority suggests that a population level effect is necessary for harm resulting from habitat modification to be considered a take.  Arguendo, imposing such a requirement in all cases of alleged harm by habitat modification might cause a species' habitat, and its continued survival and/or chances of recovery, to be destroyed in a piecemeal fashion. This is not a case in which such piecemeal destruction is a threat. This case involves the entire striped bass population in the Delta and its alleged predatory impact on the entire populations of listed winter and spring-run Chinook salmon...  Finding that an actionable take occurred whenever an action that disturbs the balance of an ecosystem poses a reasonably certain threat of imminent harm to a single member of the listed species would effectively eviscerate Sweet Home's requirements of proximate causation and foreseeability, imposed upon cases concerning harm from habitat modification. See 515 U.S. 700 n. 13 (“The regulation defining harm merely implements the statute, and it is therefore subject to the statute's ‘knowingly violates' language and ordinary requirements of proximate causation and foreseeability.”). This is particularly the case where the intervening actor is not a human, and therefore not within the complete control of the human actors involved, including the Court...  Plaintiffs' motion for summary judgment is also DENIED as to Section 9 liability.

The Coalition for a Sustainable Delta alleged that the striped bass sport-fishing regulations artificially maintain and enhance the size of the striped bass population in the Delta, increasing striped bass predation on Listed Salmon -- and especially the smolts, as pictured above. (Photo from Bureau of Land Management).  Plaintiffs further argued that reduction in striped bass abundance would reduce total juvenile salmon predation and mortality, with a corresponding increase in juvenile salmon survival.  See related article in

D.D.C. denies preliminary injunction in tax credit case, but 9th Circuit raises serious questions


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In a recent U.S. Supreme Court decision, the court discussed the test for issuance of a preliminary injunction in cases involving environmental harms, and adhered to the traditional test.  "This court may issue interim injunctive relief only when the movant demonstrates “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) citing Munaf v. Geren, 128 S.Ct. 2207, 2218-19 (2008).  Despite its relative clarity, the appellate courts still wrestle with the application of this test.  The two cases below, decided within two days of each other, remind us why scholars believe the Supreme Court may soon be revisiting the issue...


Appalachian Voices v, Chu, Civil Action No. 08-0380 (RMU), --- F.Supp.2d ----, 2010 WL 2902767 (D.D.C., July 26, 2010).

BACKGROUND: the plaintiffs, nonprofit organizations devoted to the environmental preservation of the Appalachian Mountains region, brought suit against the defendants, the Department of Treasury and the Department of Energy, alleging that the defendants erroneously failed to consider the environmental consequences of a program that provides tax credits to companies that use “clean coal” technology. The plaintiffs have now moved for a preliminary injunction to “immediately suspend allocation of the ... tax credit” ...  The plaintiffs claim that the defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq ., and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., by failing to evaluate the environmental impacts of the tax credit program and by failing to consult with the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service before allocating the tax credits.  

EXCERPT: the court need only address the irreparable injury prong of the injunctive relief standard to rule on the plaintiffs' motion. As the plaintiffs themselves point out, an injunction suspending the allocation of the tax credit “will not prevent Duke Energy from moving forward with the Cliffside project.” Pls.' Mot. at 25. Indeed, the plaintiffs do not assert that the allocation of the tax credit will directly cause them irreparable harm.; rather, they predict that they will be harmed when the Cliffside plant becomes operational, which they concede is not expected to occur until the summer of 2012, see Pls.' Reply at 3. Because the plaintiffs' asserted injury is not imminent, and because the court will be able to render a decision on the merits of the plaintiffs' claims before the anticipated injury becomes imminent, the plaintiffs are not entitled to injunctive relief. Wis. Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C.Cir.1985)(holding that “the party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm”)

KEITHINKING: Based on a 9th Circuit case issued only two days later, the ruling in Appalachian Voices looks like an anomalous byproduct of the unique facts, because the planned operation of the power plant in summer 2012, not the IRS tax credit, injured the plaintiffs.  In contrast, in the more traditional cases involving direct impacts to the habitat on which listed species depend, an injunction remains easier to obtain.  As suggested in Alliance for the Wild Rockies v. Cottrell, in timber harvest cases, a plaintiff quickly proves irreparable injury simply by showing impacts to multiple acres.  (In Endangered Species Act cases, plaintiffs could make similar arguments simply by counting the multiple acres of affected species habitat.)  Then, with the irreparable harm proven, once the "sliding scale" analysis is applied, the likelihood of success on the merits threshold becomes fairly low.


Alliance for the Wild Rockies v. Cottrell, No. 09-35756, 9:09-cv-00107-DWM (9th Cir. July 28, 2010)

SUMMARY: Alliance for the Wild Rockies (“AWR”) appeals the district court’s denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, we issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). In this opinion, we now set forth the reasons for our reversal, and we take this opportunity to clarify an aspect of the post-Winter standard for a preliminary injunction.

FACTS: In August and September of 2007, the Rat Creek Wildfire burned about 27,000 acres in the Beaverhead-Deerlodge National Forest in Montana. On July 1, 2009, almost two years later, the Chief Forester of the Forest Service made an Emergency Situation Determination for the Rat Creek Salvage Project (“the Project”)...  The Project permits salvage logging of trees on approximately 1,652 of the 27,000 acres that were burned. The logging will take place (and to some degree has already taken place) on thirty-five units of land ranging from 3 to 320 acres in size...  

EXCERPT RE: LIKELIHOOD OF SUCCESS ON THE MERITS: In Winter, the Supreme Court disagreed with one aspect of this circuit’s approach to preliminary injunctions. We had held that the “possibility” of irreparable harm was sufficient, in some circumstances, to justify a preliminary injunction. Winter explicitly rejected that approach. Winter, 129 S. Ct. at 375-76. Under Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction. Id. ...  The majority opinion in Winter did not, however, explicitly discuss the continuing validity of the “sliding scale” approach to preliminary injunctions employed by this circuit and others. Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.  See, e.g., Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). This circuit has adopted and applied a version of the sliding scale approach under which a preliminary injunction could issue where the likelihood of success is such that “serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff’s favor.” Id. That test was described in this circuit as one alternative on a continuum. See, e.g., Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc).  Three other circuits have directly confronted the question whether some version of a sliding scale test has survived Winter. They have split. The Fourth Circuit has held that the sliding scale approach is now invalid. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009) (holding that the circuit’s prior test, which permitted “flexible interplay” among the elements, “may no longer be applied” after Winter), vacated on other grounds, 130 S. Ct. 2371 (2010). The Seventh and Second Circuits have held to the contrary.

EXCERPT RE: APPLICATION OF THE "SERIOUS QUESTIONS" TEST: In granting the ESD for this Project, the Chief Forester considered three factors: (1) the loss of receipts to the government due to delayed commencement of the Project; (2) the potential loss of an “opportunity to accomplish Douglasfir planting and dwarf mistletoe control objectives”; and (3) the “importance this project has to the local economy of southwest Montana.” We hold that, at a minimum, there are “serious questions” on the merits whether these three factors are sufficient to justify the ESD. We consider in turn the three factors upon which the Chief Forester relied...

KEITHINKING: So much for my predicted 9th Circuit shift to judicial restraint.  See prior ESA blawg on Lands Council.  Taking a cynical realist view, perhaps the outcome is a result of the different judges?  (Not one of the Lands Council judges sat on the Alliance for Wild Rockies panel.)  Or then again, perhaps this is just another case of bad facts make bad law?  I find it remarkable that the 9th Circuit didn't take on the facts of the case, reaching a conclusion that, indeed, plaintiffs were likely to succeed on the merits, because the plaintiffs were likely to prevail on their argument that the economic impacts at stake did not justify an emergency authorization of timber salvage sales, two years after the fire.  Instead of embracing this fact-specific approach, the 9th Circuit reaffirmed its less-rigid "serious questions" approach to its analysis of preliminary injunctions.   Compare this approach with the D.C. Circuit, which emphasizes the "likelihood of success on the merits" prong.  As the Court explained in Appalachian Voices, "absent a substantial indication of likely success on the merits, 'there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review.' " quoting Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999).  Or, alternatively, consider the 10th Circuit, which, as explained in the Alliance for Wild Rockies opinion, has carefully avoided the issue:

The Tenth Circuit has a “modified test,” similar to the “serious questions” test, under which “a movant need only show ‘questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation.’ ” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208-09 n.3 (10th Cir. 2009) (quoting Walmer v. U.S. Dep’t of Def., 52 F.3d 851, 854 (10th Cir. 1995)).  Since Winter, the Tenth Circuit has mentioned its “modified test” but indicated that it was not applicable to the case before the court. Id.

BOTTOM LINE: Is it Groundhog day?  In Winter, the 9th Circuit reasoning was rejected by the Supreme Court because it had modified the traditional irreparable harm standard for an injunction to require only a mere "possibility" of irreparable harm.  Here, the 9th Circuit again emphasized its alternative views of a traditional test. -- the "likelihood of success on the merits" analysis -- and replaced it with a lesser "serious questions on the merits" analysis.  Deja vu anyone?  

Another attorney's fees case begs an important question: does the fee-shifting process add anything?


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Friends of Animals v. Salazar, Civil Action No. 09-707, 696 F.Supp.2d 16 (D.D.C. Mar. 16, 2010)(Rosemary M. Collyer, District Judge).

BACKGROUND: On April 16, 2009, the non-profit animal advocacy group Friends of Animals filed a Complaint against Ken Salazar pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1533 et seq., seeking declaratory and injunctive relief. On November 20, 2009, this Court issued a Memorandum Opinion finding that Plaintiff's claim that Defendants had failed to make a 90-day finding on its endangered-species petition, as required by the ESA, was moot and its claim that Defendants had failed to meet the 12-month deadline provided by the ESA had to be dismissed due to Plaintiff's failure to provide Defendants with proper notice, as required by statute. The Court also found, however, that the Plaintiff's lawsuit was the catalyst prompting Defendants to ultimately issue a 90-day finding as required and, therefore, Plaintiff may be entitled to recover attorneys' fees and costs. Plaintiff's motion for attorneys' fees and costs is now before the Court.

EXCERPT: Defendants also argue that Plaintiff should not recover at all for work spent on the motion to dismiss because it did not prevail on that motion.  The D.C. Circuit has noted that “where a plaintiff presents in one lawsuit ‘distinctively different claims for relief that are based on different facts and legal theories,’ the court cannot allow a plaintiff to recover fees on the unsuccessful claims.” Sierra Club v. EPA, 769 F.2d 796, 801 (D.C.Cir.1985).  Rather, the Court must address each of the issues presented and determine whether the claims on which Plaintiffs prevailed were closely related to the ones on which they did not. See id.; Am. Lands Alliance v. Norton, 525 F.Supp.2d 135, 146 (D.D.C.2007). “The mere fact that all the issues in a case stem ‘from the same set of regulations and the same administrative record’ does not mean that the issues are related enough for a partially successful plaintiff to be awarded attorney's fees for work performed on both successful and unsuccessful claims.” Am. Lands Alliance, 525 F.Supp.2d at 146.  Plaintiff's claim regarding Defendants' failure to issue a 12-month finding is distinct from its claim regarding a 90-day finding and, in fact, the 12-month claim was not even properly part of this lawsuit. Plaintiff therefore may recover fees for work expended on the notice letter and Complaint to the extent that work was related to its 90-day finding claim, but not for work related to its 12-month finding claim.   Additionally, “hours reasonably expended on [a motion for fees] are compensable,” Sierra Club, 769 F.2d at 811, so Plaintiff may recover those fees as well. The Court agrees that Plaintiff cannot recover for work spent on the motion to dismiss; Plaintiff did not prevail on that motion and the Court did not have jurisdiction over any of Plaintiff's substantive claims at that point.

KEITHINKING: With all of our nation's difficult budgetary issues, and our massive debt, the time has come to rethink whether the federal government should be paying attorney's fees in these types of cases.  The quaint notion of the "citizen attorney general" was obliterated years ago, and replaced by the well-funded, focused, and capable litigation boutiques that advocate passionately for their causes.  These groups -- think Center for Biological Diversity, and Pacific Legal Foundation -- certainly do not need attorney's fees to incentivize their lawsuits.

In this case, the attorneys for Friends of Animals received $13,124 in fees and costs, with rates calculated at a substantial $410 per hour.  (The taxpayer paid fees for the litigation over the fees, too, a policy that creates a disincentive for settlements.)  But Friends of Animals is a well-established international environmental advocacy group existing since 1957, with $3 million in fundraising income, and a fund balance of $4.7 million, according to the 2008 financial report.  So, was this litigation for payment of $13,124 of taxpayer dollars really necessary?  At a minimum, Congress should consider reducing its attorneys fees exposure in Endangered Species Act litigation by re-asserting its sovereign immunity, and insisting upon a lower and absolute maximum rate (such as the Equal Access to Justice Act's $125 per hour).  Disputes over attorney's fees merely add additional and avoidable burdens to the already overburdened judiciary (and don't forget, the Justice Department and their clients, too.)  For more information about the fee shifting statutes, visit the dated but useful 1994 publication, Awarding Attorneys’ Fees and Managing Fee Litigation, by Alan Hirsch and Diane Sheehey, from the Federal Judicial Center.

Court stops California turtle advocacy group's effort to re-litigate State Department certification process, but Florida group can fight on.


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Turtle Island Restoration Network v. U.S. Dept. of State, No. 09-5239 CW, 2010 WK 2836911 (N.D.Cal. July 19, 2010)(Claudia Wilken, District Judge).

BACKGROUND.  Passed by Congress in 1989, section 609(b)(1) of Public Law 101-162 bans the importation of shrimp harvested with technology that may adversely affect sea turtles. 103 Stat. at 1037. Under section 609(b)(2), this ban “shall not apply if the President shall determine and certify to the Congress” that
    (A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and
    (B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
    (C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.
103 Stat. at 1038. The certification authority under section 609(b)(2) has been delegated to Defendant. Delegation of Authority Regarding Certification of Countries Exporting Shrimp to the United States, 56 Fed.Reg. 357 (Dec. 19, 1990).

In this action, TIRN and Mayport Village, a Florida-based organization that represents the interests of businesses and residents of Mayport, Florida, complain that Defendant's certification process violates the NEPA and the ESA. In particular, Plaintiffs contend that the individual certification decisions made pursuant to the 1999 Guidelines are “major federal actions that have significant impacts on the human environment,” requiring environmental review and public disclosure under the NEPA.  Plaintiffs also assert that these decisions may affect sea turtle species listed as threatened or endangered under the ESA, triggering the consultation requirement under section 7(a) (2) of the ESA. Plaintiffs seek a declaration that Defendant violates the NEPA and the ESA and an injunction requiring Defendant to comply accordingly.

LEGAL ISSUE:  “Res judicata bars a suit when ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ … To determine whether an identity of claims exists, a court considers four factors: “(1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve in-fringement of the same right; and (4) whether substantially the same evidence is presented in the two actions.”   ProShipLine, 594 F.3d at 688

RULING: An identity of claims exists between this action and the earlier Earth Island litigation and, as a result, res judicata bars TIRN's current claims. TIRN complains here that Defendant fails to comply with the NEPA or the ESA in the context of its certification decisions. As explained above, the 1999 Guidelines prescribe the factors Defendant considers in making certification decisions and the procedures through which such decisions are made. The process and, specifically, the 1999 Guidelines were at issue in Earth Island Inst. v. Daley, 48 F.Supp.2d 1064 (CIT 1999), and Plaintiff does not assert that either have materially changed...  At the time of that litigation, it was known that Defendant's process and the 1999 Guidelines did not require that, when it makes certification decisions, it engage in the environmental review and public disclosure that are required when the NEPA applies or the consultation mandated when the ESA applies. As noted above, Defendant intended the 1999 Guidelines to delineate for foreign countries exactly what it considers when making certification decisions. The 1999 Guidelines say nothing about an environmental review or general consultation with other federal agencies.  This placed TIRN on notice that Defendant does not undertake these procedures when certifying foreign countries. Thus, TIRN could have raised its current claims in its prior litigation before the CIT but chose not to do so. …  Accordingly, because TIRN's claims arise from the same transactional nucleus of facts as the previ-ous Earth Island litigation, res judicata bars its claims under the NEPA and the ESA against Defendant's 1999 Guidelines.

KEITHINKING:  This case provides another reminder for aspiring environmental lawyers to work hard in their civil procedure classes.  Generally, the ESA requires review of the "effects of an action," which in turn, usually requires some degree of site specific information.  However, in the context of the shrimp fishery and its effects on turtles, the State Department's 1999 guidelines on the issue are quite detailed, and provide, in effect, for a programmatic approach to consultation -- just a Congress intended when it passed Public Law 101-162 and provided specific direction to the State Department to certify that "the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting."  See generally Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed.Reg. 36,946 (July 8, 1999) (1999 Guidelines).  The State Department's 1999 guidelines were the subject of litigation in  Earth Island Inst. v. Daley, 48 F.Supp.2d 1064 (CIT 1999); Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005 (CIT 2000), and the earlier 1993 version of these guidelines were also the subject of litigation.  See Earth Island Inst. v. Christopher, 913 F.Supp. 559, 562 (CIT 1995); Revised Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 58 Fed.Reg. 9,015 (Feb. 18, 1993) (1993 Guidelines).  With this decision, the California turtle advocates litigation run will end, at least on this issue.  

However, this case also provides an important lesson on forum shopping, client shopping, and the art of legal advocacy.  TIRN, located in Northen California, served as lead plaintiff, but a Florida group, Mayport Village, near Jacksonville, FL, also signed on, frustrated by the certification process, and the bycatch of sea turtles in foreign shrimp trawlers.  See photo below from Sea Turtle Restoration Project.  Due to the Florida group's participation, TIRN's lawyers will still have their chance to plead their case.  As the court held, "Res judicata, however, does not bar Mayport Village's claims because it lacks privity with any plaintiff in the previous Earth Island litigation… Mayport Village's claims are dismissed without prejudice to refiling in a proper venue."

District Court in Florida rejects Tribe's equal protection claims, upholds water management decisions as rational effort to protect Cape Sable seaside sparrows and comply with Endangered Species Act


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Miccosukee Tribe of Indians of Florida v. United States, No. 08-23001-CIV, 2010 WL 2730095 (S.D. Fla., July 12, 2010)(K. Michael Moore, District Judge)

INTRODUCTION.  Federally-recognized Indian tribe claimed that certain water management actions by Defendants caused high water levels on lands to which the Indian Tribe has rights, in violation of the Tribe's constitutional rights. Specifically, the Tribe leased lands within Water Conservation Area 3A,(WCA 3A), part of the Central and Southern Florida Project for Flood Control and Other Purposes (the “C & SF Project”), and the Tribe alleged that decisions not to release waters out of WCA 3A, through water management structures S-12A, S-12B, S-12C, S12D, and S-333, resulted in flooding of tribal lands, and allegedly violated the Fifth Amendment’s equal protection clause.

LEGAL BACKGROUND.  The first step in adjudicating a Fifth Amendment equal protection claim is to determine the applicable level of scrutiny.  Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1244 (11th Cir.2003). When the government creates a suspect classification that distinguishes people along lines of race or alienage, that classification is subject to strict scrutiny. Id...  Alternatively, under intermediate scrutiny, a “preference may be upheld so long as it is substantially related to an important governmental objective.” Id.


FACTUAL BACKGROUND.  On May 15, 2008, a large fire began in Everglades National Park in the vicinity of subpopulation A of the Cape Sable seaside sparrow (the “sparrow”)which ultimately affected over 2000 acres of land. The Fish and Wildlife Service (“FWS”) requested that the S-12A gate opening, scheduled for July 15, 2008, be postponed to help alleviate the fire's impact on the habitat of subpopulation A of the sparrow. Id. The sparrow is protected by the Endangered Species Act and represents one out of eight subspecies of North American seaside sparrow.  (Photo above by FWS from University of Florida, Museum of Natural History.)  In a July 11, 2008, teleconference, the Corps, FWS and Everglades National Park decided to postpone opening the S-12A gate for nine days until July 25, 2008. Id.

The Miccosukee Tribe also claims that the Corps' denial of the Tribe's request to leave the S-12A gate open after November 1, 2008, was motivated by a racial purpose or object or is unexplainable on grounds other than race. In a letter dated October 22, 2008, Billy Cypress (“Chairman Cypress”), the Tribal Chairman of the Miccosukee Tribe sent the Corps a letter requesting that it leave the S12A gate open after the scheduled closing on November 1. The reasons expressed by Chairman Cypress in his letter to the Corps as to why the S-12A gate should be left open included damage to plant and animal life in WCA 3A, degradation of the Tribe's culture and way of life, and risk to the health and safety of Tribe members who live south of the S12 gates and L-29 levee. The Corps responded in a letter dated October 31, 2008, denying the Tribe's request to leave the S-12A gate open.  In its letter, the Corps stated that its denial was based on the need to protect the sparrow and its habitat, the absence of any known danger to the Tribe's health or safety, and the fact that the Corps was taking other actions to offset the reduction of water discharge from WCA 3A caused by closing the S-12A gate.

RULING.  In light of the foregoing, the Miccosukee Tribe has failed to demonstrate that there is a genuine issue of material fact that the Corps' decision … was made with a racial object or purpose, or that its decision is unexplainable on grounds other than race. Accordingly, rational-basis scrutiny applies …  

The Corps left the S-12A gate open from July 15 to July 24, 2008, to protect the fledging of the sparrows and to mitigate the effects of the fire. This is a legitimate goal and the closure of the S-12A gate directly furthered the Corps' goal of protecting the sparrow by keeping water levels low in the relevant area during that period. The closure of the S-12A gate on November 1 was taken pursuant to the WCA 3 A regulation schedule, which in conjunction with the IOP, the BiOp 2006, and other related documents, assists the Corps in achieving its water management obligations in compliance with federal statutory requirements, including the Endangered Species Act. This is a legitimate goal and closure of the S-12A gate on November 1 directly furthered the goal of permitting the Corps to execute its water management obligations. Therefore, the Corps' challenged conduct survives rational-basis scrutiny. Accordingly, summary judgment on the Miccosukee Tribe's equal protection claim is warranted in favor of the Federal Defendants.

KEITHINKING: As the opinion also reveals, the Miccosukee Tribe has made these types of EPC claims multiple times in the past, alleging that various water management actions are discriminatory.  The Court refused to apply res judicata or to otherwise preclude the claim, finding that the new facts and recent water management decisions provided a new basis for a new claim.

District Court case law round up: attempts to abuse ESA injunctions in Hawaii, timber effects on grizzly bears in Montana, and the importance of informal consultation in Washington, D.C.


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Three days, three cases...

Seto and Friends of He ‘eia State Park et. al. v. Thielen, Civil No. 10-00351 SOM-BMK, 2010 WL 2612603 (D.Hawai'i, June 28, 2010)(Susan Oki Mollway, District Judge).
Plaintiff Friends of He ‘eia State Park is a disgruntled former lessee of an interpretive/education center, grounds and facilities at He ‘eia State Park. When Defendant Kama ‘aina Care Incorporated was awarded the new, 25-year lease, Plaintiffs filed suit. In relevant part, Plaintiffs claim that there is a septic system in He ‘eia State Park that is currently leaching human waste into Kaneohe Bay in violation of the Clean Water Act (Motion No. 5), the Coastal Zone Management Act (Motion No. 6), and the Endangered Species Act (Motion No. 7). Plaintiffs assert that Kama ‘aina Care's use of the park will increase use of the toilets at the park, possibly increasing the release of human waste into Kaneohe Bay...  RULING: Rather than seeking to enjoin the alleged discharge of human waste into Kaneohe Bay, Plaintiffs seek a temporary restraining order and a preliminary injunction enjoining the recording and implementation of the lease to “manage and operate an interpretive/education center, grounds and facilities at He ‘eia State Park on Oahu.” In other words, Plaintiffs request that this court enjoin Kama ‘aina Care's entire operation at the park because of the potential that a septic system is leaking raw sewage into the waters of Kaneohe Bay. This court declines to issue such an overbroad injunction, especially because, as Plaintiffs concede, other septic systems exist in the park that might allow Kama ‘aina Care to operate…  This court is certainly not holding that an injunction will never issue for violations of environmental statutes. Instead, the court denies Plaintiffs relief unrelated to the alleged violations. KEITHINKING 1: Another example of an ESA dispute as a proxy for something else.

Alliance for the Wild Rockies v. Bradford, No. CV 09-160-M-DWM, 2010 WL 2633905 (D.Mont., June 29, 2010)(Donald W. Molloy, District Judge)
Alliance sought APA review of U.S. Forest Service and the U.S. Fish & Wildlife Service concerning the Grizzly Vegetation and Transportation Management Project, the Miller West Fisher Project, and the Little Beaver Hazardous Fuels Reduction Project,  (“Little Beaver Project”). The Complaint claims the agencies acted in violation of the Endangered Species Act (“ESA”), 16 U.S.C. § 1533 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. The court upheld the Federal Defendants on many of the ESA related agency actions, but found that the USFS was engaged in timber activities in areas outside the “recovery zones,” and that those activites were not analyzed or authorized.  RULING: “The ESA prohibits take, unless an agency is complying with a written incidental take statement from the Fish & Wildlife Service specifying the measures necessary to minimize take. 16 U.S.C. § 1536(b)(4); 16 U.S.C. § 1536(o)(2). There is no such exemption here for the areas outside the recovery zone. Consequently the inescapable conclusion is the projects thus violate § 9.”  KEITHINKING 2: An ESA lawyer's safest advice: when in doubt, be sure you have a grant of incidental take.

Roads and road density “are among the most serious adverse impacts on the security of grizzly bear habitat and have negatively influenced grizzly bear population and habitat use patterns in numerous, widespread areas.” 2010 WL 2674639 at *2.  As a result, the U.S. Forest Service has developed interim rules for its forest management areas to ensure habitat effectiveness, protect core habitat areas, and keep road densities below appropriate thresholds. As shown in the photo above, some areas in Canada allow for bear traffic to bypass roads by using overpasses.  Photo by Tony Clevenger, Western Transportation Institute, available online in a 2007 issue of Go!,, Iowa State University's transportation publication.

Sierra Club v. Van Antwerp, Civil Action No. 07-1756(RCL), 2010 WL 2600507 (D.D.C., June 30, 2010)(Royce C. Lamberth, Chief Judge).
This case concerns a 500-acre multi-use development located in a Tampa, Florida suburb known as Cypress Creek Town Center (CCTC). See prior ESA blawg.  Plans for the project include retail stores, financial institutions, hotels, restaurants, theaters, offices, and multi-family housing. The project site is located on wetlands, which will need to be “filled” in order for the project to be completed as planned. Because the project site involves the filling of wetlands, the Clean Water Act (CWA) required the project's developers to obtain a special permit prior to construction….  plaintiff's motion for summary judgment on their NEPA and CWA claims will be granted but their motion for summary judgment on the ESA claim will be denied…   RULING: …the Corps contends that the requisite informal consultation was completed pursuant to 50 C.F.R. § 402.13(a) prior to issuing the challenged permit. After the informal consultation process, the Corps contends that it determined that the proposed action was not likely to adversely affect any listed species and the FWS concurred, therefore ending the inquiry and satisfying the ESA… Considering the fact that there is nothing in the record to support a conclusion that the Eastern Indigo Snake actually occupies the CCTC site, the Court finds the Corps' determinations were not arbitrary or capricious…  Additionally…  FWS agreed with the Corps that mitigation measures which are in place will result in a net gain of approximately five acres of potential wood stork foraging habitat…  While it is true that controversy exists about the efficiency of wetland mitigation generally, the Court's role is “not to resolve scientific disputes.” Natural Res. Def. Council v. FAA, 564 F.3d 549, 561 (2nd Cir.2009)…  Finally…  FWS determined that there was no suitable scrub jay habitat in the project area, and the Corps is under no obligation to consult with the FWS with respect to that species. See 16 U.S.C. § 1536(a)(3).  KEITHINKING 3: While an ITP is best, the ESA lawyer's least painful alternative is a well-documented informal consultation.   Then again, in this case, the informal consultation did not help much; the judge, in harsh tones, held that NEPA and the Clean Water Act has been violated.

On appeal, 10th Circuit upholds FWS decisions related to reintroduction of Northern Aplomado Falcon in New Mexico


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Forest Guardians v. U.S. Fish & Wildlife Service, Case No. 08-2226, --- F.3d ----, 2010 WL 2674990 (10th Cir., July 7, 2010)(Gorsuch, McKay and Holmes, Circuit Judges).

SUMMARY: On Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:06-CV-00231-WJ-KBM). Forest Guardians appeals the denial of its petition for review of the U.S. Fish and Wildlife Service's (“FWS”) decision to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons (“Falcons”) into southern New Mexico. Forest Guardians contends that the FWS violated section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1539(j), when it allegedly promulgated a final rule to release captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from an existing Falcon population. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the district court's denial of the petition for review.

EXCERPTS RE: BACKGROUND  Forest Guardians contends that the Falcon, an endangered species, should be permitted to repopulate the United States naturally, while enjoying full protection of its yet-to-be-designated critical habitat under the ESA. On the other hand, the FWS and The Peregrine Fund, which intervened in this action, advocate the release of captive-bred Falcons into southern New Mexico, while decreasing the Falcon's protection under the ESA. Our task is not to decide which strategy is more scientifically sound; rather, we must review the 10(j) rule under the Administrative Procedure Act (“APA”) to determine if the rule was promulgated in accordance with the ESA and NEPA…

In September 2002, Forest Guardians petitioned the FWS to designate critical habitat for the Falcon, pursuant to 16 U.S.C. § 1533(b)(3)(D), after a pair of Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks in 2002. Forest Guardians contended that the FWS should designate a critical habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was no longer extirpated from the United States. In subsequent years, other wild Falcons were increasingly sighted in that area. Nevertheless, the FWS did not respond to the petition.

In 2005, the FWS proposed a rule under section 10(j) of the ESA that would reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to establish a viable resident population of Falcons. (See Final Rule here.) )Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. 6819, 6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the Secretary to authorize the release of an experimental population of an endangered species “out-side the current range of such species if the Secretary determines that such release will further the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). Ordinarily, such a population “shall be treated as a threatened species,” rather than as an endangered species. Id. § 1539(j)(2)(C). If “an experimental population is determined ... to be not essential to the continued existence of a species,” the Secretary may not designate critical habitat for that population. Id. § 1539(j)(2)(C)(ii) (emphasis added). The FWS intended the proposed 10(j) rule to fulfill one of the goals identified in the Falcon's Recovery Plan, viz., to reestablish the Falcon in the United States.

The Northern Aplomado Falcon, “perhaps one of our most colorful birds of prey,” see Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. 6686, 6686 (Feb. 25, 1986), is a medium-sized subspecies of the aplomado falcon historically located in the “savannas, coastal prairies, and higher-elevation grasslands” stretching across the southwestern United States through Mexico and into Guatemala and Nicaragua. In 1986, the Secretary of the Interior (listed the Falcon as endangered because it had been extirpated from its historic range in Arizona, New Mexico, and Texas for approximately thirty years and was known to nest only in Mexico. In listing the Falcon as endangered, the Secretary did not designate a critical habitat. Instead, FWS determined that the reintroduction of captive-bred Falcons as a nonessential experimental population would help to restore the Falcon and  achieve recovery goals.  Photo of Aplomado Falcon in Texas by Tim Cooper from Laguna Atascosa National Wildlife Refuge.
EXCERPT RE: RULING.  In this case, the FWS closely followed the definitions upheld in Wyoming Farm Bureau Federation, 199 F.3d at 1231-32 (citing 16 U.S.C. § 1539(j); H.R.Rep. No. 97-567, at 8 (1982).  Accordingly, we conclude that the FWS's definition of what constitutes a population for purposes of the 10(j) rule is not in conflict with the plain language of the ESA and is a reasonable interpretation of that language. Forest Guardians acknowledges the precedential effect of Wyoming Farm Bureau Federation. However, Forest Guardians reasons that Wyoming Farm Bureau Federation does not offer definitive answers to the issues that it advances here -- whether there is substantial evidence in the record to support the FWS's conclusions that: (1) one breeding pair and the individual Falcons seen in New Mexico themselves do not constitute a population; (2) the dispersing Falcons in New Mexico were too distant from the Mexican population to form part of that population; and (3) the international border was a barrier that prevented a finding that there was such a population.  After carefully reviewing the record, we conclude that substantial evidence supports the FWS's first two conclusions. And we therefore need not reach the FWS's third conclusion. In particular, we note that the record contains several biologists' surveys that monitored the status of the Falcon in New Mexico and Mexico.

KEITHINKING:  As the 10th Circuit explained in this decision, and its prior ruling in Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231-33 (10th Cir.2000), "Congress amended the ESA in 1982 to broaden the FWS's discretion to reintroduce endangered and threatened species into their historic ranges. In particular, Congress added section 10(j) to authorize the FWS to designate certain reintroduced populations of endangered and threatened species as experimental populations.”  In practice, Section 10(j) provides a degree of flexibility for the FWS when it implements the Endangered Species Act to ease reintroduction efforts.  But that is precisely the reason that Section 10(j) repeatedly becomes the subject of litigation. By definition, people care about the the species we bother to reintroduce.  (The ecosystems care, too.)  As a result, strong opinions inevitably clash, often involving well-meaning but idealistic environmental groups who demand a rigid interpretation of the Endangered Species Act (or the administrative record), while simultaneously trying to convince the Courts to ignore the flexibility that Congress provided in that same statute.  See, e.g., ESA blawg on wolf reintroduction.  P.S.  The concurring opinion contains an interesting discussion related to use of the administrative record in NEPA disputes.
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Populations of Humpback Chub go up, but FWS goes down: Federal Judge remands another FWS BiOp on the Glen Canyon Dam for ESA violations.


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Grand Canyon Trust v. U.S. Bureau of Reclamation, Case No. CV-07-8164-PHX-DGC, 2010 WL 2643537 (D.Ariz. June 29, 2010)(David G. Cambell, District Judge).

SUMMARY: This case concerns the operation of Glen Canyon Dam on the Colorado River by the United States Bureau of Reclamation (“Reclamation”). Plaintiff Grand Canyon Trust (the “Trust”) claims that Reclamation's operation of the Dam violates the Endangered Species Act (“ESA”) by jeopardizing and taking the endangered humpback chub and by destroying or adversely modifying its critical habitat. The Trust also claims that Reclamation and the United States Fish and Wildlife Service (“FWS”) have failed to comply with relevant federal statutes, including the Endangered Species Act.

The Court has issued two previous orders addressing the merits of claims made by the Trust in this case: Grand Canyon Trust v. United States Bureau of Reclamation, No. CV-07-8164-PCT-DGC, 2008 WL 4417227 (D.Ariz. Sept. 26, 2008) (Trust I ), and Grand Canyon Trust v. United States Bureau of Reclamation, 623 F.Supp.2d 1015 (D.Ariz.2009) (Trust II ). This order addresses a third round of briefing on the Trust's claims. For reasons that follow, the Court will grant in part and deny in part the Trust's motion for summary judgment on Claim 9, grant summary judgment to Reclamation and FWS on Claims 1, 2, 10, and 11, and take Claim 3 under advisement. The Court will remand the 2009 Incidental Take Statement (the “2009 ITS”) to FWS for further consideration by September 1, 2010, and will establish a schedule for additional activities in this lawsuit once FWS has revised the 2009 ITS.

EXCERPT: The Trust contends that the 2009 ITS is also illegal because the chosen metric for determining when incidental take has been exceeded -- FWS's consultation trigger is not “linked to the take of the protected species” in the mainstem. As discussed above, agencies should attempt to use a numerical value of take. Ariz. Cattle I, 273 F.3d at 1250. “A surrogate is permissible if no number may be practically obtained,” but the surrogate “must be able to perform the functions of a numerical limitation,” must “contain measurable guidelines to determine when incidental take would be exceeded,” and must be “linked to the take of the protected species.” Or. Natural Res. Council, 476 F.3d at 1038.

The consultation trigger does not satisfy these requirements. As noted above, the 2009 ITS concludes that MLFF will not result in a significant drop in the adult chub population. Dkt. # 180-1 at 87. Take in-stead will occur among young chub in the mainstem. Id. FWS does not explain how a trigger based on the adult chub population that is not expected to be affected by the take of young chub constitutes an accu-rate measure for take of young chub. Nor does FWS explain why the level of the trigger itself - a significant decline in the number of adult chub in any single year or a drop in the population of adult fish below 3,500 - represents the point at which the taking of young chub should be deemed excessive. FWS merely notes that young chub will be taken by MLFF, the level of their take cannot be quantified, and, in a single sentence, that FWS therefore will use the consultation trigger as the point at which the take statement will be deemed exceeded. Id. As the Ninth Circuit has held, a surrogate for take must perform the function of a numerical limitation by identifying the point at which it will be clear that the permitted level of take has been exceeded. Or. Natural Res. Council, 476 F.3d at 1038. FWS has failed to show why the adult-based consultation trigger, established by FWS and Reclamation pursuant to 50 C.F.R. § 402.16(b), either accurately measures the take of young chub or correctly identifies the level at which the take of young chub becomes excessive.

ORDERED: The 2009 ITS is remanded to FWS for reconsideration consistent with this order. FWS shall have until September 1, 2010, to revise the 2009 ITS. A copy of the new ITS shall be provided to counsel for the Trust on or before the close of business on September 3, 2010.

KEITHINKING: FWS prevailed on numerous claims related to the 2008 biological opinion, but it only takes one mistake to trigger a judicial remand, and a do-over for the executive branch.  Increasingly, Courts have been remanding biops for the failure to include an adequate "consultation trigger."  See, e.g., 11th Circuit opinion discussed here on ESA blawg.  For more information on the Glen Canyon Dam, the endangered humpback chub, and this litigation, visit FWS Arizona Field Office, USGS report on the experimental flows, the  press release by Earthjustice, and news coverage by High Country News.

The Glen Canyon Dam fundamentally altered historical flows of the Colorado River, in turn triggering the decline of the humpback chub (picture above from the Colorado River Commission of Nevada) and its listing as an endangered species.  Since 1994, FWS and the Bureau of Reclamation have been working on (or, at times, arguing over) the need to modify operations to generate high steady river flows in the spring and low steady flows in the summer and fall, or alternatively, modified low fluctuating flow (“MLFF”) or seasonally adjusted steady flow (SASF). Consistent with the recent  2008 biological opinion, the agencies have agreed on the implementation of a 2008 Experimental Plan - which includes the modified low fluctuating flows (MLFF) approach.  In the past, FWS was concerned that the fluctuating river flows authorized by MLFF - flows that rise and fall as the demand for electrical power generated by the Dam rises and falls - would erode beaches and backwaters needed by young chub to survive and recover, and would maintain temperatures in the river that were too cold for chub survival and recovery.  FWS changed its position in the 2008 Opinion. FWS opined that Reclamation's 2008 Experimental Plan, which would continue to use MLFF for ten months of each year, did not jeopardize the humpback chub or adversely modify its critical habitat.  Notably, the Humpback Chub population increased 50 percent from 2001 to 2008. See USGS summary.

U.S Court of Federal Claims rejects (again) the unripe takings claims of wanna-be developer who lacked an ITP


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Schooner Harbor Ventures, Inc. v. U.S., 92 Fed.Cl. 373 (April 10, 2010).

BACKGROUND: The Mississippi Sandhill Crane was designated an endangered species FN1 in 1973. In 1975, the United States Department of the Interior, Fish and Wildlife Service (FWS) acquired acreage to establish the Mississippi Sandhill Crane National Wildlife Refuge (Refuge), in Jackson County, Mississippi, with subsequent acreage added. In 1977, the FWS established a critical habitat for the Mississippi Sandhill Crane, which also included land outside of the Refuge…   From late 2000 through March 2001, the Navy began searching for property in Jackson County, Mississippi suitable to build 188 units of housing for Navy personnel and their families assigned to the Naval Station at Pascagoula. The Navy became interested in Schooner Harbor's property, which was identified as Site 28.

HISTORY: The United States Court of Federal Claims, Marian Blank Horn, J., 81 Fed.Cl. 404, granted summary judgment to the government, and the Developer appealed. The United States Court of Appeals, Gajarsa, Circuit Judge, 569 F.3d 1359, reversed and remanded. On remand, government moved to dismiss on ripeness grounds.  In the prior Court of Federal Claims proceeding in this case, the Court held that “The government was under no obligation to purchase the plaintiff's property in particular, nor was the seller obligated to sell to a particular buyer if the buyer imposed conditions on the sale. The plaintiff cannot now rewrite the terms of the agreement through a takings claim, given that the Government clearly did not utilize its position as sovereign to appropriate private property from its rightful owner."  Schooner Harbor Ventures, Inc. v. United States, 81 Fed.Cl. at 413-15.  On appeal, the United States Court of Appeals for the Federal Circuit focused on the difference in plaintiffs right to sell as opposed to the right to develop their land. Regarding the former, although reversing and remanding, the appellate court agreed with the trial court's analysis, stating: “Thus, the only possible direct limitation on Schooner Harbor's right of alienation was, as the trial court found, the inability to sell without conditions. Indeed, Schooner Harbor explicitly alleged that it could not sell to the Navy without meeting the Navy's conditions, and that FWS's determination of the scope of those conditions constitutes a taking. The trial court  appropriately analyzed and disposed of this ‘property’ right.” Schooner Harbor Ventures, Inc. v. United States, 569 F.3d at 1364.  However, the Federal Circuit focused attention on plaintiff's “right to develop its land,” which it deemed a cognizable property interest. The Federal Circuit noted that Schooner Harbor “has consistently conflated the right to sell land with the right to develop land,” and identified the latter as the appropriate property right to be reviewed... "We do not hold that FWS has in fact regulated Schooner Harbor's use of Site 28 pursuant to the Endangered Species Act, rather than simply regulating the Navy. This issue does not affect the nature of the property interest asserted, however, but rather affects ripeness.... The trial court must therefore consider whether the case presents a ripened claim that FWS's enforcement of the Endangered Species Act, such as it was, amounts to a compensable taking."

ARGUMENT: Defendant argues that, because plaintiff never applied for an incidental take permit pursuant to Section 10 of the Endangered Species Act, “[t]he FWS therefore never issued or had reason to issue a final agency decision regarding Plaintiff's private development of the property. Thus, Plaintiff has failed to establish that its takings claim is ripe, and the Court must dismiss the claim for lack of subject matter jurisdiction.”

RULING: Because plaintiff no longer owns the property at issue, plaintiff has no present right to develop the property or ability to seek an incidental take permit from the FWS. Therefore, plaintiff cannot cure the defect in its case. Plaintiff's takings claim was not ripe and never can be ripe for adjudication.

ANALYSIS:  Section 9 of the Endangered Species Act (codified at 16 U.S.C. § 1538, titled “Prohibited acts”), provides that it is unlawful to “take” an endangered species. 16 U.S.C. § 1538(a)(1)(B). Private parties seeking to develop property with Endangered Species Act impacts may proceed under Section 10 of the Act (codified at 16 U.S.C. § 1539), titled “Exceptions,” and subsection (a), titled “Permits”. A private party, such as Schooner Harbor, can request an “incidental take permit” from the FWS. The Secretary of the Interior may permit “any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).  The parties have stipulated for the purpose of this motion that Schooner Harbor did not consult the FWS prior to purchasing the 82 acres at issue, had no contact with the FWS prior to learning of the Navy's interest in the property, and never applied to the FWS for an incidental take permit in accordance with Section 10 of the Endangered Species Act…

In the present case, Schooner Harbor never submitted a first permit application. It would be contrary to the public policy of the Endangered Species Act, designed to protect endangered species, to obviate the need to apply for incidental take permits on specific projects just because another development on adjacent land was denied a permit or, as here, was granted permission to develop, but had to take mitigation measures in order to proceed. The Navy's experience reflects that, depending on the use, type and intensity of a public or private plan or proposal, the exercise of FWS' discretion and mitigation are possible, and the project can go forward. Denial by the FWS of a Section 10 incidental take permit was not a foregone conclusion. The nature of the FWS response, which we do not have in the case of Schooner Harbor, is necessary to proceed with a Penn Central regulatory, takings analysis, when all beneficial use of a property is not foreclosed. Again, the Navy's experience suggests that not all beneficial uses of the property at issue necessarily would have been foreclosed by a private plan or proposal for the property. Schooner Harbor's decision to unilaterally bypass the Section 10, incidental take permit process renders its takings claim unripe, and leaves this court without jurisdiction to proceed on plaintiff's claim.

KEITHINKING: Maybe this decision will finally end this needless litigation.  The landowner willingly sells his land to the Navy -- at quite a premium -- yet sues the government for making a massive profit.  Then again, the landowner has lots of extra money to spend!  As noted previously in ESA blawg, the landowner sold portions of the property to others, and the remainder to the U.S. Navy, and in a very brief time, made over $1 million, realizing a doubling in property values, and nearly 10 times the capital outlay of $110,000 or so...  

Ninth Circuit upholds critical habitat analysis, both on meaning of "occupied" habitat and on economic baseline analysis


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Arizona Cattle Growers Ass’n v. Salazar, No. 08-15810, 606 F.3d 1160, 2010 WL 2220036 (9th Cir., June 4, 2010)(Fletcher, Canby and Graber, Circuit Judges).

SUMMARY: Arizona Cattle Growers' Association (“Arizona Cattle”) appeals from the district court's grant of summary judgment rejecting its challenge to the United States Fish and Wildlife Service's (“FWS”) designation of critical habitat for the Mexican Spotted Owl. Arizona Cattle argues that the FWS unlawfully designated areas containing no owls as “occupied” habitat and that the FWS calculated the economic impacts of the designation by applying an impermissible “baseline” approach. We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl. The FWS did not impermissibly treat unoccupied areas as “occupied,” and we hold that it permissibly applied the baseline approach in analyzing the economic impact of the critical habitat designation.

KEITHINKING: The case contains a greatest hits collection of citations to Ninth Circuit ESA case law, and ultimately, creates a clear conflict between the 9th and 10th Circuits.  The strong potential exists for a Petition for Writ of Certiorari to the U.S. Supreme Court...

BACKGROUND: In 1993 the Mexican Spotted Owl (photo above from Zion National Park) was listed as a threatened species under the Endangered Species Act (“ESA”). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation…  In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action…  The 2004 Final Rule concluded that all of the designated habitat was occupied by the owl.

ESA DEFINITION OF OCCUPIED.  The ESA defines a species' critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed ..., on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed ..., upon a determination by the Secretary that such areas are essential for the conservation of the species.  16 U.S.C. § 1532(5)(A). The statute thus differentiates between “occupied” and “unoccupied” areas.

EXCERPT RE: MEANING OF OCCUPIED.  We first consider whether the owl “occupied” the designated areas, as defined by the ESA. We conclude that the FWS permissibly interpreted the word “occupied” in the ESA to include areas where the owl was likely to be present and that, applying this definition, the FWS designated only “occupied” areas…   It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area …  We have ample guidance on the “uncertainty” issue. The ESA provides that the agency must determine critical habitat using the “best scientific data available.” 16 U.S.C. § 1533(b)(2); see also id. § 1533(b)(6)(C)(ii). This standard does not require that the FWS act only when it can justify its decision with absolute confidence. See, e.g., Pub. Citizen Health Research Group v. U.S. DOL, 557 F.3d 165, 176 (3d Cir.2009); Greenpeace Action v. Franklin, 982 F.2d 1342, 1354-55 (9th Cir.1992). Although the FWS cannot act on pure speculation or contrary to the evidence, the ESA accepts agency decisions in the face of uncertainty. Compare Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1244 (9th Cir.2001), with Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60-61 (D.C.Cir.2000).  Turning to the “frequency” component, Arizona Cattle asserts that the word “occupied” is unambiguous and must be interpreted narrowly to mean areas that the species “resides in.” … We cannot agree that “occupied” has an unambiguous, plain meaning as Arizona Cattle suggests. The word “occupied,” standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Cf. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 548 n. 14 (1987) (explaining that there is “clearly” no plain meaning to the phrase “public lands which are actually occupied”).

EXCERPT RE: APPLICATION OF OCCUPIED.  After a thorough review of the record we find that the FWS did not arbitrarily and capriciously treat unoccupied areas as occupied. We reiterate that when an agency is acting within its expertise to make a scientific determination “a reviewing court must generally be at its most deferential.” Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983); Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc), abrogated in part on other grounds by Winter v. NRDC, 129 S.Ct. 365 (2008). The FWS took, as a starting point for its 2004 designation, the three types of habitat management areas that it developed in the 1995 Recovery Plan. Simply by virtue of the definitions of these habitat management types, there is a direct link between the designated territory and owl occupancy…  we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence. Cf. Gifford Pinchot, 378 F.3d at 1066; cf also Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1017 (9th Cir.2006) (rather than counting individual animals, an agency may in appropriate cases use habitat as a proxy). Even more significant is the fact that the FWS excluded areas with evidence of few or no owls. The 2004 Final Rule explains that the FWS “did not designate some areas that are known to have widely scattered owl sites, low owl population densities, and/or marginal habitat quality.” We find this statement supported by record evidence explaining the FWS's decision to exclude several areas due to an absence of owls… The FWS was not attempting to designate areas devoid of owls as “occupied” in the 2004 Final Rule. Although seeming inconsistencies between the FWS's decisions may shed light on the agency's process, and changes from past positions that are unsupported by evidence are unlawful, ultimately it is the 2004 Final Rule that is before the court and our inquiry is whether the FWS exceeded its authority or deviated from the evidence. See Nat'l Ass'n of Home Builders, 551 U.S. at 658-59; Wetlands Action, 222 F.3d at 1122 n. 8. The FWS's analysis solidly demonstrates the connection between the designated areas and owl occupancy, notwithstanding that the agency previously adopted an unnecessarily restrictive view of the areas the owl occupied as limited to known nesting sites. The agency's approach in the 2004 Final Rule was supported by the evidence and within permissible bounds.

EXCERPT RE: ECONOMIC ANALYSIS.  Arizona Cattle challenges the FWS's analysis of the economic impacts of the critical habitat designation. In contrast to the listing decision, under the ESA the agency may designate critical habitat only after considering the economic impact of the designation on any particular area. Id. § 1533(b)(2)…  For the reasons expressed below, we find no fault with the agency's economic analysis.  The parties agree that the FWS applied the “baseline” approach to the economic analysis. Under this approach, any economic impacts of protecting the owl that will occur regardless of the critical habitat designation-in particular, the burdens imposed by listing the owl-are treated as part of the regulatory “baseline” and are not factored into the economic analysis of the effects of the critical habitat designation.  Arizona Cattle, relying on the Tenth Circuit's decision in New Mexico Cattle Growers Association, argues that this was error and that the FWS was required to apply a “co-extensive” approach to the economic analysis. Under the co-extensive approach, the agency must ignore the protection of a species that results from the listing decision in considering whether to designate an area as critical habitat. Any economic burden that designating an area would cause must be counted in the economic analysis, even if the same burden is already imposed by listing the species and, therefore, would exist even if the area were not designated…  We therefore reject the Tenth Circuit's approach in New Mexico Cattle Growers Association as relying on a faulty premise and hold that the FWS may employ the baseline approach in analyzing the critical habitat designation.  The baseline approach is, if anything, more logical than the co-extensive approach. The very notion of conducting a cost/benefit analysis is undercut by incorporating in that analysis costs that will exist regardless of the decision made…  Congress has directed the FWS to list species, and thus impose a regulatory burden, without consideration of the costs of doing so. See 16 U.S.C. § 1533(a); N.M. Cattle Growers, 248 F.3d at 1282. It would be strange to conclude that Congress intended the FWS to consider costs at the critical habitat phase that the agency was barred from considering at the listing phase where, as a result, the analysis would bear little relationship to reality.

Another lesson in jurisdiction: District Court dismisses case based on inadequacy of notice of intent to sue


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Conservation Force v. Salazar, Civil Action No. 09-496 (JDB), --- F.Supp.2d ----, 2010 WL 2244122 (D.D.C.)(Bates, District Judge)

NATURE OF THE ACTION: Plaintiffs-organizations and individuals that support sustainable hunting of the Canadian wood bison have brought suit alleging that the Secretary of the Department of the Interior has violated several provisions of the Endangered Species Act of 1973 (“ESA” or “the Act”), 16 U.S.C. § 1531 et seq., in his treatment of that species. The Canadian wood bison is currently listed as “endangered” under the Act. In 2007, the Canadian National Wood Bison Recovery Team petitioned to “downlist” the wood bison to “threatened,” but the Secretary has not yet made a final determination on the petition. Plaintiffs contend that the Secretary's failure to act on the petition violates the ESA. Several individual plaintiffs also challenge as unlawful the Secretary's failure to process their applications to import wood bison hunting trophies.

BACKGROUND: Plaintiffs, Conservation Force, brought this action in March 2009, a month after the Secretary issued his 90-day finding that the Team's downlisting petition “presents substantial scientific evidence and commercial information indicating that reclassifying the wood bison from endangered to threatened may be warranted.” Id. at 5910. They contend that the Secretary's failure to issue a 12-month finding on the Team's downlisting petition violates the ESA.  The individual plaintiffs also claim that the Secretary's then-failure to process their applications to import wood bison hunting trophies violates both the ESA and their Due Process rights.

NOTICE OF INTENT TO SUE: Plaintiffs submitted an intent to sue letter on January 13, 2009, more than sixty days before they filed suit. But plaintiffs' intent to sue letter lists only two complaints related to the wood bison: the Secretary's then-failure to issue a 90-day finding on the downlisting petition, and the Secretary's then-failure to process plaintiffs' applications to import wood bison trophies. Plaintiffs do not dispute that their intent to sue letter does not explicitly challenge the Secretary's failure to issue a 12-month finding.

RULING: A notice of intent to sue for the failure to issue a 90-day finding does not provide proper notice of intent to sue for the subsequent failure to issue a 12-month finding. See Friends of Animals v. Salazar, 670 F.Supp.2d 7 (D.D.C.2009). In Friends of Animals... the court found that the plaintiff's “failure to provide sixty-days' notice prior to bringing its claims with respect to the 12-month finding means those claims must be dismissed.” Id. So too here, where the need for a 12-month finding remained speculative when the intent to sue letter was submitted on January 13, 2009... “The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue.” Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998)(internal quotation marks omitted). “When given notice, the agencies have an opportunity to review their actions and take corrective measures if warranted. The provision therefore provides an opportunity for settlement or other resolution of a dispute without litigation.” Id. (internal quotation marks omitted). This policy is borne out here: several weeks after plaintiffs sent their intent to sue letter, the Secretary issued the very 90-day finding that plaintiffs sought. See 74 Fed.Reg. at 5910. But plaintiffs gave the Secretary no such “opportunity to review his actions and take corrective measures” relating to his absent 12-month finding for the wood bison. The Court therefore will dismiss plaintiffs' claim that the Secretary's failure to issue a 12-month finding violates 16 U.S.C. § 1533...  The Court will also dismiss, for the same reasons, plaintiffs' additional claims that the Secretary's failure to issue a 12-month finding on the wood bison petition violates several other ESA provisions.

District court says Forest Service exceeded incidental take of salmonids, also finds that grazing permittees must be heard during consultation process


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Oregon Natural Desert Ass’n v. Tidwell, Civil No. 07-1871-HA. Nos. 08-151-HA, 03-381-HA. 2010 WL 2246419 (D.Or., June 4, 2010.)(Haggerty, District Judge)

NATURE OF DISPUTE: Plaintiffs are non-profit environmental organizations. Plaintiffs contend that the NMFS and Forest Service have violated the ESA and National Forest Management Act (NFMA) in managing grazing on the Malheur National Forest (MNF) in ways that are alleged to harm steelhead listed as threatened under the ESA. Intervenors are ranchers permitted to graze cattle on the MNF. Intervenors allege that the NMFS and Forest Service have violated the ESA by arbitrarily limiting grazing on the MNF. Federal defendants contend that the agency actions taken in relation to grazing on the MNF were not arbitrary and capricious and have not harmed protected steelhead.

FACTUAL AND LEGAL BACKGROUND: The Malheur National Forest (MNF) (pictured above) is located in the Blue Mountains of Eastern Oregon and includes portions of the Upper John Day, Middle Fork John Day, and North Fork John Day River watersheds. It contains designated critical habitat for Middle Columbia River (MCR) steelhead, a salmonid listed as “threatened” under the ESA… The MCR steelhead rely upon rivers and streams in the MNF for spawning, rearing, and migratory habitat. Steelhead depend upon cold clear streams and streambeds low in fine sediment, high in large woody debris, and characterized by stable overhanging banks and large pools.  When not managed properly, livestock grazing can degrade salmonid habitat.  The Forest Service authorizes and manages livestock grazing on allotments within the MNF through the issuance of grazing permits, allotment management plans (AMPs), grazing permit modifications (GMPs), and annual grazing authorization letters to permittee ranchers such as intervenors. The National Forest Management Act, 16 U.S.C. § 1604(g)(3)(B), directs the Forest Service to develop an integrated forest plan, or land resource management plan (LRMP) for each unit of the National Forest System. Id. § 1604(a),(f).  Grazing permits, must be consistent with the controlling LRMP, which in turn must be consistent with the NFMA. Id. § 1604(i); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir.2002).

EXCERPT RE: PERMITEES.  Section 7(a)(3) of the ESA provides for applicant involvement during the early consultation process. The statute states that federal agencies shall “consult with the NMFS on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that alisted speciesmay be present in the area affected by the applicant's project and that implementation of such action will likely affect such species.” 16 U.S.C. § 1536(a)(3). Section 7(a)(2), on the other hand, does not expressly provide for such applicant involvement during formal consultation. However, the implementing regulations envision some involvement, because the responsibility to provide the best scientific data available includes a requirement to “provide any applicant with the opportunity to submit information for consideration during the consultation.” 50 C.F.R. § 402.14(d). The ESA Consultation Handbook and Forest Service policies further specify that permit holders are entitled to participate as applicants during the consultation process. See NMFS AR 8351-52 (stating that “users who are party to a discrete action” qualify as applicants and discussing the applicant's role in the consultation process). Because Federal Defendants failed to, at a minimum, provide permittees with “the opportunity to submit information for consideration during the consultation,” the BiOp must be construed as arbitrary and capricious. 50 C.F.R. § 402.14(d).

EXCERPT RE: INCIDENTAL TAKE: It is likely that violations of the ITS were underreported in 2007 and 2008 due to inadequate monitoring by the Forest Service...  The inordinate exceedances of the ITS conditions documented in 2007 on the Murderers Creek and Hamilton/King Allotments and in 2008 on the Fox Creek Allotment are particularly deplorable in light of the Forest Service's appraisal of those allotments as containing moderate to high potential spawning habitat and as having a high risk potential for direct take of steelhead. RP 31202-03. This court has carefully reviewed the administrative record and the extra-record materials submitted by the parties, and concludes that it is possible that take occurred on numerous allotments in both 2007 and 2008, and that it is likely take occurred in 2007 on the Murderers Creek and Hamilton/King Allotments, and on the Fox Creek Allotment in 2008, due to significant habitat degradation.

KEITHINKING: This case also involved a procedural ruling that allowed an expansive administrative record, continuing a trend in ESA litigation.  See also Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir.2007) (holding that the APA's record review provisions do not apply to claims brought pursuant to “the substantive provisions of the ESA”); Defenders of Wildlife v. Martin, 454 F.Supp.2d 1085, 1094 (E.D.Wash.2006). Ultimately, although the District Court did uphold numerous portions of the biological opinion, the administrative record still showed errors in the ESA and NFMA analysis, and the bottom line will be a remand to the agencies for more analysis.  The parties were ordered to confer regarding appropriate remedies and a joint status report is due July 1, 2010.  


Ninth Circuit defers to FWS analysis of project impacts to vernal pool species' critical habitat


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Butte Environmental Council v. U.S. Army Corps of Engineers, 607 F.3d 570, 2010 WL 2163186 (9th Cir., June 1, 2010)(Circuit Judges O’Scannlain, Trott and Paez)

SUMMARY: The Ninth Circuit, after considering whether the Army Corps, U.S. EPA, and U.S. Fish & Wildlife Service violated the Clean Water Act or Endangered Species Act, upheld the lower court, and rejected Plaintiffs claims that the approved construction of a business park on protected wetlands in California was arbitrary and capricious.  The City of Redding's project, sized to provide economic stimulus benefits, impacted hundreds of acres of listed species critical habitat, but did provide at least one-for-one mitigation of all direct impacts to listed species.  The environmental advocacy organizations argued that the impacts should have been considered an "adverse modification" in violation of the Endangered Species Act, but FWS disagreed, and the Ninth Circuit deferred.  

FACTUAL BACKGROUND: After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on wetlands along Stillwater Creek.  The proposed site contained critical habitat for several ESA-listed species under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. These ESA-listed species occupy the site's vernal pools-shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring.

Photo of a Central Valley region vernal pool from UCLA.

ESA CONSULTATION HISTORY: Section 7 of the ESA required consultation with the U.S. Fish and Wildlife Service (“FWS”), which “administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior.” Home Builders, 551 U.S. at 651. The City (and Corps) initiated formal consultation with the FWS.  In its biological opinion, the FWS determined that the proposed Stillwater site contained 356.6 acres of critical habitat shared by the vernal pool fairy shrimp and the vernal pool tadpole shrimp. According to the FWS, the proposed development would destroy 234.5 acres of this critical habitat (amounting to 0.04% of the fairy shrimp's 597,821 acres of total critical habitat nationwide and 0.10% of the tadpole shrimp's 228,785 acres of total critical habitat nationwide). The FWS also determined that the proposed development would directly affect 0.56 acres, and indirectly affect 6.42 acres, of the crustaceans' aquatic habitat. The FWS noted, however, that the City proposed to offset these effects by creating or restoring 0.56 acres of aquatic habitat, and preserving another 18.64 acres, at other on-and off-site locations.  As for the threatened slender Orcutt grass, the FWS reported that the proposed site contained 500 acres of the plant's critical habitat, of which 242.2 acres (amounting to 0.26% of the plant's 94,213 acres of total critical habitat nationwide) would be destroyed. According to the FWS, the proposed development would also directly affect 0.07 acres, and indirectly affect 4.33 acres, of suitable grass habitat itself. The FWS again noted, however, that the City promised to compensate for these losses by creating or restoring 0.14 acres of suitable grass habitat and preserving another 15.94 acres.  The FWS acknowledged that “the proposed project would contribute to a local and range-wide trend of habitat loss and degradation,” and “to the fragmentation and reduction of the acreage of the remaining listed vernal pool species habitat.” Nonetheless, the FWS concluded that “the Stillwater Business Park project, as proposed, is not likely to jeopardize the continued existence of the ... vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” The FWS further concluded that “the proposed project would not result in the adverse modification or destruction of critical habitat” for those species.

CRITICAL EXCERPT: Citing the Ninth Circuit's Gifford Pinchot decision, the Butte Environmental Council also challenges as arbitrary and capricious the FWS's biological opinion that the City's proposed Stillwater project “would not result in the adverse modification or destruction of critical habitat for vernal pool fairy shrimp, vernal pool tadpole shrimp, or slender Orcutt grass.” …  Among other claims, the Council contends that the FWS's finding of no “adverse modification” conflicts with its determination that the proposed Stillwater project would destroy 234 .5 acres of critical habitat for the vernal pool crustaceans and 242.2 acres of critical habitat for slender Orcutt grass. Gifford Pinchot, however, did not alter the rule that an “adverse modification” occurs only when there is “a direct or indirect alteration that appreciably diminishes the value of critical habitat.” 50 C.F.R. § 402.02 (emphasis added); see Gifford Pinchot, 378 F.3d at 1070 (taking issue only with the use of “and” instead of “or” in the regulatory definition of “adverse modification”); id. at 1075 (discussing appreciable diminishment). An area of a species' critical habitat can be destroyed without appreciably diminishing the value of the species' critical habitat overall. As the FWS's ESA consultation handbook explains:

Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species' range, or appreciably diminish the capability of the critical habitat to satisfy essential requirements of the species.

U.S. Fish & Wildlife Serv. & Nat'l Marine Fisheries Serv., Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act 4-34 (1998) (boldface removed). The FWS's determination that critical habitat would be destroyed was thus not inconsistent with its finding of no “adverse modification.” After all, the project would affect only a very small percentage of the total critical habitat for the vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.  The Council maintains, however, that the FWS's focus on the project's impact on the species' total critical habitat “masked the Project's localized impact.” “Focusing solely on a vast scale can mask multiple site-specific impacts that, when aggregated, do pose a significant risk to a species.”   Gifford Pinchot, 378 F.3d at 1075. But where, as here, there is no evidence in the record that “some localized risk was improperly hidden by use of large scale analysis, we will not second-guess the FWS.” Id.

Court defers to FWS, refuses to undo critical habitat designation for fairy shrimp in Otay Mesa, even though evidence was "distinctly thin."


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Otay Mesa Property v. U.S. Department of the Interior, Civil Action No. 08-383(RMC), --- F.Supp.2d ----, 2010 WL 2134295 (D.D.C., May 27, 2010).  U.S. District Judge Rosemary Collyer.
     The owners of 143 acres of property on Otay Mesa in San Diego County, California, sue the U.S. Fish and Wildlife Service (“FWS”) to cancel its designation of this portion of their property as critical habitat for the endangered San Diego fairy shrimp under the Endangered Species Act, 16 U.S.C. § 1531 et seq. The Court now considers the parties' cross-motions for summary judgment.
     The government's evidence that the San Diego fairy shrimp actually “occupied” the property at the time it was designated is distinctly thin. Plaintiffs argue that without such proof, no habitat can be designated as “critical.” Having failed to designate critical habitat when it listed the San Diego fairy shrimp as endangered, FWS did so years later after being reminded of its obligation by a lawsuit. The passage of time necessarily forced FWS to assume that what it discovered later had existed earlier. Because the San Diego fairy shrimp live in vernal pools on land and move rarely, it cannot be said that this assumption was irrational. In addition, while the Court may not have reached the same conclusions as the agency on how to perform the economic analysis of critical habitat designation, that is not what is required. Reviewing the final rule at issue, the Court concludes that FWS is entitled to Chevron deference. Summary judgment will be entered for the Defendants.
     FWS fully explained the analyses that underlie the critical habitat designation for the San Diego fairy shrimp. It need do no more. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984)(quoting United States v. Shimer, 367 U.S. 374, 382-383 (1961)) (“If the agency's choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”)

The presence of vernal pool species, including fairy shrimp, proved particularly controversial in Otay mesa, where it stopped a school construction project.  See Sign On San Diego.  But in the world of fairy shrimp, this fact pattern is common.  According to FWS recovery planning documents, "Of the 53 midvalley fairy shrimp occurrences in the California Natural Diversity Data Base (2003), roughly 19 (36 percent) are directly threatened by proposed development projects."  Fairy Shrimp photo by Dwight Harvey from FWS.  

Another Center for Biological Diversity lawsuit, with an unusual settlement agreement, leads to new regulations governing pesticides


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Center for Biological Diversity v. U.S. Environmental Protection Agency, No. C07-02794 JCS, 2010 WL 2143658 (N.D.Cal., May 17, 2010).

On May 30, 2007, CBD filed a complaint for declaratory and injunctive relief pursuant to Section 7 of the Endangered Species Act (“ESA”) in the Northern District of California, which alleged that the EPA had failed to comply with Section 7 regarding the potential impacts of 43 pesticide active ingredients upon multiple federally protected species listed as endangered or threatened under the ESA. In response, EPA maintained that it cannot determine the effects, if any, of the Pesticides on the species, and define appropriate protective measures, if any, until they have completed further scientific analyses, which may include, but are not limited to, further review under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), §§ 7 U.S.C. 136-136(y), effects determinations made pursuant to the ESA, or consultation with the United States Fish and Wildlife Service (“FWS”) under the ESA, as appropriate.  As a result, CBD and EPA agreed to a stipulation establishing procedures, and even new federal requirements, relating to the use of pesticides and their regulation.  

EXCERPT: "Pursuant to the schedule {delineated in this agreement} the EPA shall make effects determinations and initiate consultation, as appropriate, with the United States Fish and Wildlife Service, pursuant to applicable regulations in effect at the time when the determination is made, regarding the potential effects of the Pesticides on the tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly in the greater San Francisco Bay Area, including the Bay Delta, specifically covering the following California counties - Marin, Sonoma, Napa, Solano, Contra Costa, Alameda, Santa Clara, and San Mateo."

KEITHINKING:  The remainder of the settlement agreement committed EPA to specific schedules for completing the pesticide reviews.  For example, for one group of pesticides, EPA must complete its Effects Determinations at a minimum rate of four per quarter, with the first quarter ending on March 31, 2010 so that EPA completes these effects determinations by March 31, 2012.  For a second group, EPA shall make effects determinations for the following pesticides for the specific species listed at a minimum rate of no less than three per quarter, with the first quarter ending June 30, 2012, so that EPA completes all effects determinations by September 30, 2014.  The settlement also looks much like a rule, with specific guidelines and restrictions for multiple pesticides, tailored to individual species.  This settlement continues a trend in EPA litigation, and policy making, and one that water lawyers will recognize from TMDL and numeric criteria litigation.  See, e.g. recent Chesapeake Bay settlement.   Increasingly, court-ordered settlement agreements seem to be a tool for EPA to establish new policies.  This approach, however, creates consequences, including: (a) diminished public scrutiny outside of the usual APA rulemaking process; (b) preventing policy changes by future administrations; (c) making changes to the schedules difficult by requiring judicial approval, and (d) exposing the agency to judicial contempt proceedings if the deadlines are not met.  Notably, in this case, EPA subjected its own settlement agreement to notice and comment procedures in the Federal Register.

Five cases, four federal publications, and twenty species: catching up on recent Endangered Species Act events


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My newborn will arrive any day now, but the least I can do for my readers is a quick round-up of recent ESA news, caselaw, and announcements that I've been tracking.  

The Pacific Legal Foundation is celebrating a settlement in which the U.S. Fish & Wildlife Service agreed to consider, by July 30, 2010, the Riverside County Farm Bureau's petition to delist the Stephens Kangaroo Rat.  PLF's victory with the one critter may soon be offset by a new wave of litigation.  In Wildearth Guardians v. Salazar, Civil Action No. 09-cv-1893, 2009 WL 6443120 (S.D.Tex., Dec. 7, 2009), the court rejected a motion to dismiss alleging that FWS had unreasonably delayed the completion of a recovery plan for the jaguarundi.  Plaintiffs alleged that an existing 1990 document failed to meet the ESA's recovery plan criteria, and the Court rejected the federal defendants' argument that the statute of limitations had expired.  Get ready for copycat lawsuits against FWS and NOAA alleging a failure to complete adequate recovery plans.

In Florida and Montana, the endless litigation added new chapters.  In Miccosukee Tribe v. U.S. Fish & Wildlife Service, Case No. 05-23045-CIV-MOORE/SIMONTON, 22 Fla. L. Weekly Fed. D259a (S.D. Fla. Mar.19, 2010), the Tribe filed a motion to enforce a mandate from the 11th Circuit decision above, and the District Court held that the amended incidental take statement was invalid in part, because it used habitat markers instead of numerical triggers to measure Cape Sable seaside sparrows, but also held that the ITS was valid as to snail kites and wood storks, because the ITS adequately demonstrates why using a numerical trigger to measure incidental take as result of water management actions was impractical.  In Rock Creek Alliance v. U.S. Forest Service, Nos. CV 05-107-M-DWM, CV 08-028-M-DWM, 2010 WL 1872864 (D.Mont., May 4, 2010), Plaintiffs challenged a 2006 biological opinion on a federally authorized mining project, alleging that the determinations  in the 2006 Biological Opinion were arbitrary and capricious because the grizzly bear analysis relied in part upon the future acquisition of mitigation habitat land.  U.S. District Court Judge Molloy sharply disagreed: "Plaintiffs do not directly assail the rationality of the 'no jeopardy' conclusion, attempting instead to undermine the agency's reasoning by isolating a single aspect of the mitigation plan and arguing on the margins about how much stock the agency placed in it. The argument is incomplete as well as inaccurate."

Perhaps the biggest news came from California in the Sacramento Bay Delta litigation.  In The Consolidated Salmonid Cases, No. 1:09-cv-1053 OWW DLB, : 2010 WL 2011016 (E.D.Cal., May 18, 2010), Judge Wanger issued his Findings of Fact and Conclusions of Law Re: Plaintiffs Request for Preliminary Injunction after considering the claims by water users that the implementation of reasonable and prudent alternatives in a 2009 biological opinion would irreparably harm them.  Finding that an injunction of the salmonid protection measures -- which in turn created water supply and irrigation cutbacks -- was warranted, the opinion noted that "The stakes are high, the harms to the affected human communities great, and the injuries unacceptable if they can be mitigated," and further held that "Injunctive relief cannot be imposed without up-to-date evidence of the status of the species to assure that altered operations will not deepen jeopardy to the affected species or otherwise violate other laws." The pendulum has swung. See Association of California Water Agencies, Pacific Legal Foundation blog.  After another hearing, Judge Wanger issued an order allowing more water use. See  However, the swing of the delta pendulum may be brief.  In Coalition for a Sustainable Delta v. FEMA, Case No. 1:09-CV-2024 OWW DLB, 2010 WL 1904824 (E.D.Cal., May 10, 2010), Judge Wanger granted leave to amend a complaint.  Embracing a strategy familiar to the Key Deer and the Conch Republic, the Plaintiffs now allege that FEMA's administration of the National Flood Insurance Program encourages development in the Delta, which adversely affects four species listed as threatened or endangered under the Endangered Species Act (“ESA”): the delta smelt, the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, and the Central Valley steelhead (collectively the “Listed Species”). Plaintiffs further allege that FEMA is administering the NFIP in violation of ESA Section 7, which requires federal agencies to insure that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. See 16 U.S.C. §1636(a)(2).

Finally, in recent pages of the Federal Register:
  • FWS announced the reopening of the comment period on a proposed rule to designate critical habitat for Ambrosia pumila (San Diego ambrosia), see 75 Fed. Reg. 27690 (Tuesday, May 18, 2010);
  • FWS announced intent to prepare a draft environmental impact statement (EIS) to evaluate the impacts of several alternatives relating to the proposed issuance of an Endangered Species Act Permit to EverPower Wind Holdings, Inc., its subsidiary Buckeye Wind LLC, and its affiliates (applicant) for incidental take of the Indiana bat (Myotis sodalis), a Federal endangered species, from activities associated with the construction and operation of a wind power project in Champaign County, Ohio. 75 Fed. Reg. 29575 (Wed., May 26, 2010);
  • NOAA proposed to affirm the Endangered Species Act (ESA) status for the Oregon Coast (OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) by promulgating a rule that will supersede a prior February 11, 2008, listing determination for this ESU. 75 Fed. Reg. 29489 (Wednesday, May 26, 2010);

Judge ignores the sound and fury of the briefs: simple failure to consider the salmon recovery plan leads to a remand of Washington State water quality regulations


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Wild Fish Conservancy v. U.S. Environmental Protection Agency, No. C08-0156-JCC, 2010 WL 1734850 (W.D. Wash, April 28, 2010)(Judge Coughenour).

BACKGROUND: Plaintiff filed this lawsuit in January 2008, arguing that the Environmental Protection Agency (EPA) and the National Marine Fisheries Service violated the Clean Water Act and the Endangered Species Act by approving Washington State regulations which exempt Puget Sound salmon farms from general sediment management standards. Plaintiff argues that the EPA violated the Clean Water Act by approving regulations that are inconsistent with the Act's requirements, and that both agencies violated the Endangered Species Act by ignoring the best scientific and commercial data when they engaged in an inter-agency consultation process. Plaintiff points with particular force to data about sea lice and the hazards they create for wild fish. According to Plaintiff, the EPA and the Fisheries Service ignored scientific literature tending to show that sea lice are likely to adversely affect native species of fish like the Chinook salmon, Chum salmon, and Steelhead trout

EXCERPT: For the Court, however, this case boils down to a single fact, which reduces the bulk of the parties' lengthy arguments and filings to nothing more than “sound and fury, signifying nothing.” WILLIAM SHAKESPEARE, MACBETH act 5 sc. 5.  The plain fact of the matter is that the Fisheries Service and EPA ignored a salmon recovery plan and an orca recovery plan that the Fisheries Service itself describes as “incorporating the best available science to date for salmon recovery,” and “based on the best available science,” respectively. They ignored these plans when concluding that proposed Washington State water-quality regulations were “not likely to adversely affect wild salmon populations or their  critical habitat.” It is difficult for the Court to square the agencies' failure to use the recovery plans with the requirement under the Endangered Species Act that federal agencies “use the best scientific and commercial data available.” See 16 U.S.C. § 1536(a)(2). It goes without saying that the Fisheries Service's own recovery plans were available to the Fisheries Service when it reached its conclusion. Because the recovery plans constitute the best available science, and because the record demonstrates that the agencies failed to use them in reaching their decision, an obvious conclusion follows: The agencies failed to use the best available science in determining that formal consultation was unnecessary. The agencies thereby ran afoul of the Endangered Species Act.

The parties' lengthy briefs contain many other arguments, none of which affects the Court's holding…  This case is actually relatively straight-forward: When making decisions that require them to “use the best available scientific and commercial data available,” the Fisheries Service and the EPA failed to use recovery plans that the Fisheries Service itself describes as containing the “best scientific evidence available.” For this reason, the Court must set aside the agencies' conclusion - which they reached after informal consultation - that the Washington State pro-posed water-quality regulations are “not likely to adversely affect endangered or threatened species or critical habitat.”

ORDER: The Court therefore SETS ASIDE the EPA's 2008 decision to approve Washington State's proposed water-quality standards dealing with salmon farms. The Court ORDERS the Fisheries Service and the EPA to re-consider whether formal consultation is required - this time taking into account the best available science.

Federal courts publish recent opinions on Mexican spotted owls and grizzly bears


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In this electronic era, I find it frustrating that Westlaw and Lexis cannot identify these cases sooner; nevertheless, here are two published cases finally uncovered by my preset searches...


In Precision Pine & Timber v. U.S., 596 F.3d 817 (Fed. Cir. Feb. 19, 2010), a timber buyer sued the United States because the Forest Service suspended 14 timber sales contracts pending its compliance with the Endangered Species Act (ESA).  The United States Court of Federal Claims, 50 Fed.Cl. 35, (Damich, J), granted buyer summary judgment, but the United States Court of Appeals largely reversed the decision.  As a factual matter, the 1993 listing of the Mexican spotted owl as an endangered species, and the associated implementation of the ESA and its regulations, eventually led to the suspension of Precision Pine's timber contracts to comply with the consultation process and to ensure survival of the species.  Legally, Precision Pine alleged breach of contract, including breaches of express warranties and implied duty of good faith and fair dealing, but the appellate court disagreed:

"The valuable benefit Precision Pine bargained for was the right to harvest timber in a certain place, at a certain time. Significantly, however, the contracts expressly qualified that benefit... For our purposes, the relevant qualification is in the provisions that provide for the situation which arose here - the listing of a new species and delays associated with reassessing Forest Service projects. Under the contract terms, Precision Pine 'agreed to interrupt or delay operations under this contract, in whole or in part' to prevent serious environmental degradation or to comply with a court order, such as the injunction...  similarly, the contract allowed the Forest Service to modify or cancel the contracts in order to comply with the ESA..."


Meanwhile, Greater Yellowstone Coalition v. Servheen, 672 F.Supp.2d 1105 (D. Mont. Sept. 21, 2009) is the case that triggered the recent FWS announcement regarding the re-listing of the grizzly bear.  See ESA blawg.  The ruling contains two noteworthy sections, in which the Court refused to defer to FWS judgment, taking a rigid view of the demands of the ESA, and the failures of FWS.  First, in discussing the Conservation Strategy, which included substantial monitoring protocols for bear habitat, the court held that the monitoring requirements and future plans were unenforceable and do not protect the grizzly bear population. ("Promises of future, speculative action are not existing regulatory mechanisms.")  This reasoning, however, seems suspect.  Not only does it dismissively reject conservation activities by state wildlife entities -- perhaps raising concerns under ESA  section 6 -- but it also creates an impossible-to-escape logical loop.  Evidently, a species cannot be deemed to recover, and thus delisted, unless rigidly mandatory conservation duties are left in place on the state... which, of course, the delisting of the species was intended to remove in the first place.  Second, the decision takes a very hard look at the FWS analysis, and the record, on the issue of whether climate change will impact whitebark pine, an important grizzly bear food source: "The agency has not articulated a rational connection between the best available science and its conclusion that bears will not be affected by declines in white-bark pine because they are omnivorous. While the Final Rule emphasizes that grizzly bears will be able to adapt to the decline of whitebark pines, the record contains scant evidence for this proposition...  The science relied on by the Service does not support its conclusion that declines in the availability of whitebark pine will not negatively affect grizzly bears.  In fact, much of the cited science directly contradicts the Service's conclusions. While the agency's discretion is broad in its area of expertise, the discretion is not unlimited. The record supports the Service's own statements that the extent of declines in whitebark pine and the grizzlies' response is 'uncertain.'  Where the agency's conclusions contradict the science, the conclusions are not reasonable and the Court need not defer to the agency's decision."  

Violate the ESA, or NEPA? Federal Judge says agency's implementation of BiOp requires additional NEPA analysis


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CONSOLIDATED SALMONID CASES, No. 1:09-CV-1053 OWW DLB, 2010 WL 796772 (E.D.Cal. March 5, 2010).

KEITHINKING: In this Memorandum Decision re: Cross-Motions for Summary Judgment, U.S. District Judge Oliver Wanger, presiding over the ongoing disputes related to Delta smelt and salmonid protection in the Sacramento Delta, exposed an irreconcilable conflict between the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).  The opinion concludes that when a federal agency actually implements a reasonable and prudent alternative, as recommended by NOAA Fisheries (or presumably the U.S. Fish & Wildlife Service too), the federal agency must complete an environmental assessment (or maybe an EIS) to comply with NEPA.  In other words, when an federal action agency completes the ESA consultation process, and gets the expert advice from NOAA or FWS as to what the ESA mandates to avoid jeopardizing the continued existence of a species, the federal agency faces a Hobson's choice: (A) comply with the BiOp (and the ESA) and implement the RPA, but do so immediately, in violation of the NEPA requirements (note: NEPA's evaluations of alternatives can't be done until the RPA actually exists), or (B) proceed without the necessary environmental review under NEPA, but violate the requirements of the ESA and continue the status quo that jeopardizes the species in the first place.  Given the choice, I'd violate NEPA too, and force the judge to enjoin me, rather than violating the ESA, and risking criminal penalty or species extinction.  But in the end, even though Judge Wanger held that NEPA was violated, he refused to issue an injunction, and RPA implementation is ongoing.  Preliminary injunction proceedings are scheduled for late March and early April, but as Judge Wanger further noted on the concluding page of his opinion: an injunction should not issue where "enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources." Save Our Ecosystems, 747 F.2d 1240, 1250 n. 16 (9th Cir.1984).  


FACTUAL BACKGROUND: These consolidated cases all challenge the June 4, 2009 issuance of a biological opinion by the National Marine Fisheries Service (NMFS), finding that the coordinated operations of the federal Central Valley Project (CVP) and State Water Project (SWP) are likely to jeopardize the continued existence and adversely affect the critical habitat of certain salmonid and other species (2009 Salmonid BiOp), as well as the implementation of the terms of that BiOp by the United States Bureau of Reclamation (Reclamation). Because the 2009 Salmonid BiOp found that planned coordinated Project operations would jeopardize the continued existence of and/or adversely modify the critical habitat of several of the species, NMFS proposed a Reasonable and Prudent Alternative (RPA) that imposes a number of operating restrictions and other measures on the Projects. The RPA included numerous elements for each of the various project divisions and associated stressors, which NMFS concluded "must be implemented in its entirety to avoid jeopardy and adverse modification." Id. at 578. On June 4, 2009, Reclamation, which manages the CVP, informed NMFS that it "provisionally accepts the RPA while we carefully evaluate the 2009 Salmonid BiOp and the RPA."

ISSUE: Plaintiffs in all of the consolidated cases move for summary judgment, arguing that issuance and/or implementation of the BiOp/RPA is "major federal action" that will inflict harm on the human environment, and that NMFS and/or Reclamation should have, but did not conduct an environmental assessment (EA) or prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). Federal Defendants and Defendant-Intervenors oppose. Plaintiffs replied and submitted a supporting declaration. It is undisputed that no NEPA assessment or documentation was prepared by either NMFS or Reclamation in connection with the issuance, provisional adoption, and/or implementation of the 2009 Salmonid BiOp and RPA.

RULING: Plaintiffs' are entitled to summary judgment on their claim against Federal Defendants that Reclamation's provisional adoption and NMFS and Reclamation's implementation of the 2009 Salmonid BiOp and its RPA without preparing any NEPA documentation violated NEPA.

EXCERPT: Here, NMFS concedes that the RPA will materially reduce water exports by 5-7 percent, or approximately 330,000 AF.2009 Salmonid BiOp at 720. As with the Smelt NEPA Decision, that such reductions have the potential to significantly effect the human environment are beyond dispute. The smelt reductions have already caused such impacts...  This is not to say that such effects will definitely occur. Federal Defendants and Defendant Intervenors may dispute the magnitude of these effects and/or the causal connection between implementation of the 2009 Salmonid BiOp RPAs and the effects, but there can be no dispute that "there are substantial questions" about whether coordinated operation of the CVP and SWP under the RPAs "may cause significant degradation of the human environment." Native Ecosystems Council, 428 F.3d at 1239. No more is required to trigger NEPA. It was up to the agencies to take the required "hard look." They did not. Once they satisfy their NEPA obligations, the course of action ultimately undertaken is entitled to deference.

One federal court stays out of salmon enforcement case, a second dives in on attorneys fees.


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Salmon Spawning and Recovery Alliance v. Ahern, 2010 WL 890047, Case No. C05-1878Z (W.D. Wash, March 9, 2010),

BACKGROUND: This case was originally filed in this Court in 2005, transferred to the Court of International Trade (“CIT”) in 2006, appealed to the Federal Circuit in 2007, remanded to the CIT in 2008, and transferred back here in 2009. Salmon Spawning & Recovery Alliance v. Basham, 477 F.Supp.2d 1301 (Ct. Int'l Trade Mar. 6, 2007); Salmon Spawning & Recovery Alliance v. U.S. Customs, 550 F.3d 1121 (Fed.Cir.2008); Salmon Spawning & Recovery Alliance v. Basham, No. 06-00191 (Ct. Int'l Trade May 13, 2009).

ISSUE: The only remaining claim in the case is Plaintiffs' claim under Section 7(a)(2) of the Endangered Species Act (“ESA”), in which Plaintiffs allege that the U.S. Customs and Border Protection (“Cus-toms”) and U.S. Fish and Wildlife Service (“FWS”) are violating the ESA and the Administrative Procedure Act (“APA”) by “continuing to allow the import into the United States of ESA-listed salmon caught in Canada without having completed the consultations required by section 7 of the ESA.”

RULING: There are five cases discussed by the parties where the agency actions were not considered to be ongoing agency actions because the agencies lacked sufficient discretion over the completed agency actions to regulate the private action at issue...  The alleged failure of Customs and FWS to enforce the salmon import ban does not constitute agency action within the meaning of ESA Section 7(a)(2).

KEITHINKING: It was full of sound and fury, but in the end, perhaps it signified nothing.  Importantly, the issue in this case was not whether an agency SHOULD be increasing its enforcement efforts to prevent illegal imports of endangered species.  The precise question at issue here is whether a federal courts should be determining how the federal agencies exercise that enforcement discretion.  Environmentally-minded plaintiffs would argue that they are simply trying to ensure that the enforcement decision follows certain procedural steps.  Conservative or government-minded opposition would respond that the ultimate outcome is discretionary anyway, so the court should not dictate that process.  See also prior ESA blawg.


Friends of Animals v. Salazar, Civil Action No. 09-707 (RMC), 2010 WL 936222 (D.D.C., March 16, 2010).

BACKGROUND: On April 16, 2009, Friends of Animals filed an ESA-based complaint, Plaintiff's claim that Defendants had failed to make a 90-day finding on its endangered species petition became moot, and Plaintiffs other count was dismissed because they failed to provide Notice of Intent to sue.  Despite that, the Court also found that the Plaintiff's lawsuit was the catalyst prompting Defendants to ultimately issue a 90-day finding as required.

ISSUE: Plaintiff sought to recover attorneys' fees and costs.

RULING: Plaintiff will be awarded $13,124 in fees and costs.

KEITHINKING: The Court filled out the blank Federal check, but in my opinion, Plaintiffs should have recovered much less for sloppy, cut-and-paste lawyering by a law student.  Describing the work, the judge explained as follows:  "The Court finds it is reasonable for an inexperienced attorney - or, as here, a law student - to take more than the 10.4 hours the MacClarence court deemed appropriate for drafting a complaint. The Court agrees, however, that the fact that the Complaint purported to sue Steven Williams in his capacity as Director of FWS, when Mr. Williams had not been Director for several years at the time of filing, suggests that Plaintiff's counsel worked from a template that has been used many times before. This is further evidenced by the fact that the majority of the Complaint is citations to statutory provisions, with only the Factual Background and Prayer for Relief sections containing information unique to this case.  The Court therefore will reduce the amount of time spent on the Complaint by 50% to account for the fact that it appears to be largely boilerplate and for the time spent addressing the 12-month deadline claim, on which Plaintiff did not prevail."  

I DISSENT.  The Endangered Species Act does not say "thou shalt get fees, no matter what."  Rather, it has a discretionary clause that says that the judge "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."  In this case, for at least part of the work (for which the judge awarded more than $2600), ZERO was appropriate.  

ESA update: News, Musings, Federal Register announcements and other holiday happenings


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Merry Christmas and Happy New Year, ESA blawg readers.  It was good timing for a vacation from blogging.  As usual, the Thanksgiving to Christmas period was fairly calm on the Federal front, with only a small number of FWS announcements:
  • FWS found that listing the black-tailed prairie dog as either threatened or endangered is not warranted, 74 Fed. Reg. 63344 (Thursday, December 3, 2009). In its analysis, FWS states that "the magnitude and imminence of threats do not indicate that the blacktailed prairie dog is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout its entire range...  (and despite plague and climate change) and resulting impacts on the species, occupied habitat (a surrogate measure for population trends and status) in the United States has increased by more than 600 percent since the early 1960s. The species has proven to be quite resilient."
  • FWS found that find that listing the Sprague’s pipit, one of the few endemic birds of the North American grasslands, may be warranted. 74 Fed. Reg. 63337 (Thursday, December 3, 2009).  The analysis noted that native habitat is disappearing, and "there are no regulatory mechanisms that govern conversion of native grassland to cropland when migratory birds will be impacted."
  • FWS also proposed to designate 13 miles of stream habitat as critical habitat for the vermilion darter. 74 Fed. Reg. 63366 (Thursday, December 3, 2009).  The species is only known in parts of the upper mainstem reach of Turkey Creek and four tributaries in Pinson, Jefferson County, Alabama.  Suitable streams have pools of moderate current alternating with riffles of moderately swift current, and low water turbidity.


    The judicial arena was somewhat more active, the long-awaited decision in the epic, nine-year old Ringling Bros. case, ASPCA v. Feld Ent't, 03-2006 EGS, (D.D.C.) was abundantly unfulfilling.  Avoiding the thorny substantive issues relating to whether a circus commits an ESA-regulated take through its elephant treatment, Judge Sullivan held that the environmental groups lacked standing. See Washington Post.  Discussing the ex-trainer witness and plaintiff, The court found that "Mr. Rider is essentially a paid plaintiff and fact witness who is not credible, and therefore affords no weight to his testimony." (Then again, this conclusion is remarkable in that it shows the lengths to which some animal rights groups have gone to establish a basis for their lawsuits.  Could a motion for sanctions and attorneys' fees be forthcoming?)  For outstanding coverage of the case and trial, visit Endangered Species and Wetland Report.  Photo of a Ringling Bros. elephant and trainer using a bullhook from The Elephant Sanctuary.

    Another noteworthy decision was Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. 09-1519-RWT, (D. Md.), in which a wind energy project in West Virginia was stopped because of concerns over Indiana bats.  The energy company, according to the Judge, had only itself to blame for its failure to obtain incidental take coverage for its impacts to species.  "Sadly, defendants' environmental consultant viewed formal communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly," the judge said.  The Beech Ridge case clearly demonstrates the potential power of the ESA to stop projects and actions.  

    The Indiana bat is hardly the only species that serves as a source of leverage for some interest groups.  The Center for Biological Diversity and Turtle Island Restoration Network filed a formal notice today that they intend to sue the Obama administration for illegally delaying protection of penguins under the Endangered Species Act, citing the harms of climate change and industrial fisheries.  And from the other side of the political spectrum, but recognizing the similar potential for ESA regulation of western land management, the Pacific Legal Foundation and Riverside County Farm Bureau sued to force action by the FWS on the Kangaroo rat delisting petitions filed in 1995 and 2002.  

    PLF unquestionably enjoyed FOX's "fair and balanced" three-part series on property rights, entitled Not So Private Property?: Endangered Species Pose Problems for Landowners.   The article states that "According to the act, the government can dictate how private property is used if it's home to an endangered species -- and can even require landowners to help pay for programs that preserve certain endangered wildlife."  Sadly, but perhaps predictably, FOX neglected to mention that the requirements to pay for protective measures are only triggered when the landowner takes an action that harms a listed species, which in turn triggers the requirements of the ESA.

Federal judge in D.C. refuses to supplement the record


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The Cape Hatteras Access Preservation Alliance v. U.S. Department of the Interior
Civil Action No. 09-236-RCL, 2009 U.S. Dist. LEXIS 105300 (D.D.C., November 4, 2009)

BACKGROUND: At issue is whether this Court should consider a report that relates to the conservation of piping plovers, the Biological Opinion for Cape Hatteras National Seashore's Interim Protected Species Management Strategy and various supplements to it (collectively "the BiOp"), either because it was actually a part of the administrative record before the Service, though FWS did not designate it as such, or as extra-record evidence in the event the Court finds it was not a part of the administrative record.

EXCERPT: As the plaintiffs have failed to overcome the strong presumption that FWS properly designated the administrative record by demonstrating that the BiOp was before FWS when it was designating critical habitats, it is hereby ORDERED that their motion to supplement the administrative record is DENIED;

KEITHINKING: Once again, an ESA-based case addresses an oft-disputed procedural issue of administrative law; this time, discussing the denial of a supplement to the administrative record, and distinguishing the occasionally misused decision of Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).

The piping plover is a small, sand colored shorebird that nests at beaches in eastern North America, including the Outer Banks of North Carolina and portions of the Cape Hatteras National Seashore. Since 1986, the species has been classified as threatened in the eastern United States. CHAPA v. Dep't of the Interior, 344 F. Supp. 2d 108, 115 (D.D.C. 2004) (Lamberth, J.). As a result of the piping plover's threatened status, in 2001 the Fish and Wildlife Service ("FWS" or "Service") designated some 137 coastal areas as critical habitat for the piping plover. Eighteen of these critical habitats were in North Carolina.  Photo of a piping plover on the Carolina shore, from the U.S. Army Corps, Wilmington District

Federal judge denies permanent injunction against animal trapping in Maine, finds no irreparable harm to Canada lynx population


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Animal Welfare Institute v. Martin, CV-08-267-B-W, 2009 U.S. Dist. LEXIS 105268 (D. Me., November 10, 2009)

BACKGROUND. On March 24, 2000, the United States Fish and Wildlife Service (USFWS) designated Canada lynx as a threatened species under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. 65 Fed. Reg. 16052 (March 24, 2000) (codified at 50 C.F.R. § 17.11). Since 1967, substantially before this designation, but consistent with it, the state of Maine has made it illegal to intentionally hunt or trap lynx...  Even though it has long been illegal in Maine to deliberately trap lynx, lynx have found their way into traps set for other legally-trapped animals and have been subject to incidental takes, which are themselves prohibited by federal law and regulation. See Animal Welfare Institute v. Martin, 588 F. Supp. 2d 70, 98-99 (D. Me. 2008)  See prior ESA blawg

RULING.  The Court denies the Plaintiffs ' request for permanent injunction against the state of Maine's (and Maine Department of Inland Fisheries and Wildlife) current trapping regulations because it finds that the Plaintiffs have failed to prove the Canada lynx as a species will suffer irreparable harm if the injunction is not granted...  

EXCERPTS RE: INCIDENTAL TAKE DUE TO TRAPPING.  After evaluating the evidence, the Court finds that AWI has not demonstrated that Maine's current Conibear trap regulatory scheme is likely to cause incidental takes of Canada lynx.  he Court accepts Dr. Elowe's testimony that none of the lynx captured in Conibear traps since 1999 was caught in traps that would be legal under Maine's current regulatory scheme. Accordingly, the Court concludes that AWI has failed to demonstrate a likelihood of success on the merits as to Conibear traps. ...  However,  Faced with persistent evidence of incidental takes of lynx in leghold traps, IF&W concedes that "it is likely that lynx will continue to be caught in foothold traps." Def.'s Br. at 12. Because these incidental takes have occurred and are likely to continue to occur, the Court concludes that AWI has met its burden of proof to establish it is likely Canada lynx will be subject to incidental takes from leghold traps in contravention of the ESA under Maine's current regulatory scheme.

EXCERPTS RE: APPLICATION OF IRREPARABLE HARM STANDARD.     AWI maintains that "a taking of a single protected species" is the appropriate irreparable harm standard and the trapping of a single lynx is all that is required. Id. at 15-16. (citing Loggerhead Turtle v. County of Volusia County, 896 F. Supp. 1170, 1180 (M.D. Fla. 1995)...   The Court has carefully considered AWI's arguments, but finds them unpersuasive. Instead, the Court continues to conclude that Coxe is authoritative in the First Circuit for determining irreparable harm. 10 Under Coxe, injunctive relief is not mandatory upon every take that violates the ESA. Coxe, 127 F.3d at 171 (observing that TVA rejected the proposition "that injunctive relief is mandatory upon a finding of a violation of the ESA"). The Court retains discretion and is "not mechanically obligated to grant an injunction for every violation of law." Id...    The Court reiterates its view that the proper test for determining irreparable harm is effect on the species as a whole, not on individual members of the species, unless the take of an individual member has been demonstrated to affect the species as a whole.

EXCERPTS RE: IRREPARABLE HARM TO SPECIES AS A WHOLE.   Despite its centrality in the parties' dispute, the parties do not even agree on the number of lynx in the state of Maine. This factual issue is obviously significant, since the number of recorded takes of lynx must be tested against the total lynx population to evaluate the impact of the takes on the species...  Dr. Elowe, the State's expert, testified that IF&W estimates that Maine has "at least 650 breeding pairs. Breeding adults, not breeding pairs."  ...AWI is intensely skeptical of Dr. Elowe's population estimates. In rebuttal, Dr. Paquet described Dr. Elowe's population modeling as "simplistic" and "rather crude." Id. 1182:21-24. He thought the population figures were "overinflated." ...  From the Court's perspective, AWI's criticisms of the State's methodology, however valid, do not entirely negate the probative value of Dr. Elowe's estimate. Moreover, there is no countervailing expert guidance from which the Court could reasonably determine a more accurate figure.

Canada lynx kits, photos from USFWS/Maine DIFW

EXCERPTS RE: IRREPARABLE HARM DUE TO TRAPPING INJURIES.    Since 1999, IF&W itself has engaged in a radio-collaring program in which it has captured approximately 100 lynx in foothold traps. ... Some lynx had litters of kittens after being caught in leghold traps. Trial Tr. 659:2-10; 661:4-9. In sum, IF&W records and Dr. Elowe's testimony suggest that lynx can be caught in leghold traps, sustain minor injuries, return to the wild, and continue to live successfully and to propagate after being trapped.  ...   In proving its case, AWI is handicapped by an absence of its own specific evidence, and, rather than positing the results of its own Maine-based lynx-specific studies, it resorts to undercutting IF&W's data, and to extrapolating its generalizations to the lynx in Maine. From the Court's perspective, this amounts to a failure of proof.

CONCLUSION.  The Court has analyzed each of the disputed factual contentions... AWI bears the burden of proof, and simply put, it has failed to convince the Court hat its view of the evidence is more likely than not; AWI has failed to satisfy the irreparable harm prong of the injunction standard.  The Court need go no further.  The Court concludes that Animal Welfare Institute and the Wildlife Alliance of Maine failed to sustain their burden of proof to demonstrate that the Canada lynx will suffer irreparable harm if an injunction against the state of Maine does not issue. The Court DENIES the Plaintiffs' request for permanent injunction.


Federal judge in Arizona defers to FWS and Forest Service analysis, rejects claims of effects on Mexican spotted owl


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Center for Biological Diversity v. U.S. Forest Service, No. CV-09-8116-PHX-FJM, 2009 U.S. Dist. LEXIS 103382 (D. Az. Nov. 5, 2009)

BACKGROUND:  The Warm Fire was started by lightning on June 8, 2006, in the Kaibab National Forest and burned approximately 60,000 acres. This action challenges a project known as the "Warm Fire Recovery Project," which involves the rehabilitation and recovery of approximately 39,000 acres burned by the Warm Fire in the North Kaibab Ranger District. Specifically, the Project proposes to harvest fire-killed trees and reduce fuel loads for future fires on approximately 9,000 acres, and reforestation tree planting on approximately 10,000 acres. The Forest Service identified three "purposes and needs" for the Warm Fire Project: (1) recover economic value from burned timber, (2) reforest burned conifer stands, and (3) reduce fuel loads, while retaining sufficient standing dead trees ("snags") for wildlife habitat and woody debris to benefit soils. FS AR doc. 426 at 16939-41... Of the 9,000 acres of burned land proposed for logging, 3,460 acres are in critical habitat designated for the Mexican Spotted Owl ("MSO"). In 2004, the MSO was listed under the Endangered Species Act as a threatened specie and critical habitat was designated, including land in the North Kaibab Ranger District.

LEGAL ISSUE:    Plaintiffs now challenge the decision to authorize the Warm Fire Project. They argue that (1) the FWS violated the Endangered Species Act ("ESA"), 16 U.S.C. § 1536, by concurring with the Forest Service's determination that the Project is "not likely to adversely affect" the MSO...

RULING:  In the present case, the FWS agreed with the Forest Service's conclusion that the Project was not likely to adversely affect the MSO. FS AR doc. 399. Given the lack of MSO sightings and because the Project Area was severely burned by the Warm Fire, the FWS determined that the MSO's occurrence in the Project Area was "extremely unlikely" and that "any potential direct or indirect effects on individuals of the species are discountable." Id. Plaintiffs argue that the FWS's concurrence was arbitrary and capricious and therefore violated the ESA...  the administrative record sufficiently demonstrates that the Forest Service and FWS considered the advice of their scientists, describes the progression of the consultative process, and evidences the coordination and compromise incorporated in that process.

Image shows fire suppression efforts by the U.S. Forest Service associated with the Kaibab Forest, Warm Fire Project, Post-fire recovery.

SEE ALSO, USFS News Release,

Judge rejects FWS biological opinion on Florida development permit and impacts to wood storks, but finds Army Corps met conservation duties


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National Wildlife Federation v. Souza, 2009 U.S. Dist. LEXIS 99674 (S.D. Fla., Oct. 23, 2009)

BACKGROUND: In 2007, the Corps issued a Clean Water Act ("CWA") § 404 permit to J.D. Nicewonder. Such permit has since been transferred to the Intervenor. Plaintiffs allege that by issuing this permit the Corps "has permitted the destruction of 645 acres of the Cocohatchee Slough in Collier County for a 1,713-acre luxury residential golf community known as 'Mirasol.'" (D.E. No. 1 at 2-3). Plaintiffs allege that the Cocohatchee Slough "stores and filters water needed to sustain life in the Western Everglades." Id. at 2. Plaintiffs also allege that the Cocohatchee Slough "provides essential 'core' foraging habitat for the endangered word stork." Id. at 3. Specifically, Plaintiffs allege violations of the Endangered Species Act ("ESA"), the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedures Act ("APA").

RULING: After careful consideration, the Court finds that the FWS's biological opinion is inadequate with regard to its failure to analyze the impacts of other federal projects in the area in analyzing the environmental baseline and based on the FWS's calculation of fish prey density in the opinion. The Court declines to reach Plaintiffs' argument that Corps's reliance on this biological opinion with respect to these issues was arbitrary and capricious. The Court, however, finds all Plaintiffs' other arguments are without merit.

KEITHINKING: Noteably, the opinion by Judge Jose Martinez includes a specific endorsement of the Corps' Southwest Florida Environmental Impact Statement as sufficient to meet the ESA's 7(a)(1) affirmative duty to conserve listed species.

Judge Wanger rejects commerce clause challenge to ESA


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The Delta Smelt Consolidated Cases, 2009 WL 3273843 (E.D. Cal., Oct. 8, 2009)

INTRO: This case concerns the United States Fish and Wildlife Service's (FWS) December 15, 2008 biological opinion (BiOp or 2008 BiOp) concerning the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) on the threatened delta smelt, prepared pursuant to Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. §§ 1536(a)(2). Before the court for decision are cross motions for summary judgment on Plaintiffs' Stewart & Jasper Orchards', et al., (Stewart Plaintiffs) sixth claim for relief, which alleges that "because the delta smelt is a purely 'intrastate species,' and because it has no commercial value," the application of sections 7(a)(2) and 9 of the ESA to the delta smelt is an "invalid exercise of constitutional authority" under the Commerce Clause...

EXCERPT: although Congress had multiple motivations for passing the ESA, including ethical and aesthetic considerations, the ESA has strong underpinnings in market regulation. Among other things, one of the ESA's regulatory goals is to protect a monetarily valuable natural resource, our planet's biodiversity, which is proclaimed by express Congressional findings. "To allow extinction of animal species is ecologically, economically, and ethically unsound." 119 Cong. Rec. 25,668 (1973) (statement of Sen. Tunney). "The value of this genetic heritage is, quite literally, incalculable.... From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations." H.R. Rep No 93-307, at 57. It is "hard to imagine a stronger expression of Congress' belief that species preservation substantially affects the national economic interest." Bldg. Indus. Ass'n of Superior Cal. v. Babbit, 979 F.Supp. 893, 907 (D.D.C.1997)...  Protecting "biodiversity" as a whole cannot be accomplished by protecting only those species that are mobile enough to cross state lines or those whose ranges happen to extend over multiple states. Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity. The application of section 7 to the facts of this case is a valid exercise of Congress' Commerce Clause power.

CONCLUSION: All of Plaintiffs' and Amici's contentions and arguments have been fully considered. They are not new and have been universally unsuccessful before other courts. The analysis here is not different...  (1) Plaintiffs do not have standing to contest the application of ESA § 9, and, even if they did, arguendo, any such claim would be unripe and if the merits reached, the section 7 analysis is equally applicable to reject the claim as a matter of constitutional law on the merits. Plaintiffs' motion for summary judgment is DENIED...  (2) A section 7 claim is raised in the complaint, Plaintiffs have standing to bring such a claim, and Federal Defendants' and Defendant Intervenors' motions for summary judgment focus on section 7. These motions are ripe for adjudication...  (3) The application of section 7 to require federal agencies to evaluate effects of planned Project operations on the delta smelt is a valid exercise of Congress' Commerce Clause power. Federal Defendants' and Defendant Intervenors' motions for summary judgment on Plaintiffs' sixth claim for relief are GRANTED.

The export of Northern California’s water from Sacramento Delta to benefit agricultural areas west of San Joaquin Valley, accomplished in part by the Tracy Pumping Plant (pictured above) kills millions of  fish (including California's delta smelt) and involves billions of dollars (and don't forget, many millions in attorney's fees).  Photo from

Plaintiffs lose in two separate Florida cases challenging federal actions related to Perdido Key beach mouse and Everglades restoration


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Fisher v. Salazar,- - F.Supp.2d - -, 2009 WL 3030736 (N.D.Fla.)(William Stafford, District Judge)
INTRO: The plaintiffs, Paul and Gayle Fisher (the "Fishers") and Perdido Key Property Rights, Inc. ("PKPR") (collectively, "Plaintiffs"), filed this action alleging that the defendants (collectively, "Defendants"), through the United States Fish and Wildlife Service ("FWS"), designated critical habitat for the Perdido Key beach mouse "without adequate delineation or justification and without sufficient analysis of the economic and other impacts of the designation." Before the court at this time are the parties' cross-motions for summary judgment.

The Perdido Key beach mouse can be found in the wild only on Perdido Key, a barrier island consisting of 2,943 acres of coastal land from Perdido Pass in Alabama to Pensacola Bay in Florida. Historically, this mouse ranged the entire length of Perdido Key (16.9 miles), inhabiting burrows dug into primary, secondary, and higher-elevation scrub dunes. By 1980, the effects of human development, coupled with a 1979 category 4 hurricane, led to the extirpation of all but a single colony of thirty mice living at Gulf State Park at the westernmost end of Perdido Key.  Photo of Perdido Key beach mouse by Auburn University and AL Cooperative Research, available at USFWS Panama City Ecological Services Office

BACKGROUND: A final rule designating revised critical habitat was published on October 12, 2006. Final Rule, 71 Fed.Reg. 60238 (Oct. 12, 2006).   The 2006 final rule designates 1300 acres--991 acres of public land and 309 acres of private land--as critical habitat for the Perdido Key beach mouse. Specifically, the revised designation consists of five land units that, together, comprise a little less than half of the total acreage of Perdido Key...  Like the federal government, the State of Florida has an Endangered and Threatened Species Act. Fla. Stat. § 379.2291. By rule, the Florida Fish and Wildlife Conservation Commission ("FFWCC") has listed the Perdido Key beach mouse as an endangered species  

RULING ON STANDING: Quite simply, the facts " 'set forth' by affidavit or other evidence" are so minimal as to preclude this court's finding on a motion for summary judgment that the Fishers have standing to challenge the critical habitat designation of either unit 2 or 4, the only two units consisting of private lands.

RULING ON MERITS:  Even if the court were to assume, for the sake of argument, that Plaintiffs do have standing to challenge the designation of unit 2, unit 4, or both, the court finds that they have not demonstrated that the FWS's designation is invalid...
In this case, the FWS hired Industrial Economics, Inc., to prepare a report analyzing the economic impacts of critical habitat designation on Perdido Key and elsewhere. The consultants' report--dated September 8, 2006-- describes the framework for analysis in some detail...  Plaintiffs disagree with the methods and results of the consulting firm's distributional-effects analysis, but they altogether fail to establish that the FWS's reliance on that analysis was arbitrary and capricious. As mentioned above, an agency decision is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43. Plain-tiffs here have demonstrated nothing of the sort.

KEITHINKING:  Although ultimately tangential to the Courts' conclusions, the opinion includes a useful explanation of the region's approach to regulation of the beach mouse, with excerpts below.  The availability of these programs probably contributed to the Court's readiness to rule against the Plaintiffs, both on their standing, and on the merits.

EXCERPT:  Because incidental take becomes a factor based on a species' presence on land, the FWS has a specific protocol for determining the presence or absence of beach mice. In the words of the FWS: "A single trapping event can provide evidence of beach mouse presence in an area if beach mice are caught; however, due to detection probabilities, a single trapping event, during which no beach mice were caught, does not determine absence. Our trapping protocol recommends quarterly trapping for two years as necessary to determine absence of beach mice.  Final Rule, 71 Fed.Reg. 60238, 60241 (Oct. 12, 2006). If presence of beach mice is documented on private lands where no critical habitat designation exists, private landowners are nonetheless required to minimize impacts on the beach mouse and, where applicable, to obtain permits and perform mitigation. On the other hand, according to FWS, neither a permit nor mitigation is required for property owners who rebuild within the footprint of previous developments...  

In December of 2005, a year before the FWS issued its final rule revising the designation of critical habitat, the Board of County Commissioners entered into an agreement with the FFWCC and the FWS to establish a unified process for mitigating impacts to the Perdido Key beach mouse. Wanting to establish a single administrative mechanism for managing and spending funds generated from various sources for beach mouse conservation, the parties established a conservation fund--the Perdido Key Conservation Management Fund--into which both state and federal permitting applicants may voluntarily contribute funds as a means of mitigating the effects of development on the beach mouse. The three governmental parties agreed to a unified mitigation fee of $100,000 per acre of impact, plus a recurring fee of $201 per development unit per year. The availability of this unified contribution approach was expected to streamline the permitting process, thereby reducing costs and delays, by simultaneously meeting the requirements of all three levels of government (county, state, and federal).


Miccosukee Tribe v. USA, No. 08-22966-CIV, 2009 WL 2872989 (S.D.Fla. Sept. 1, 2009)

BACKGROUND: Plaintiff's Complaint contains five counts alleging Defendants violated the Endangered Species Act (ESA) as a result of the Modified Water Deliveries to Ever-glades National Park project (MWD project). N1As part of the MWD project, Defendants, through the Army Corps of Engineers (Corps), plan to construct a one-mile bridge, which would be part of the Tamiami Trail. The Complaint alleges that the construction of the bridge would result in increased water flow and increased water levels in certain areas of the Everglades and, as a result, the habitat of the endangered Snail Kite would be harmed, thus harming the Snail Kite, as well as the endangered Wood Stork.  Defendants move to dismiss all of Plaintiff's claims based on the express language contained in the Omnibus Appropriations Act of 2009, Public Law 11- 8, 123 Stat. 524 (the "Omnibus Act"), N2which Defendants argue renders Plaintiff's claims moot, deprives Plaintiff of any claim upon which relief can be granted, and deprives the Court of jurisdiction over Plaintiff's claims.

KEY RULING: Congress's mandate is clear: the Corps "shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2a to U.S. Highway 41 (the Tamiami Trail) ..." Again, looking at the ordinary meaning of the language employed by Congress, it would be impossible to comply with the mandate of the Omnibus Act and ESA because compliance with ESA in the manner Plaintiff seeks would prevent the Corps from construction of the specified portion of the Tamiami Trail "immediately and without further delay."  When statutory provisions conflict, the latter enacted provision controls to the extent of conflict with the earlier enacted provision. See, e.g., Nguyen v. United States, 556 F.3d 1244, 1253 (11th Cir.2009). Thus, the Omnibus Act exempted this specific portion of the MWD project from complying with ESA.

The Tamiami Trail project is located in Miami-Dade County in south Florida. The purpose of the Tamiami Trial Modifications component is to identify the alterations to the Tamiami Trail that would improve water flow into Everglades National Park.  Photo of waters flowing under Tamiami Trail from the U.S. Army Corps of Engineers.

KEITHINKING: The Miccosukee Tribe filed five different lawsuits in an attempt to stop the Tamiami Trail project.  Although they obtained one preliminary injunction, and some defeats have been appealed, they have lost every decision that has reached the full merits.  See related links from the Everglades Foundation, South Florida Business Journal, and Miami Today.  

Two similar dock cases, two very different outcomes


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A tale of two docks.  In a recent Oregon case, Northwest Environmental Defense Center v. National Marine Fisheries Service, No. CV 08-939-MO, 2009 WL 2486039 (D. Or., Aug. 12, 2009), the U.S. Army Corps and NOAA Fisheries won a complete victory, successfully defending a biological opinion and its analysis of the impacts of the City of Oswego's dock demolition and replacement project.  In a fact-intensive case, the Court's deferential analysis upheld the Federal agencies actions on seven different Endangered Species Act claims.  The very next day, the Federal Defendants did not fare quite as well in Preserve Our Island v. U.S. Army Corps, No. C08-1353RSM, 2009 WL 2511953 (W.D.Wash., Aug. 13, 2009), a case involving issuance of a permit for the construction of a barge-loading facility on the eastern shore of Maury Island, an is-land in Puget Sound located within King County, Washington.  Ultimately, the Court determined that the informal consultation process resulted in the arbitrary and capricious issuance of "no adverse effect" determinations "in the face of scientific evidence in the record which suggests specific and serious effects" on Chinook and Southern Resident Killer Whales.  "The Court finds that the Corps violated the plain meaning and intent of Section 7(a)(2) of the ESA by ignoring or disregarding evidence that would require formal consultation with the Service."  KEITHINKING: The first case was a dispute over whether the agency "did it right," ultimately turning on the degree of judicial deference.  In comparison, the second case was a dispute over whether an agency "did it at all," with the final outcome reflecting the lack of support in the administrative record.  

NRDC lacks standing to bring ESA challenge against Central Valley Project water contracts


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NRDC v. Kempthorne, No. 1:05-CV-1207 OWW SMS (E.D. Cal., June 3, 2009).
OLIVER W. WANGER, District Judge.

BACKGROUND: Plaintiffs' Third Amended Complaint, Docket No. 575 (Apr. 8, 2008), alleges that Federal Defendants acted unlawfully by executing 41 long-term Central Valley Project ("CVP") contracts without performing adequate reviews under the Endangered Species Act ("ESA") and that, by executing and implementing those contracts in reliance on what it knew or should have known to be a faulty ESA review, the Bureau of Reclamation ("Reclamation") failed to comply with the ESA.

EXCERPT:  (1) Plaintiffs lack standing to challenge Reclamation's execution and implementation of the Delta-Mendota Canal Unit Water Service Contracts ("DMC Contracts"). To have standing, Plaintiffs must establish a causal connection between these contracts and harm to the delta smelt. But while the administrative record establishes such a connection between water deliveries and harm to the delta smelt, the terms of the DMC Contracts expressly allow Reclamation to take actions to protect the delta smelt, including not delivering any water to DMC Contractors if required "to meet legal obligations" such as Section 7(a)(2) of the ESA. These shortage provisions break any chain of causal connection between the execution and ongoing performance of the DMC Contracts and harm to the delta smelt. Moreover, further ESA consultation would not make the DMC Contracts more protective of the delta smelt because these contracts are already entirely defeasible if the ESA so requires.   (2) Plaintiffs' claims fail as to the Sacramento River Settlement Contracts ("SRS Contracts") because Reclamation's discretion is substantially constrained by prior contract. Therefore, following the Supreme Court's decision in Home Builders, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2008), Section 7(a)(2) of the ESA does not apply to the SRS Contract renewal process. Specifically, Article 9(a) of the SRS Contracts requires Reclamation to renew these contracts for the same quantity of water, the same allocation of water between base supply and project water, and the same place of use on specifically designated land as the original contracts. By executing the original SRS Contracts, Reclamation surrendered its power to change these terms.

Federal judge in Oregon grants limited preliminary injunction of cattle grazing in National Forest to guard against irreparable harm to steelhead


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Oregon Natural Desert Association v. Kimbell, Civil No. 07-1871-HA. (D. Oregon, June 15, 2009).
HAGGERTY, District Judge

EXCERPT: Because the United States Forest Service (Forest Service) has reinitiated formal consultation pursuant to § 7 of the Endangered Species Act, they are required to prove that the grazing proposed for the Malheur National Forest (MNF) for 2009 will not jeopardize listed species. Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1035 (9th Cir.2005). Federal defendants have shown that their grazing proposals for 2009 will not jeopardize listed species, however, the court is unable to rely on their assertions that their proposals will be properly executed. Due to the Forest Service's repeated failures to carry out planned mitigation and monitoring measures on the MNF, this court finds it prudent to enter an order ensuring the implementation of the Forest Service's proposals. Accordingly, a limited preliminary injunction is appropriate.

ANALYSIS: Plaintiffs have shown that they are likely to succeed on the merits of multiple claims against the Forest Service and National Marine Fisheries Service and that irreparable harm to Middle Columbia River (MCR) steelhead is likely to occur if this court does not partially enjoin grazing on the allotments at issue...  The Forest Service and permittees are required to utilize all mitigation measures contemplated by the 2007-2011 Biological Opinion and all those proposed for the 2009 season in representations to this court...  If the Forest Service determines that it cannot comply with applicable environmental laws and construct the proposed fencing for a particular pasture, then no cattle shall be grazed on that pasture absent the express permission of this court.

Photos, by ONDA, of stream conditions in Malheur National Forest, showing impacts of cattle grazing on Sept. 27, 2007 (on left) and benefits of recovery on Sept. 28, 2008 (on right).  

Safari Club wins Article III standing dispute in challenge to polar bear rule, but loses standing arguments in dispute over captive antelope rule


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In re Polar Bear Endangered Species Act Listing and Section 4(d) Litigation and Safari Club International, et al. v. Salazar, et al,
No. 08-881(EGS).  Misc. Action No. 08-764 (EGS).  MDL Docket No. 1993.  Nos. MISC.A. 08-764EGS, MDL.1993.  2009 WL 1750413 (D.D.C. June 22, 2009).
EMMET G. SULLIVAN, District Judge.

BACKGROUND: Plaintiffs Safari Club International ("SCI") and Safari Club International Foundation ("SCIF") bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"), against defendants Ken Salazar, Secretary of the Interior, H. Dale Hall, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively "FWS"), challenging the FWS's legal determination that the listing of the Polar Bear as threatened under the Endangered Species Act creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the Marine Mammal Protection Act.  Defendants argue that they are entitled to judgment on the pleadings because (1) plaintiffs have failed to state a claim upon which relief can be granted because the action they challenge is not final agency action for purposes of the APA; and (2) because plaintiffs lack standing to challenge the statements in the Final Rule related to the importation of polar bear trophies.

THE FINAL RULE: On May 15, 2008, the FWS issued a final rule listing the polar bear (photo above from FWS by Dave Olsen) as a threatened species throughout its range. See 73 Fed.Reg. 28,212 (May 15, 2008) ("Final Rule"). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that "Under the MMPA, the polar bear will be considered a 'depleted' species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be avail-able under section 104(c)(5) of the MMPA."  73 Fed.Reg. at 28236.

 OPINION RE: FAILURE TO STATE A CLAIM.  The APA requires that the agency action in question must be final before a party may seek judicial review. 5 U.S.C. § 704...  Plaintiffs argue that although technically there may remain the additional step of the agency denying SCI members' permit applications, the FWS's determination in the Final Rule that import permits for polar bear trophies will no longer be granted is final for purposes of judicial review. This Court agrees...  here, if anything, the legal determination SCI and SCIF are challenging is even more final, as it definitively establishes that any applications for a Section 104(c)(5) permit will not be granted.

OPINION RE: STANDING.  To satisfy Article III of the Constitution's "case" or "controversy" requirement, a plaintiff ordinarily must establish that (1) he or she has "suffered an 'injury-in-fact' "; (2) there is a "causal connection between the injury and the conduct complained of"; and (3) the injury will likely be 'redressed by a favorable decision.' " See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).   Re: Injury in fact.  Some SCI members have scheduled and even paid for polar bear hunts in 2009 and 2010, and still others may decide not to plan hunts because they will no longer be permitted to import any trophy they may obtain if the hunt is successful...  they are not required to wait for the inevitable formal denial of their permit applications. Re: Causal Connection.   Plaintiffs' allegations that SCI members can no longer obtain import permits are not "speculative"; the Final Rule makes clear that the only possible response an individual applying for a permit to import a sport-hunted polar bear trophy can reasonably expect to receive is a denial of his or her application. In other words, the Final Rule is determinative. Therefore, plaintiffs have satisfied the causal connection requirement. See, e.g., Bennett, 520 U.S. at 170-71.  Re: Redressability.  This Court finds that if plaintiffs were to prevail on their claims and the Court were to enjoin the FWS from denying the import applications based on the Final Rule, plaintiffs' injuries would be redressed.


Friends of Animals v. Salazar, Civil Action 04-01660 (HHK),Civil Action 06-02120 (HHK), 2009 U.S. Dist. LEXIS 53919 (D.D.C. June 22, 2009).
HENRY H. KENNEDY, JR., District Judge.

BACKGROUND: In these consolidated cases, two sets of plaintiffs, Friends of Animals ("FOA") plaintiffs and Rebecca Ann Cary ("Cary") plaintiffs, bring an action against the Department of Interior, the Fish and Wildlife Service of the Department of Interior, and officials of these agencies in their official capacities (collectively, the "FWS"). The Safari Club International and Exotic Wildlife Association (collectively, the "Safari Club") also intervened as defendants. Plaintiffs allege that the FWS unlawfully promulgated a rule under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (the "ESA," or the "Act") exempting three endangered antelope species, the scimitar-horned oryx, the addax, and the dama gazelle (collectively, the "antelope" or the "antelope species"), when bred in captivity in the United States, from the import, take and other prohibitions contained in the Act...  Private ranches in the United States breed the antelope species in captivity. Some of these ranches allow sport hunters to kill antelopes for a fee. At the same time that the FWS listed the antelope as endangered, it also issued a rule ("Rule") under paragraph 10(a)(1)(A) of the Act excepting United States captive-bred members of the antelope species from the take and other prohibitions of section 9 of the ESA. 70 Fed. Reg. 52310 (Sept. 2, 2005). The FWS found, "based on information available to the Service, captive breeding in the United States has contributed significantly to the conservation of these species." Id. at 52315.

Photo of a dama gazelle at Black Eagle Ranch.

RULING RE: ORGANIZATION STANDING BASED ON INFORMATIONAL INJURY.  Both plaintiffs assert organizational standing to challenge alleged violations of subsections 10(c) and 10(d) of the ESA based on an informational injury. They argue that these subsections grant a statutory right to information regarding each permit. The Rule, according to plaintiffs, eliminates these permit requirements and so deprives them of their statutory right to that information...  ESA Subsection 10(d) states that exceptions may only be granted if the FWS "finds and publishes its finding in the Federal Register that (1) such exceptions were applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy" of the Act. 16 U.S.C. § 1539(d). Such findings, plaintiffs contend, provide interested persons with important information that they would not otherwise be able to obtain. Without the opportunity to learn that the FWS issued a permit and the bases for the permit, according to plaintiffs, plaintiffs cannot ask the agency to reconsider its position or challenge a permit in court...   The court concludes that plaintiffs have suffered an informational injury which confers standing to challenge the Rule under subsection 10(c) of the Act.

RULING RE: REPRESENTATIONAL AND ORGANIZATIONAL STANDING.  FOA plaintiffs argue that Feral has standing to challenge the Rule because the Rule injures her aesthetic interest in viewing the antelope species in the wild. They state that Feral has visited Senegal to observe wild antelopes, has devoted herself to the preservation of wild antelopes, and intends to return to Africa to see them again. The Rule is fairly traceable to this injury, according to FOA plaintiffs, because it increases the incentive for poachers to kill wild members of the antelope species by creating a legal market for antelope parts and trophies...  The court finds that FOA plaintiffs do not have standing on this basis because even if Feral has suffered an injury, she has not demonstrated that it is fairly traceable to the Rule...  Also, beyond the deprivation of information that hinders plaintiff organizations in the informational service they provide to their members and their ability to participate in the subsection 10(c) process, plaintiffs have not demonstrated that the Rule hinders their activities in any other concrete way.

RULING ON THE MERITS: THE EXEMPTION VIOLATES THE ESA.  Plaintiffs argue that the FWS violated subsection 10(c) of the ESA when it issued a blanket exception for all per-sons who breed the antelope species in captivity in the United States without any requirement for an application and case-by-case assessment of that application. They argue that the plain language of subsection 10(c) demands that permits be issued on a case-by-case basis, pointing to provision that "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." See 16 U.S.C. §1539(c) (emphasis added). The FWS rejoins that the plain language dictates just the opposite and point to the language of paragraph 10(a)(1), which states that "the Secretary may permit . . . any act otherwise prohibited by section 9 . . . to enhance the propagation or survival of the affected species." See id. § 1539(a)(1) (emphasis added). The court concludes that plaintiffs are correct and that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application...  Subsection 10(c) reads, in part, "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. . . . Information received by the Secretary as part of any application shall be available to the public . . . ." 16 U.S.C. § 1539(d) (emphasis added). Through this language, Congress clearly contemplated that the FWS would exercise its authority to grant exceptions under "this section" (i.e., section 10) by responding to individual applications.

Even without site-specific facts, U.S. District Court Judge says USDA's informal consultation on programmatic forestry rule revisions failed to comply with ESA


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Citizens for Better Forestry v. U.S. Department of Agriculture, No. C 08-1927 CW (N.D. Cal. June 30, 2009)

BACKGROUND: Plaintiffs Citizens for Better Forestry, et al. (collectively, Citizens) charge Defendants United States Department of Agriculture (USDA), et al. with failing to adhere to procedures required by the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) when they promulgated regulations that govern the development of management plans for forests within the National Forest System.  In 1976, Congress enacted the National Forest Management Act (NFMA) to reform management of the National Forests. At the highest level, the NFMA requires the USDA to promulgate national uniform regulations that govern the development and revision of regional and local plans. 16 U.S.C. § 1604(g).  The second tier of National Forest regulation consists of land
resource management plans (LRMPs), also known as forest plans, which apply to large “units” of the forest system. 16 U.S.C. § 1604(a).  The third-tier of regulation consists of “site-specific” plans. 16 U.S.C. § 1604(i).

ESA RULING: The USDA argues that it has complied with the ESA because it engaged in informal consultations with the wildlife agencies and prepared a Biological Assessment (BA)...  Although the USDA engaged in correspondence with the wildlife agencies before it completed its BA, it is also undisputed that the agencies did not issue a written concurrence with the USDA’s finding that its 2008 Rule would have no effect on endangered species. Although an agency may be excused from the ESA’s consultation requirements if it concludes that its proposed action will have “no effect” on protected species (as opposed to concluding that is “unlikely to affect” protected species), see Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447-48 (9th Cir. 1996), two courts have
rejected USDA’s argument that the programmatic nature of the plan development rule necessarily means that it will have no effect on the environment or protected species. The USDA has simply copied those rejected legal arguments in a new document and called it a “Biological Assessment.” This is not sufficient to satisfy the ESA’s requirements.

KEITHINKING: Federal agencies frequently experience frustration when attempting to implement the highly-specific requirements of the ESA in the context of forestry management, and regional and programmatic approaches seem to face high levels of judicial suspicion.  That judicial suspicion may have been a factor in the court's conclusion that it had jurisdiction over this dispute in the first place.  The Federal agencies reasonably questioned the standing of the Plaintiffs to object to a series of procedural reforms in the 2008 forestry rules, noting the absence of site-specific injuries, and citing a U.S. Supreme Court decision in Summers v. Earth Island Institute, ___ U.S. ___, 129 S. Ct. 1142 (2009).  The District Court judge, however, relied on an older 9th Circuit opinion, Earth Island Institute v. Ruthenbeck, 490 F.3d 687, 694 (9th Cir. 2007), a case finding that a Plaintiff could have standing to sue because it had suffered a procedural injury.  Citing factual distinctions between the types of procedural injuries experienced in the two case, the District Court held that it "is bound to follow the Ninth Circuit’s decision in Citizens I unless Summers is clearly irreconcilable with that decision."  But in effect, the District Court concluded that the U.S. Supreme Court was not specific enough in the Summers case to preclude jurisdiction in the case before it: "It is true that the Summers Court’s discussion of procedural injury could be interpreted as prohibiting a challenge based on such an injury unless the plaintiff has concrete plans to visit a specific site that faces the threat of imminent harm as a direct result of the  regulation tainted by procedural defects. However, it is not clear that the Supreme Court intended for such a rule to apply when, as here, the procedural injury in question will never be directly linked to a site-specific project."  

SEE ALSO, press release, AP wire story from Google, and New York Times.

10th Circuit finds ESA challenge to BLM project moot because of reintroduction of Aplomado falcons in New Mexico


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State of New Mexico v. Bureau of Land Management, 565 F.3d 683 (10th Cir., April 28, 2009).  

SUMMARY: The Bureau of Land Management argues that the U.S. Fish & Wildlife Service's summer 2006 decision to reintroduce the Aplomado Falcon into the plan area moots a challenge under the ESA.  The 10th Circuit agreed and vacated the portion of the district court's order addressing this issue.

BACKGROUND: State of New Mexico and a coalition of environmental organizations brought actions challenging the procedures by which Bureau of Land Management (BLM) adopted a Resource Management Plan Amendment (RMPA) opening publicly-owned desert grassland to oil and gas development. They challenged BLM's decision not to consult with the Fish and Wildlife Service ("FWS") under the Endangered Species Act ("ESA") regarding possible impacts of the planned development on the Northern Aplomado Falcon.  The lower court held that BLM violated NEPA when it failed to conduct a site-specific environmental analysis of the likely impacts of leasing the Parcel and ordered BLM to prepare such an analysis, and Plaintiffs appealed other issues, including the ESA claims.  However, in summer 2006, FWS issued a formal ruling in which it decided to reintroducethe Falcons into New Mexico and Arizona. See Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42298 (July 26, 2006).

Within Sierra and Otero counties in southern New Mexico lie the northern reaches of the richly biodiverse Chihuahuan Desert. Among the several habitats comprising this desert ecosystem is the Chihuahuan Desert grassland, much of which has depleted to scrubland over the past century and a half. A New Mexico State University biology professor identifies this grassland as the most endangered ecosystem type in the United States. The Otero Mesa, which BLM seeks to open to oil and gas development upon conclusion of the planning process that is the subject of this litigation, is home to the endangered Northern Aplomado Falcon, along with a host of other threatened, endangered, and rare species. Lying beneath it is the Salt Basin Aquifer, which contains an estimated 15 million acre-feet of untapped potable water. Recognizing the importance of this valuable resource, the state of New Mexico and many citizens and environmental groups have sought to prevent development.  Photo of aplomado falcon in Chihuahuan desert by Kent Winchester from The Fat Finch Bird Brain Blog.

EXCERPT: New Mexico Wilderness Association (NWMA) argues that BLM failed to comply with § 7(a)(2) of the ESA, which requires all federal agencies to formally consult with the federal wildlife agencies to "insure that any gency actionis not  likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2) …  At the time of BLM's issuance of the Final EIS, the Falcon was listed as an endangered species, to which § 7(a)(2) applied. See Determination of Northern Aplomado Falcon to Be an Endangered Species, 51 Fed.Reg. at 6686-88; see also 16 U.S.C. § 1532(6) (defining the term "endangered species"), § 1533(a) (empowering the Secretary of the Interior to "determine whether any species is an endangered species"). Since the promulgation of the reintroduction rule, the Falcon population in the plan area falls under § 10(j) of the ESA, applicable to populations which are artificially introduced into an area outside the naturally existing range of a species. These populations are classified as "experimental." 16 U.S.C. § 1539(j); Establishment of Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42298. The ESA provides that nonessential experimental populations outside the National Park and National Wildlife Refuge system are treated as "proposed to be listed" rather than endangered or threatened. § 1539(j)(2)(C); 50 C.F.R. § 17.83(a). As discussed, the § 7(a)(2) formal consultation process applies only to species listed as threatened or endangered and not to species that are merely proposed for listing….

In order for the federal courts to exercise jurisdiction, Article III of the Constitution requires that the controversy between the parties remain live throughout all stages of litigation. United States v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir.2002). "A federal court has no power to give opinions upon moot questions or declare principles of law which cannot affect the matter in issue in the case before it." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997)...

The presence of these birds makes it a practical impossibility for FWS to reverse reintroduction because an actual experimental population of Falcons now exists in the area at issue. Thus, FWS cannot voluntarily reclassify the Falcon population in the area as "endangered" and thus revive plaintiffs' ESA challenge. We have before us an example of the rare case where it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693.

Accordingly, NMWA's ESA challenge to the consultation process between BLM and FWS regarding the Northern Aplomado Falcon is moot.

KEITHINKING: Although BLM won the battle over the ESA issue, it lost the case, and the 10th Circuit invalidated the NEPA analysis.  P.S.  Sorry, don't know why it took me so long to post this one.  

Ninth Circuit rejects FWS decision not to list the flat-tailed horned lizard


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Tucson Herpetological Society v. Salazar, No. 07-16641, D.C. No. CV 04-0075 NVW (9th Cir. May 18, 2009)

INTRO: Conservation organizations and individual biologists (collectively “Plaintiffs”) contend that the Secretary of the Interior’s (the “Secretary”) decision to withdraw a rule proposing that the flat-tailed horned lizard (the “lizard”) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (“ESA” or the “Act”), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. 706. They appeal from the district court’s order granting summary judgment in favor of the Secretary.  We reverse in part and remand.

The flat-tailed horned lizard is “a small, cryptically colored iguanid . . . that is restricted to flats and valleys of the western Sonoran desert.” 58 Fed. Reg. 62,624, 62,625 (Nov. 29, 1993). Its natural habitat stretches across parts of southern California, southwestern Arizona, and northern Mexico.  Agricultural and urban development have resulted in fragmentation of the lizard’s remaining habitat. Fragmentation creates isolated subpopulations that, because of their reduced size, have an increased probability of extinction.  Photo from the Arizona FWS Ecological Field Services Office.

FACTUAL AND PROCEDURAL BACKGROUND: The Secretary first proposed listing the lizard as threatened in 1993, citing documented and anticipated population declines.  For the next 16 years, the species has been the subject of repeated rulemaking efforts, including a 1997, 2003 and 2006 withdrawal of the listing, and judicial review, including cases in 1997, 2003, 2005, and 2007.  In its rulemaking efforts, FWS stated that it relied on population studies to conclude that the lizard “is persisting in the vast majority of its range.” further reporting that “information concerning population dynamics of flat-tailed horned lizard populations is limited and inconclusive.”

EXCERPT: If the science on population size and trends is underdeveloped and unclear, the Secretary cannot reasonably infer that the absence of evidence of population decline equates to evidence of persistence. The absence of conclusive evidence of persistence, standing alone, without persuasive evidence of widespread decline, may not be enough to establish that the Secretary must list the lizard as threatened or endangered. See Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 21-22 (D.D.C. 2001) (holding that the ESA does not require listing “simply because the agency is unable to rule out factors that could contribute to a population decline”); cf. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that when examining decisions made under conditions of scientific uncertainty “a reviewing court must generally be at its most deferential”). But this is a different case. The Secretary affirmatively relies on ambiguous studies as evidence of persistence (i.e., stable and viable populations), and in turn argues that this “evidence” of persistence satisfies Defenders’ mandate and proves that the lizard’s lost range is insignificant for purposes of the ESA. This conclusion is unreasonable. The studies do not lead to the conclusion that the lizard persists in a substantial portion of its range, and therefore cannot support the Secretary’s conclusion.  The Secretary’s erroneous reliance on lizard persistence, however, does not end our inquiry...

We thus must determine whether the Secretary’s stated reasons — after setting aside the erroneous persistence finding — would have persuaded him that the lizard’s lost historical range is not significant. The Secretary’s conclusion that the lizard’s lost range holds no critical genetic value for the species finds some support in the record, as does his determination that much of the lizard’s lost historical range was converted to other uses decades ago and is thus not recoverable. Neither reason is entirely dependent on lizard persistence. Nonetheless, the 2006 withdrawal repeatedly refers to lizard persistence as persuasive evidence that the species’ lost historical range is not significant. The Secretary offers persistence as both an independent, and indeed primary, basis for
discounting the importance of lost range, and as support for several other key conclusions. Because a reliance on the lizard’s persistence throughout most of its current range cuts to “the heart of the agency’s analysis,” Bondholders Comm., 289 F. Supp. at 440, we cannot readily say that the erroneous finding clearly had no bearing on the Secretary’s ultimate decision to withdraw the proposed listing. On remand, the Secretary may be persuaded that, absent reliable evidence of population persistence, the lizard’s lost historical range is indeed significant.

KEITHINKING: The FWS decision not to list the species certainly had flaws, including an absence of information, and flawed survey data, this opinion gives FWS no deference at all.  Indeed, the opinion noted that entirely new counting methods are now in place, and that FWS did have some evidentiary support for its decision.  But the Ninth Circuit disregarded the expertise of FWS, and reversed anyway.  In the Ninth Circuit, it sometimes seems that the precautionary principle is the governing philosophy.  While appropriate, perhaps, for biologists and policy makers, when this approach is embraced by jurists, it leads to ugly charges of judicial activism, as expressed in the dissent by Judge Noonan, who took the rest of the the panel to task:

     The legal system does not confide the definitive judgment to the agency entrusted with enforcement of the law but subjects that judgment first to the challenges of the nongovernmental organizations and then to the supervision of judges who are not expert in the scientific matters at stake and not familiar with the species whose survival is at stake. As if this interplay of governmental and private groups did not create room for tension, misunderstandings, and passionate disagreement, the problems in this case have been exacerbated by the simple absence of information.
     How many flattailed horned lizards are there? No one knows the answer to that question. Nor does anyone know how many lizards disappeared when portions of their range disappeared. It is supposed that a diminution in range correlates with a diminution in lizards. This hypothesis is plausible. It has not been shown to be probable. Yet the case turns on what measures are necessary to keep this unknown population in existence. The court concludes that the Secretary erred in finding that the lizard has not lost a significant portions of its range. The old method of counting lizards is  out. A new method has not been tried very much. It’s anybody’s guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary’s conclusion impacted by over-reliance on fragmenting evidence of the lizard’s persistence; so the court decides to give the Secretary another crack at the problem. If the Secretary does not know what the lizard population was to begin with, or what it was in 1993, or what it is now in May 2009, how will he know if it is increasing, staying the same, or declining?
     A style of judging, familiar to readers of the old English reports, characterizes the judge as dubitante. That is probably the most accurate term for me, which leads me to concur in the majority opinion insofar as it rejects the contentions of the Tucson Herpetological Society and to dissent from the remand whose command to the Secretary of the Interior is, Guess again.

Court of International Trade says no to jurisdiction over salmon dispute, but notes ability to hear future cases


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Salmon Spawning and Recovery Alliance v. U.S., No. 06-00191, Slip Op. 09-40 (C.I.T., May 13, 2009)(Judith M. Barzilay, Judge)

     SUMMARY: The action filed by Plaintiffs Salmon Spawning & Recovery Alliance et. al. against Defendant United States appears anew before the court on remand from the Federal Circuit. Specifically, the mandate directs the court to determine whether (1) a claim made pursuant only to Section 7(a)(2) of the Endangered Species Act (“ESA”) falls within the exclusive jurisdiction of the U.S. Court of International Trade (“CIT”) under 28 U.S.C. 1581(i)(3) or 1581(i)(4); and (2) the CIT’s broad residual jurisdiction encompassed in 1581(i) conflicts with Section 11 of the ESA...  the court finds that (1) a Section 7(a)(2) claim, on its own, fails to invoke this Court’s subject matter jurisdiction under 1581(i) and that (2) the citizen-suit provision of the ESA, Section 11, and 1581(i) are not in conflict.  While there is no doubt that all parties involved wish for the survival of the Puget Sound, Lower Columbia River, and Snake River fall-run Chinook Salmon, this Court is not the appropriate venue to address Plaintiffs’ complaint as it lacks subject matter jurisdiction over a stand-alone Section 7(a)(2) claim under both 1581(i)(3) and 1581(i)(4).

The United States Court of International Trade is located in the Federal Plaza of downtown Manhattan, near the Brooklyn Bridge-City Hall subway station.

     FACTUAL BACKGROUND: Twenty-six populations of West Coast salmon and steelhead are listed by the National Marine Fisheries Service as threatened or endangered under the ESA. 50 C.F.R. 223.102, 224.101 (listing threatened and endangered salmon species, respectively). Protection is also afforded to certain hatchery-raised salmon. 223.203(a). Customs has authored certain regulations that prohibit the importation of protected salmon. 19 C.F.R. 12.26(g)(1). Despite these vigilant efforts, however, when some of the threatened or endangered salmon species swim north from the United States into Canadian waters, many are killed before they can return to U.S. rivers to spawn. Some of these dead salmon are ultimately imported into the United States by commercial shippers and American sport fishermen, arguably in violation of Section 9 of the ESA.  

     PROCEDURAL HISTORY: In November 2005, Plaintiffs filed this action in the U.S. District Court for the Western District of Washington.  That Court decided to transfer the action to the CIT.  In March 2007, the CIT dismissed Plaintiffs’ claims for lack of subject matter jurisdiction.  The Federal Circuit affirmed the court’s dismissal of Plaintiffs’ Section 9 claim, specifically noting that an agency’s decision to implement or enforce certain provisions of the ESA are not reviewable under either the APA or Section 11 of the ESA. (See prior ESA blawg.)

     OPINION RE: Sec. 1581 JURISDICTION: Importantly, the Court will not have jurisdiction under 1581(i)(3) in the absence of a law providing for an embargo. See Friedman v. Kantor, 21 CIT 901, 904, 977 F. Supp. 1242, 1246 (1997). “Merely because the action involves issues of international trade” does not mean that jurisdiction is available under 1581(i)(3). Friedman, 21 CIT at 904, 977 F. Supp. at 1246. An embargo or other quantitative restrictions falling under 1581(i)(3) is defined as “a governmentally imposed quantitative restriction – of zero – on the importation of merchandise.” K Mart Corp., 485 U.S. at 185. That restriction must be more than a mere “condition of importation.” Id. at 189. Additionally, “an importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might . . . enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right.” Id. at 185.

     Section 7(a)(2), plainly sets forth the necessary communications that must take place between various executive agencies. 1536(a)(2). “These consultation requirements of Section 7 are designed to make certain that every federal agency takes whatever actions are necessary to ensure the survival of each endangered and threatened species.” Salmon III, 550 F.3d at 1132 (quotations & citations omitted). At most, Section 7(a)(2), in certain settings, may involve issues of international trade. In those circumstances, the interagency consultations are one step removed from any final agency action imposing a condition of importation. That a law in limited circumstances touches upon international trade law issues and concerns conditions of importation is insufficient to invoke the Court’s jurisdiction.

     OPINION RE: ESA Sec. 11 CONFLICTS:  The seeming conflict between the Section 11 and   1581(i) is nothing more than a paper tiger, and the concinnity is apparent when the two are read together. The ESA allows for courts other than the district courts to entertain claims made pursuant to the ESA. Section 11 states that courts enumerated in 28 U.S.C. 460 shall also have jurisdiction over any actions arising under the ESA. 1540(c). Section 460 of Title 28 of the United States Code notes that judicial authority extends to “each court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, and to the judges thereof.” 28 U.S.C.   460(a). The CIT is such a court, possessing “all the powers in law and equity of . . . a district court of the United States.” 28 U.S.C. 1585. Thus, the CIT, as a court vested with the power of a district court, fits within the definition of courts enumerated by Section 460 as holding jurisdiction over claims made pursuant to the ESA.  Moreover, no conflict arises here because   1581(i) is the more specific and later enacted statute, and as such takes priority over the general grant of jurisdiction to the distriction courts in Section 11. Two important tools of statutory construction are that “the specific governs the general,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (citation omitted), and that Congress is presumed to legislate with knowledge of then existing law.

Kentucky federal court rejects need for Forest Service to reinitiate consultation on Indiana Bats, notes absence of White Nose Syndrome


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Heartwood, Inc. v. Agpaoa et. al., Civ. No.  07-114-KSF, 2009 U.S. Dist. LEXIS 36667  (E.D. Kent. April 27, 2009)
 BACKGROUND: The denial of a preliminary injunction in this case was previously discussed in ESA blawg (May 2008).  Pursuant to the Endangered Species Act, the issue was whether the U.S. Fish & Wildlife Service needed to reinitiate consultation on a proposed U.S. Forest Service Project, the The Ice Storm Recovery Project.  The project involves: (1) cutting of severely damaged and downed trees on 12, 859 acres, of which one-third, or 4,845 acres, would involve removal of the cut trees in commercial timber harvest; (2) control of non-native invasive plants on 1,000 acres by digging up and removing them and by selectively applying herbicides; and (3) restoration of 35 woodland ponds that had served as bat habitat before the storm. According to the Forest Service, the project will facilitate regrowth of trees that were not damaged in the storm as well as growth of new trees, and is an important measure to protect damaged forest stands from gypsy moth defoliation.  FWS issued a biological opinion in December 2005 and it determined that implementation of the Ice Storm Recovery Project was not likely to jeopardize the continued existence of the Indiana bat.  Specifically, FWS concluded that the project would be conducted in a manner such that "suitable roosting habitat is retained within the salvage/sanitation project areas and is generally not considered to be a limiting factor for the Indiana Bat on the DBNF." FWS further noted that "the Morehead Ranger District has no known occurrence of taking an Indiana bat during tree felling or associated operations."  Heartwood, however, argued that an outbreak of White Nose Syndrome (WNS) among Indiana Bat populations necessitated a new biological opinion.

OPINION RE: ESA:  In this case, Forest Service has determined that the new information - an outbreak of WNS in the Northeast and other states - does not trigger reinitiation of consultation with FWS. The administrative record reveals that the Forest Service, FWS, and other agencies are currently monitoring the impact of WNS on bat species, including the Indiana bat.  Nothing in the record before the Forest Service, however, reveals any impact associated with WNS within the Ice Storm Recovery Project. In fact, the USFS reports a range wide increase of 10.0% in Indiana bat populations from 2005 to 2007. Survey data from the Kentucky Division of Fish and Wildlife revealed no signs of WNS in 13,600 bats.  Moreover, the Forest Service's latest field survey in and around the project area found no Indiana bats...  Thus, while WNS continues to affect other national forests, there is no new information which shows any impacts on the Indiana bat ... that are greater than previously considered by the Forest Service. As the Ninth Circuit has stated, "we do not hold that every modification of or uncertainty in a complex and lengthy project requires the agency to stop and reinitiate consultation." Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987). Rather, the Ninth Circuit concluded that reinitiation was required in that case only (1) because the expert agency, FWS, had requested reinitiation, and (2) because a land transfer upon which the biological opinion had relied had fallen apart...   In addition, there is nothing in the record showing that the FWS has requested reinitiation or otherwise disagrees with the Forest Service's determination that the new information does not trigger reinitiation. Given its independent duty to request reinitiation when warranted, the FWS presumably will speak up if conditions requiring reinitiation arise. Accordingly, the Court concludes that the Forest Service's explanation provides a rational basis for its decision not to reinitiate formal consultation and is neither arbitrary nor capricious.

Photo above of little brown bats with White Nose Syndrome, by Nancy Heaslip of the New York Dept. of Environmental Conservation, available from FWS Northeast Region.  In contrast, photo below by Merlin Tuttle of Indiana bats in Kentucky's Bat Cave State Nature Preserve.  

Ninth Circuit upholds FWS listing of Central California tiger salamander (in unpublished opinion)


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Home Builders Ass'n of Northern California v. U.S. Fish & Wildlife Service, No. 07-17147 (9th Cir. April 10, 2009) (Not for publication...)

OPINION: Home Builders Association of Northern California, California Building Industry Association, and Building Industry Legal Defense Foundation (collectively "Home Builders") appeal the district court's order granting the United States Fish and Wildlife Service's ("FWS") and the Center for Biological Diversity's ("the Center") joint motion for summary judgment on the Home Builders's action under the Administrative Procedure Act ("APA") against the FWS. The Home Builders's action challenged the FWS's listing of the Central California tiger salamander as "threatened" under the Endangered Species Act ("ESA").

The FWS adequately established a rational connection between the facts it found and its listing decision. The FWS made express findings based on the best available scientific data about future habitat loss and concluded, in its scientific judgment, that this future habitat loss made it likely that the Central California tiger salamander will become in danger of extinction throughout all or a significant portion of its range in the foreseeable future. The FWS is not required to state a threshold level of habitat loss that is necessary to find a species is threatened. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1081-82 (9th Cir.2006). N1Thus, the district court did not err by granting the FWS's and Center's motion for summary judgment.

Photo of California Tiger Salamander by C. Johnson from FWS.

Federal Court in Utah upholds incidental take of golf course prairie dog population


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Wildearth Guardians v. U.S. Fish & Wildlife Service, No. 2:07-cv-00837 CW (D. Utah, April 22, 2009)

INTRODUCTION.  In this action, Plaintiffs challenge two permits issued by the United States Fish and Wildlife Service under the Endangered Species Act ("ESA"). The permits authorize Cedar City, Utah and the Paiute Indian Tribe to live trap and relocate Utah Prairie Dogs that are damaging the Cedar City municipal golf course and adjacent lands owned by the Paiute Tribe...  This matter is before the court to review the administrative action of the Service. WildEarth Guardians seeks revocation of the permits on the basis that (1) the Service failed to include a numeric take limit on the permits themselves, and (2) the Service's actions were arbitrary and capricious when it found that the Habitat Conservation Plan ("HCP") sufficiently minimizes and mitigates the take's impact.


FACTUAL BACKGROUND.  Unfortunately, when Utah Prairie Dogs (photo above by Jess Alford from WildEarth Guardians) have been relocated from private land to public land, historically only about ten percent have survived.  Through the translocation program, however, the number of "prairie dog colonies on public land has increased" over the years...  Iron County, Utah has an HCP, which allows the permanent or non-permanent take of a certain number of Utah Prairie Dogs per year. The Golf Course was permitted to use the nonpermanent take provisions of the Iron County HCP in an attempt to control the prairie dog population on the Golf Course...  The Golf Course colony is unnaturally large due to artificial conditions, such as an "unlimited food supply and lack of predators." Because of development around the Golf Course, the colony is "fragmented and becoming more isolated."  The colony therefore does not contribute to genetic mixing of the species... The Service determined that the proposed HCP was "not likely to jeopardize the continued existence of the Utah Prairie Dog, and is not likely to destroy or adversely modify designated critical habitat."  In making this determination, the Service considered the mitigation factors proposed by the applicants. It particular, Iron County purchased "a 303 acre parcel of land surrounded by BLM lands ."  It then agreed, upon issuance of the permits, to put this land into a conservation easement for purposes of preserving a permanent prairie dog habitat.  The land is known as Wild Pea Hollow and it is adjacent to other public lands that support a prairie dog colony.  This land provides the potential for genetic mixing between colonies.

OPINION AND ANALYSIS RE: INCIDENTAL TAKE STATEMENT:  WildEarth Guardians asserts the take permits must be vacated because the Service failed to include a take limit on the permits... (But) It is well established that population counts for Utah Prairie Dogs are generally unreliable and experience confirms that such counts at the Golf Course and Paiute lands have been unreliable. Thus, where the intent was to relocate the entire population, including a specific take limit would have added a complication and unnecessary restriction should the site population exceed the take limit. The Service did provide an estimate in the incidental take statement on the number of prairie dogs to be moved. That is all that could reasonably be required given the uncertainty of the population count and the objective to move the entire colony. While under other circumstances it may be appropriate to require a take limit on a permit, the court holds that under the circumstances of this case, the Service was not obligated to include a take amount on the permits.

OPINION AND ANALYSIS RE: MITIGATION AND MINIMIZATION: WildEarth Guardians further contends that the HCP does not sufficiently minimize or mitigate the impact on the Utah Prairie Dogs. As stated above, the Service must find that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of he taking."  What constitutes the "maximum extent practicable" is not defined in statute. The Service, however, has interpreted the statute to mean mitigation that "is rationally related to the level of take under the plan," and courts have agreed with this interpretation. In conjunction with this finding, the Service also must determine that the take "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."  ... Wild Pea Hollow is a natural habitat that provides possible connectivity between prairie dog colonies and the potential for genetic mixing. It also fulfills two main objectives under the Recovery Plan, namely, establishing prairie dogs on public lands and restoring suitable habitat on public lands. Based on these considerations, the Service concluded the HCP adequately minimized and mitigated the impact on the prairie dogs. The court rejected WildEarth Guardians claims: (1) rejecting claims regarding a Failure to Use Buried Fences, the Court held that "the Service articulated a rational connection between the facts found and the decision made." (2) Rejecting claims regarding an alleged Failure to Establish a Viable Habitat Before Translocation, the Court held that the Service did not make a clear error in judgment."  Finally, (3) rejecting claims regarding Inadequate Translocation Procedures, the Court held that the permit conditions were adequate, and "the Service's decision was not arbitrary and capricious."

KEITHINKING: Because they authorize the take -- even death -- of endangered and threatened species, HCPs will always be controversial.  This case reflects the traditional conflict between species habitat and human land use, but in the less traditional (but increasingly common!) context of public recreation and a golf course.  As usual, the issue is fact specific, and the nature of the mitigation in this case, specifically, the creation of conservation lands and habitat adjacent to other public lands that already support a prairie dog colony, and that allow potential for genetic mixing between colonies, is especially significant.  See news stories, including the Deseret News,  

11th Circuit largely deferential to FWS biological opinion in Everglades, but rejects habitat-based approach to incidental take statements


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Miccosukee Tribe of Indians v. USA, No. 08-10799 (11th Cir. May 5, 2009)

REGIONAL CONTEXT: In 1948, the U.S. Army Corps of Engineers undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams…. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits the Cape Sable Seaside Sparrow against the Everglades Snail Kite, a hawk.  Kites prefer steady and moderate to low water levels above the S-12 gates, while the sparrows prefer low water below the S-12 gates. Both birds are protected by the 1973 Endangered Species Act, 16 U.S.C. §1531 et seq. The Act outlaws the “take” of any endangered species.

STATUTORY BACKGROUND: The Endangered Species Act, Section 7(a)(2) requires every federal agency to ensure that its actions will not jeopardize the continued existence of any endangered species. 16 U.S.C. §1536(a)(2). To coordinate their efforts to comply with section 7(a)(2), the agencies involved, here the Army Corps of Engineers and the Fish & Wildlife Service, consult with each other…  If the proposed action would not jeopardize the species but still might result in incidental harm to it, the Service attaches to the biological opinion an incidental take statement establishing the terms and conditions under which the incidental take may occur. 50 C.F.R. § 402.14(i).

KEY FACTUAL BACKGROUND: In the early 1980s Congress authorized a restructuring of the Corps’ water management system in order to restore wildlife in the Everglades. Someone decided that the best way to figure out how to correct the unplanned environmental consequences was to undertake a series of trial-and-error tests… In 1995, under “Test 7,” the Corps began releasing large amounts of water through the S-12 gates…  In 1998, the Corps created an “Interim Structural and Operational Plan” that altered Test 7 by closing the gates during sparrow breeding season…  Between 1999 and 2002, the Corps and the Service consulted and developed the “Interim Operational Plan for the Protection of the Cape Sable Seaside Sparrow” (Interim Plan). During the same period, a regional drought cut the number of kites statewide in half, from 3,400 to 1,700 birds…  In 2002, the Corps then implemented the Interim Plan, which changed the S-12 water release schedule… Water began to back up north of the gates—in the kites’ critical habitat and on Miccosukee tribal land. Birds cannot sue, but a tribe can and this one did.  In November 2005 the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging its 2002 approval of the Interim Plan.  In November 2006 the Service issued another biological opinion… but it still found that the kite would not be jeopardized by allowing the Interim Plan to continue until 2010 or 2011 for the good of the sparrow.

The Cape Sable seaside sparrow (picture above by  Lori Oberhofer from Everglades National Park) lives primarily in and around Everglades National Park. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels, needing favorable breeding conditions without long periods of interruption.  The Everglade Snail Kite (picture below from South Florida Water Management District), a type of hawk, lives in the marshes of Florida and Cuba.  Kites feed primarily on apple snails, which require periods of inundation to reproduce, but the birds nest in woody vegetation that dies off if that inundation lasts too long or if the water level goes too high. It is, in that respect, a Goldilocks kind of bird.  

KEY RULINGS:  The Miccosukee Tribe launches a three-front assault on the 2006 biological opinion and the incidental take statement. The Tribe’s first contention is that the 2006 biological opinion is ‘not in accordance with law’ because it fails to follow proper procedures… The Tribe’s second contention is that the 2006 biological opinion is arbitrary and capricious because it arrives at conclusions that are counter to the scientific data in the record or are so implausible that they go beyond an acceptable difference of expert opinion... The tribe’s third contention is that the incidental take statement is deficient because it improperly quantifies incidental take in terms of habitat markers and fails to provide a meaningful trigger for re-consultation.

     HOLDING RE: IMPROPER PROCEDURES: The Tribe argues that the Service ignored a number of studies and scientists’ statements that show “alarming” and dramatic declines in the kite population. But the Tribe’s arguments do not hold water… While the 2006 biological opinion’s predictions do differ from those of some scientists who have studied the kite, the basic data is not in dispute and was taken into account by the Service when it drafted the opinion. That is all the Endangered Species Act requires the Service to do with the “best scientific and commercial data available.” 16 U.S.C. §1536(a)(2); Marsh, 490 U.S. at 377–78, 109 S. Ct. at 1861.
     The Tribe also contends that the legislative history of the Endangered Species Act demonstrates that Congress generally wished to “give the benefit of the doubt to the species.” H.R. Rep. No. 96-697, at 12 (1979) (Conf. Rep.), as reprinted in 1979 U.S.C.C.A.N. 2572, 2576. The Tribe argues that those nine words from the Joint Explanatory Statement of the Conference Committee, quoted in the House Conference Report, demand a presumption in favor of the species if the evidence is balanced between likely jeopardy and no jeopardy.  To begin with, we are reluctant to read into the words that Congress has enacted as law, words that it did not enact as law. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006)… Putting that reluctance aside for the time being, the context of the benefit of the doubt language in the conference report suggests only that agencies, including the Service, cannot hide behind uncertain scientific data to shirk their duties under the Act…
     Because the Tribe has not demonstrated that the Service failed to consider any major scientific work or any material fact when it rendered the 2006 biological opinion, we reject its procedural attack on the 2006 biological opinion.

     HOLDING RE: BIOP CONCLUSIONS:  The 2006 biological opinion concedes that the Interim Plan will continue to harm the kite habitat by flooding it…  The biological opinion acknowledges that the Interim Plan may also cause water levels to decline rapidly in kite habitat during the spring, threatening its nests.  However, the opinion concludes that “Degradation of designated critical habitat within WCA-3A is expected to continue under he Interim Plan but this is reversible with improved hydrologic conditions. No permanent loss of critical habitat is expected.”  …Evidently the Service is under the impression that flooding twenty percent of the kites’ critical habitat to a depth that kills the woody vegetation the bird likes to perch on, that drives off the apple snails it likes to eat, and that reduces its nesting success is not “adverse modification” of critical habitat within the meaning of the Act. The Service asserts that “no permanent loss of critical habitat is expected.” (emphasis added) But the Service does not cite, and we are unable to find, any decision holding that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification.” …  Whether short-term impacts on critical habitat amount to “adverse modification” depends to a large extent on the life cycle of the species. Some species may be eradicated if their habitats are negatively affected even for a relatively short time. Restoration of a habitat cannot resurrect the dead.
     Nevertheless… we limit our conclusion, of course, to the facts of this case. Those facts involve a long-term program for restoring the Everglades’ natural flow in a way that would cause temporary flooding of twenty percent of the critical habitat of a long-lived species of kite with a high adult survival rate and a wide range. The flooding is being done in an effort to avoid the extinction of an endangered sparrow in the area. The aim is to eventually restore the natural flow of the Everglades, a restoration which hopefully will benefit both endangered birds. In light of these facts, the Service’s determination in its 2006 biological opinion that the action will not jeopardize the kite or adversely modify its habitat within the meaning of the Endangered Species Act is not arbitrary and capricious.

     HOLDING RE: INCIDENTAL TAKE STATEMENT: The Tribe’s last contention is that the Fish & Wildlife Service’s incidental take statement is defective because it fails to specify, in numbers of birds, how much “take” is permissible. An incidental take statement may lawfully authorize harm to an endangered species as long as the statement sets a ‘trigger’ for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species. 50 C.F.R. § 402.14(i)(4)…  The Service’s “Final ESA Section 7 Consultation Handbook,” however, does provide guidance about how impact on the species may be measured… and it allows the Service to use, without specific justification, habitat impact measurements (also called “habitat markers”) to express take instead of using actual head counts of members of the species.  Legislative history recently led the Ninth Circuit to invalidate an incidental take statement. See Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1037 (9th Cir. 2007) (“Congress has clearly declared a preference for expressing take in numerical form, and an Incidental Take Statement that utilizes a surrogate easureinstead of a numerical cap on take must explain why it was impracticable to express a numerical measure of take.”)… We apply instead the rule that specific population data is required unless it is impractical. See Allen, 476 F.3d at 1037–38. The rule makes sense. The goal of the Endangered Species Act is to protect populations of species, and using habitat markers when population data is available is like turning on the weather channel to see if it is raining instead of looking out a window.
     We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced.

KEITHINKING: Other noteworthy aspects of the decision include the distinguishing of Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)(suggesting that Congress intended “to give the benefit of the doubt to the species.”) by noting that Conner “does not suggest that there is any presumption in favor of the species if, as in this case, there is abundant data,” and the distinguishing of Rock Creek Alliance v. United States Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1008 (D. Mont. 2005) (“tie in the evidence should go to the species.”) as “based in part on significant scientific blunders by the Service.”  The 11th Circuit also showed judicial restraint, accepting the biological opinion’s conclusions regarding whether the agency actions might jeopardize snail kite populations.  However, the 11th Circuit was not deferential to an ESA policy handbook, and after a discussion of Chevron, Christensen, Mead, and Skidmore, refused to grant the Service's interpretation of the ESA (as expressed in its policy manual) Chevron deference, reaching a different conclusion based on the statute.  Specifically, the Court held, based on Chevron step one, that Congress had clearly spoken, giving different instructions as to the requirements of an incidental take statement.

ESA in the Courts: jurisdiction and mootness in U.S. District Courts for Arizona, D.C., and Northern California


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Defenders of Wildlife, et al., v. Tuggle, CV 08-280 TUC DCB (Lead),,CV 08-820 PHX DCB (Consolidated), 2009 U.S. Dist. LEXIS 30121 (D.Az., April 1, 2009)

SUMMARY: Plaintiffs challenged U.S. Fish and Wildlife Service procedures for wolf control actions taken as part of the administration of the Mexican wolf reintroduction project within the Blue Range Recovery Area. Granting and denying parts of the U.S. Department of Justice's motion to dismiss, the Court held that (1) Standard Operating Procedure 13 represented final agency action, and (2) discussed how plaintiffs claims fell within the Courts' jurisdiction, either through (a) the citizen suit provision of the Endangered Species Act, or (b) the Federal Administrative Procedure Act.

EXCERPT: The Court finds that the 2003 Memorandum of Understanding and SOP 13 mark the consummation of the agency's decisionmaking process in respect to wolf control measures, which determines rights and obligations as follows: 1) It establishes specific control measure protocols and specifies when and why they are to be used. 2) SOP 13's express purpose is to set clear limitations or "outer boundaries" on discretionary program management. 3) It establishes the responsibilities of and relationships between the respective Adaptive Management Oversight Committee participants in a way that substantively changes the direct and discretionary responsibilities once held by USFWS under the Interagency Management Plan...  The Court finds that unlike a general policy statement, SOP 13 was intended to ensure the public as to how wolf removal decisions would be made and to limit USFWS discretion and authority to change its position regarding wolf removal. SOP 13 was adopted to supercede the IMP, which this Court finds was an interpretive rule because the Final Rule called for USFWS to adopt such a rule when it called for detailed wolf management procedures and protocols, including control measures to be spelled out in a Service-approved management plan. The IMP, and subsequently the MOU and SOP 13, was intended to add considerable detail to 50 C.F.R. § 17.48(k) to flush out the specifics of wolf removal actions. The IMP was binding until revised, which admittedly occurred when superceded by SOP 13, making SOP 13 equally binding until revised.

On January 12, 1998, USFWS issued a Final Rule that it would reintroduce the endangered Mexican wolf into the Apache and Gila National Forests in east-central Arizona and west-central New Mexico.  Later in 1998, the Service approved the Mexican Wolf Interagency Management Plan (IMP), in cooperation with Arizona Game and Fish (AGFD), New Mexico Department of Fish and Game (NMFG), Forest Service (USFS), several counties, and the San Carlos and White Mountain Apache Tribes (WMAT). The IMP "outlines the interagency management activities needed to reintroduce Mexican wolves (Canis lupus bailey) in the Blue Range Wolf Recovery Area.  Revisions to that IMP were at issue in this case.  Photo from Arizona Game and Fish Department


The Wilderness Society v. Salazar, Civil Action No. 98-2395 (RWR), 2009 U.S. Dist. LEXIS 24821 (D.D.C., March 25, 2009)

SUMMARY OF ORDER: The Wilderness Society and seven other organizations filed this lawsuit against the Secretary of the Interior, the Bureau of Land Management ("BLM"), and the Fish and Wildlife Service ("FWS") challenging the decision by the Secretary to conduct oil and gas leasing in an area of the National Petroleum Reserve-Alaska ("NPR-A"). Plaintiffs filed a motion for partial summary judgment on Counts II through IV, VII and VIII of their first amended complaint, arguing that the Environmental Impact Statement violates the National Environmental Policy Act of 1970 ("NEPA"), 42 U.S.C. § 4331, et seq., Executive Order ("EO") 11,990, and the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531, et seq. Defendants filed a cross-motion for summary judgment on these counts. Plaintiffs later filed a motion to dismiss without prejudice for lack of jurisdiction Count VIII involving the ESA claim, which the defendants oppose. 2 Because Count VIII is moot, it will be dismissed. Because the defendants complied with NEPA and the EO, judgment will be entered for them on the remaining counts.

EXCERPT: After plaintiffs filed the motion for summary judgment, the Secretary published final rules designating critical habitat for the eider species and did not designate any critical habitat within the Reserve. Plaintiffs then filed a motion to dismiss Count VIII without prejudice, arguing that their claims are now moot and should be dismissed without prejudice...  The parties agree that plaintiffs' claim that FWS violated the ESA by failing to designate critical habitat for the spectacled eider and the Steller's eider is moot. The parties disagree as to whether that claim should be dismissed with or without prejudice. A dismissal on mootness grounds is without prejudice to future suits on the merits of the same claim. See Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir. 1979) (holding that "e dismissal without prejudice of the prior actions on grounds of mootness does not serve as a final adjudication on the merits so as to bar this action"); DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir. 1999), overruled on other grounds, Whetsel v. Network Property Services, LLC, 246 F.3d 897 (7th Cir. 2001) (stating that "dismissals based on justiciability issues should preclude only relitigation of the same justiciability issue, but not future suits based on the merits of the same claim"); McCarney v. Ford Motor Co., 657 F.2d 230, 234 (8th Cir. 1981) (stating that a dismissal based on concepts of justiciability, which includes the questions of advisory opinions, mootness and ripeness, does not preclude a second action on the same claim if the justiciability problem can be overcome). Accordingly, the court will grant plaintiff's motion to dismiss without prejudice as moot the allegation in Count VIII that FWS violated the ESA by failing to designate critical habitat for the spectacled eider and the Steller's eider, and will deny as moot plaintiffs' and defendants' motions for summary judgment on this allegation.


Center for Biological Diversity v. Chertoff, No. C-08-2999 MMC, 2009 WL 839042, (N.D. Cal., March 30, 2009).

BACKGROUND: Plaintiff alleges defendant United States Coast Guard violated § 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2) (" § 7(a) (2)"), by failing to consult with the National Marine Fisheries Services to "ensure" that the Coast Guard's "activities under" the Ports and Waterways Safety Act ("PWSA"), 33 U.S.C. § 1221 et seq., "in the Santa Barbara Channel and other shipping lanes off the California coast .... will not jeopardize the continued existence of threatened and endangered species."...  Under the PWSA, the Coast Guard "may construct, operate, maintain, improve, or expand vessel traffic services, consisting of measures for controlling or supervising vessel traffic or for protecting navigation and the marine environment," and "may control vessel traffic in areas ... which the Secretary determines to be hazardous." See 33 U.S.C. § 1223(a)(1), (4). The Coast Guard also may designate Traffic Separation Schemes ("TSS") for vessels operating in approaches to ports. See § 1223(c)(1)...  In bringing the instant action, plaintiff "does not challenge the validity or substance of the oast Guard's 2000 TSS decisions." (See Opp'n & Reply at 3:12-13 (emphasis in original).) Rather, plaintiff's challenge is to what plaintiff asserts is "the Coast Guard's failure to comply with the ESA consultation requirements in connection with ongoing vessel management activities" (see id. at 5:14-6:2) and "ongoing traffic management actions" (see id. at 7:7-8). Defendants argue that the Court lacks jurisdiction to entertain a challenge to any such activities and actions that were not identified as violations of the ESA in plaintiff's 60-Day Notice of Intent to Sue and, further, that plaintiff has failed to identify any activity or action that constitutes "agency action" under the ESA, see § 7(a)(2), that was undertaken by the Coast Guard within the applicable limitations period.  

RULING RE: 60-DAY NOTICE: The section of the Notice titled "Violations of the ESA" fails to mention any geographic area other than the Santa Barbara Channel and focuses exclusively on the implementation of the TSS in the Santa Barbara Channel.   Accordingly, to the extent plaintiff's claims are based on violations of the ESA arising from the TSS off San Francisco or the TSS in the approaches to Los Angeles-Long Beach, the Court lacks subject matter jurisdiction.

RULING RE: TRAFFIC SEPARATION SCHEMES: It is undisputed that the Coast Guard's 2000 amendment to the Santa Barbara Channel TSS constituted "agency action" under § 7(a) (2). Unless the TSS constitutes "ongoing agency action," however, any challenge to the Coast Guard's failure to consult with NMFS in connection therewith is barred by the six-year statute of limitations provided in 28 U.S.C. § 2401(a), as the instant action was not filed until June 18, 2008.  Here, plaintiff has failed to show the Coast Guard retained discretion under the TSS and thereafter acted pursuant to such discretion...  Accordingly, plaintiff has failed to show the Coast Guard is engaged in "ongoing agency action" under the Santa Barbara Channel TSS, and, consequently, any challenge to such TSS is time-barred.

RULING RE: OTHER AGENCY ACTION:  Pointing to the Coast Guard's "broad, discretionary statutory authority to protect listed species" (see Response to OSC & Sur-Reply at 11:4-5), plaintiff argues that even if the Coast Guard had not elected to establish a TSS in the Santa Barbara Channel or elsewhere, "the agency would still have continuing ESA obligations arising out of its ongoing management responsibilities under the PWSA"...  The Court again finds plaintiff's argument unpersuasive.... Discretion, without more, is insufficient to trigger the consultation requirements of § 7(a)(2); rather, such requirements are only implicated by "affirmative actions." See Western Watersheds, 468 F.3d at 1108 (holding "section 7(a)(2) consultation stems only from 'affirmative actions' "; noting "discretion without more is not an 'action' triggering a consultation duty")


KEITHINKING: Anyone considering a career in environmental law should take heed and pay attention to their civil procedure professor in law school.  For the rest of us, there's always Erwin Chemerinsky's Treatise on Federal Jurisdiction!

With red knots on the candidate list, Third Circuit declares emergency listing dispute moot


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American Bird Conservancy v. Kempthorne, No. 07-4609 (March 11, 2009)

BACKGROUND: In July and August 2005, appellants, a number of conservation groups, petitioned the U.S. Fish and Wildlife Service (“FWS”) to list as endangered on an emergency basis the red knot, a species of migratory shorebird. The FWS declined to undertake emergency rulemaking by letter of December 22, 2005, but continued to review the petition in the context of a non-emergency.  FWS formally responded to the petition when, on September 12, 2006, it published its Candidate Notice of Review in the Federal Register. See Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 71 Fed. Reg. 53,756(Sept. 12, 2006) (to be codified at 50 C.F.R. pt. 17). The CNOR concluded that the threats, in particular the modification of habitat through harvesting of horseshoe crabs to such an extent that it puts the viability of the knot at substantial risk, are of a high magnitude, but are nonimminent because of reductions and restrictions on harvesting horseshoe crabs. Id. at 53,759. Accordingly, the FWS designated the listing of the red knot as warranted but precluded pursuant to 16 U.S.C. § 1533(b)(3)(B)(iii), and assigned the species a priority level of 6 on a scale of 1 to 12 (1 being the highest priority). Id.  Appellants persisted with their challenge to the denial of emergency rulemaking, an agency decision upheld by the District Court in New Jersey.  See ESA blawg.

EXCERPT: The mootness doctrine derives from Article III of the Constitution, which limits the “judicial Power” of the United States to the adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2; see Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007). “The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).

The only issue remaining in the complaint ... was the propriety of the FWS’s determination that an emergency listing of the red knot was not warranted. In the subsequent publication of the CNOR, however, the FWS concluded, after careful study and consideration of all possible factors, that listing of the red knot was, in fact, warranted but precluded by other listing priorities. Because appellants never sought to amend their complaint to contest in any way that conclusion, there is no issue for us to decide and no “meaningful relief” to award.  Appellants would have us reach back from the CNOR and declare the FWS’s denial of emergency rulemaking violative of the ESA based on the FWS’s consideration of what appellants allege to be improper factors. We will not do so. Instructive in this regard is Fund for Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005), in which the D.C. Circuit observed that “this sequence of events is analogous to the merger of a preliminary injunction into a permanent injunction, upon which ‘an appeal from the grant of the preliminary injunction becomes moot.’” 428 F.3d at 1064 (quoting Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999)) (second alteration in original); see also Save Our Springs Alliance v. Norton, 361 F. Supp. 2d 643, 648 (W.D. Tex. 2005).

Red knot and horseshoe crab photo by William Dalton (c) (all rights reserved) from flickr.  Mr. Dalton also publishes a webpage at  The red knot (Calidris canutus rufa) is a medium-sized shorebird that undertakes an annual 30,000-kilometer migration from its wintering grounds in Patagonia and Tierra del Fuego to its breeding grounds in the high Arctic. Red knots begin their northern migration in February, and stop over in the Delaware Bay between late April and early June, coinciding with the spawning season of horseshoe crabs. There, the birds feed on horseshoe crab eggs in order to refuel for the final leg of their journey to the Arctic.  Surveys of the Delaware Bay region during recent spring migration seasons indicate a substantial decline in the red knot population. It is believed that the reduction in numbers is in large part attributable to the overharvesting of horseshoe crabs for commercial purposes. Because of the corresponding drop in the quantity of horseshoe crab eggs, red knots have failed to attain the critical weight necessary to fly to their breeding grounds and survive an initial few days of Arctic snow cover.  See prior musing in ESA blawg and information from New Jersey Division of Fish & Wildlife and Citizens United to Protect the Maurice River

9th Circuit upholds NOAA's salmon hatchery policies in Trout Unlimited v. Lohn


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Trout Unlimited v. Lohn, No. 07-35623 (9th Circuit, Mar. 16, 2009)

BACKGROUND: We must decide whether the National Marine Fisheries Service may distinguish between natural and hatchery-spawned salmon and steelhead when determining the level of protection the fish should be afforded under the Endangered Species Act... These appeals primarily involve NMFS’s decision, in accordance with the 2005 Hatchery Listing Policy, to downlist a population of Upper Columbia River steelhead from endangered to threatened...  the Hatchery Listing Policy provides that hatchery fish that are part of the same ESU as natural fish “will be included in any listing of the Evolutionarily Significant Unit.” Id. at 37,215. In addition, the Hatchery Listing Policy requires NMFS to consider the status of the ESU as a whole... but a listing determination still places primary importance on the viability of natural, self-sustaining populations, providing that “hatchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations.” ...  Noting that hatchery fish can be both helpful and harmful to natural fish, the policy also allows NMFS to use its discretionary authority via § 4(d) regulations to provide for the take of certain hatchery fish, even if the ESU to which they belong is listed as threatened.

NOTEWORTHY EXCERPTS: We defer to the informed exercise of agency discretion, especially where that discretion is exercised in an area where the agency has special “technical expertise.” ...  We are also convinced that the Hatchery Listing Policy’s method of assessing the status of an entire ESU, and NMFS’s corresponding downlisting of the Upper Columbia River steelhead, were decisions based upon the best scientific evidence available...  Moreover, the Hatchery Listing Policy complies with the express purpose of the ESA to preserve “the ecosystems upon which endangered and threatened species depend,” id. § 1531(b), and to restore any such “species to the point at which the measures provided pursuant to this act are no longer necessary,” id. § 1532(3)...  The record shows that NMFS approached the listing decision in a thoughtful, comprehensive manner that balanced the agency’s concerns and goals. Because the downlisting occurred as a result of “substantial—though not dispositive— scientific data, and not on mere  speculation,” Greenpeace Action, 14 F.3d at 1333, we are satisfied that the downlisting was not “arbitrary and capricious.” NMFS is entitled to decide between conflicting scientific evidence. See id. (“To set aside the Service’s determination in this case would require us to decide that the views of Greenpeace’s experts have more merit than those of the Service’s experts, a position we are unqualified to take.”). It is not our role to ask whether we would have given more or less weight to different evidence, were we the agency. Assessing a species’ likelihood of extinction involves a great deal of predictive judgment. Such judgments are entitled to particularly deferential review. The Lands Council, 537 F.3d at 993.

BIOLOGY: Pacific Coast salmon are anadromous fish, meaning that they can survive both in saltwater and in freshwater. The salmon hatch out of eggs laid in freshwater rivers and streams, then migrate often hundreds of miles to the ocean, where they live for years before returning to their natal streams to spawn and to die. Steelhead, a closely related species, perform the same migration but are able to spawn multiple times. In the Pacific Northwest, anadromous salmon and steelhead populate the Columbia River and its tributaries, including the Willamette River, the Snake River, the Okanogan River, and the Yakima River.  Human development in the Pacific Northwest has long threatened many salmon and steelhead species with extinction. “forestry, agricultural, mining, and urbanization activities . . . have resulted in the loss, degradation, simplification, and fragmentation of habitat.”  ... To compensate for reduced natural salmon populations, “extensive hatchery programs have been implemented throughout . . . the West Coast.”  Not all hatchery fish return to the hatchery, however; some stray from the hatchery to mate and spawn in the wild...  Hatchery programs generally have two goals which can conflict with one another: to increase the number of salmon available for fishing, and to prevent natural salmon from becoming extinct. “While some of the programs . . . have been successful in providing fishing opportunities, many such programs have posed risks to the genetic diversity and longterm reproductive fitness of local natural steelhead populations.”

KEITHINKING: The opposing arguments of the environmentalists and the building industry may have helped bring about the NOAA victory in a court with a reputation for being less than deferential towards federal government agency decisions.  Trout Unlimited argued that the 2005 Hatchery Listing Policy impermissibly requires NMFS to consider the status of the entire Evolutionarily Significant Unit, rather than just the natural components of the ESU when making listing determinations, while the Building Industry’s core claim is that the ESA does not allow NMFS to make any distinctions between hatchery fish and natural fish once NMFS has included them in the same ESU.  As the 9th Circuit explained: "While Trout Unlimited contends that NMFS impermissibly conflates hatchery and naturally spawned salmon, the Building Industry argues that NMFS impermissibly distinguishes between hatchery and naturally spawned salmon."  The Court rejected both groups of criticisms, and simply deferred to NOAA.

See news coverage from  Photos of hatchery salmon and hatchery eggs from NOAA.

Cattle grazing allowed to continue, but criticized for endangered species impacts, by federal court in Idaho


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Western Watersheds Project v. Dyer, Nos. CV-04-181-S-BLW, CV-02-521-S-BLW, 2009 WL 484438 (D.Idaho, Feb. 26, 2009) (B. Lynn Winmill, Chief Judge)

SUMMARY: Western Watersheds Project, an environmental group, brought this lawsuit to ban livestock grazing in certain areas of the Jarbidge Field Office, 1.4 million acres of public land managed by the Bureau of Land Management (BLM). Western Watersheds Project (WWP) alleges that continued grazing destroys what little habitat remains for imperiled species like the sage grouse, pygmy rabbit, and slickspot peppergrass.  

Photo of sage grouse from Idaho Department of Fish & Game.

All three species are being considered for listing under the Endangered Species Act, and have been deemed "sensitive species" by the BLM. They rely on sage brush habitat that has been in steep decline for years across the west and subject to even more massive losses in the Jarbidge Field Office as a result of the 2007 Murphy Complex Fire…  The BLM has authorized grazing to continue in the unburned areas. Concerned by the rapidly deteriorating habitat for imperiled species, WWP has identified specific areas within the JFO where key habitat remains, and seeks to ban all grazing in those areas. WWP argues that the BLM violated federal environmental laws by failing to adequately take into account the interests of imperiled species when it decided to authorize grazing in key remaining habitat, repair fences, and adopt the criteria for reopening burned areas to grazing. The BLM, and the ranchers who hold grazing permits, deny these charges and assert that they are complying with the law.

RULING: The Court held ten days of evidentiary hearings, listening to testimony and examining thousands of pages of documents. In these Findings of Fact and Conclusions of Law, the Court finds (1) that three sensitive species in the JFO--the sage grouse, pygmy rabbit, and slickspot peppergrass--are in serious decline; (2) that livestock grazing is an important factor in that decline; (3) that the current management plan (known as a Resource Management Plan or RMP) governing the JFO is currently being revised by the BLM through the preparation of a comprehensive Environmental Impact Statement (EIS) designed to describe the ecological status of the JFO and identify the environmental impacts of activities, including grazing; (4) that the BLM has committed to preparing new grazing permits across the JFO when the new RMP is completed; (5) that in its 2008 grazing authorizations, the BLM misinterpreted the existing RMP, especially by viewing the RMP's requirements for protection of sensitive species as mere suggestions; (6) that the existing RMP is more protective of sensitive species than it has previously been interpreted by the BLM; (7) that the BLM is directed to correct its interpretation as it considers authorizing grazing for the 2009 grazing season and beyond; (8) that a ban on grazing is not required by law at this point as the Court is confident in the BLM's ability to modify the grazing to be authorized in the 2009 grazing season to accord with the Court's interpretation of the existing RMP; (9) that environmental studies in addition to the ongoing EIS are not required by law at this time; and (10) that the BLM's fencing and closure criteria decisions were consistent with legal requirements.

KEITHINKING: The decision was a partial defeat for the environmentalists, and denied many counts of Plaintiff's request for an actual injunction of grazing activities.  In a press release, Western Watersheds Project still snatched victory from the defeat, emphasizing a portion of the ruling that stated: "73.  The 2008 grazing authorizations show that the BLM allowed grazing as usual in the unburned areas with very little attempt to maintain and enhance these diminishing key sage habitat areas...   74. Moreover, the 2008 grazing authorizations show that the BLM continued to allow substantial grazing in key sage grouse habitat during critical seasons of mating, nesting, and brood-rearing...  75. Given the protections for sensitive species set forth in the 1987 RMP, as discussed above, the BLM must apply a more rigorous standard to grazing authorizations in the interim years before the new RMP is completed..."  Still, in the end, the Court declined to issue an injunction on grazing, instead issuing a "narrative" injunction concluding that "BLM is enjoined from interpreting the 1987 Resource Management Plan in any manner other than imposing requirements (1) to maintain or enhance existing and potential populations of the sensitive species within the planning area, and (2) to ensure that wildlife goals and watershed needs will be satisfied prior to allowing increases in livestock use."

SEE ALSO: news coverage by new, KMVT, Jarbidge Sage Grouse Local Working Group Plan,

California business park plan withstands judicial review, impacts to fairy shrimp critical habitat upheld


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Butte Environmental Council v. U.S. Army Corps of Engineers, No. 2:08-cv-1316-GEB-CMK, 2009 WL 497575 (E.D.Cal. Jan. 21, 2009)(Garland E. Burrell, Jr., U.S. District Judge)

BACKGROUND: Plaintiff Butte Environmental Council ("BEC") seeks summary judgment on its claim that the United States Army Corps of Engineers ("the Corps") violated the Clean Water Act ("CWA") when it issued a Section 404 permit authorizing the Stillwater Business Park development project ("the Project"), in Shasta County, California, and claims that the United States Fish and Wildlife Service ("FWS") violated the Endangered Species Act ("ESA") by issuing an inadequate Biological Opinion ("BiOp") for the Project, and further claims that the Corps violated that Act when issuing a Section 404 permit authorizing the Project based on the BiOp. Defendants seek summary judgment on all of BEC's claims.

The City of Redding, California, is developing the Stillwater Business Park Project southeast of downtown to enhance the City's economic stability by attracting business and industry, thereby improving the quality of life of unemployed and low-paid residents.
The Stillwater Business Park Project will directly and indirectly affect critical habitats for the threatened vernal pool fairy shrimp, endangered vernal pool tadpole shrimp (pictured above, from Yolo Conservation Plan), and threatened slender Orcutt grass.

THE BIOLOGICAL OPINION: The BiOp found the Project would result in the destruction of 234.5 acres, 5.4%, of vernal pool crustaceans in units 1 and 5 of protected vernal pool crustacean critical habitat. (BiOp at 27.) Further, the BiOp found the Project would result in the destruction of 242.2 acres, 3.7%, of unit 2 of protected slender Orcutt grass critical habitat. (BiOp at 28.) Additionally, the Project would destroy 356.6 acres of vernal pool crustacean critical habitat uplands and 242.2 acres of slender Orcutt grass critical habitat uplands. (Id. at 27-28.)...  However, Defendants argue FWS reasonably relied upon mitigation measures to be imposed upon the City when making its no adverse modification determination. (Ds. Mot. at 22:1-2.) The BiOp contains proposed conservation measures for the vernal pool fairy shrimp, vernal pool tadpole shrimp, the slender Orcutt grass, and their critical habitat. (BiOp at 10-12.) Preservation would occur at both on and off site locations and would range in preservation ratios from 1:1 to 4:1 (Id.) The Incidental Take Statement's "Terms and Conditions" require the City to adhere to the BiOp's conservation measures and also imposes several conservation measures prior to the Project's start. (BiOp at 32-33.)

NOTEWORTHY EXCERPT: ...under the ESA, it is reasonable for FWS to take into consideration mitigation measures when making a "no adverse modification" of critical habitat determination. Even though the Administrative Record "makes it clear" that there will be negative impacts on critical habitat, "e same record evaluates in some detail the ways in which these impacts will be mitigated by compensation measures ..." Hayward Area Planning Association, 2004 WL 724950 *7 (N.D.Cal.2004) (holding the "dedication of 1,197 acres for the preservation and management of whipsnake critical habitat for the benefit of the whipsnake and frog" was rationally taken into account by FWS in determining there was no adverse modification of critical habitat in its BiOp).

Defendants further argue that the FWS reasonably based its "no adverse modification" determination on the entire critical habitat for the respective species…   The ESA Section 7 Consultation Handbook states:  “Adverse effects on individuals of a species or constituent elements or segments of critical habitat generally do not result in jeopardy or adverse modification determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species entire range, or appreciably diminish the capability of critical habitats to satisfy essential requirements of the species.”  See also Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1075 (9th Cir.2004) (stating "The BiOps considered the important local effects, analyzing critical habitat more broadly when individual effects were not important")...

In light of the enforceable mitigation measures and the permissible broader analysis of critical habitat, the BiOp does state a "rational connection between the facts found and the conclusion reached." Id. at 1065. Accordingly, this portion of Defendants' cross-motion is granted.

SEE ALSO local news coverage

U.S. District Court in California rejects challenge of “no effect” determination for jurisdictional reasons, but foreshadows just how controversial the Bush Administration’s consultation regulations are (or could have become)


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Sierra Forest Legacy v. US. Forest Service, No. C-08-4240 SC., 2009 WL 416787 (N.D.Cal. Feb. 19, 2009)
KEITHINKING: This case resolved a jurisdictional dispute, and the Court reasonably concluded that a lawsuit could not be brought against the USFWS or NOAA Fisheries for a concurring opinion; instead, the Court held that the lawsuit should be directed at the action agency for making the “no effect determination” in the first place.  However, given the recent Bush Administration consultation regulations, and the regulation’s intention to empower action agencies to avoid consultation for “de minimus” actions, the discussion of the best available science standard in the opinion was remarkable.  Specifically, the Endangered Species Act, 16 U.S.C. § 1536(a)(2), states that "each agency shall use the best scientific and commercial data available" during the consultation process.  However, in what should probably be considered dicta, the Court found that a “no effect” concurrence was not part of the formal consultation process, and therefore, a challenge to the "no effect" decision was not subject to that best available standard.  If that logic were applied in the future to an action agency finding of some activity to be “de minimus” pursuant to the new Bush consultation regulations, then it would also mean that the agencies would not need to rely on science, and the cries of foul play would grow even louder – and probably with great justification.  The logic, however, seems flawed.  If the statute requires a decision to consult, and the consultation itself, to be based on the “best available science,” then it seems it should also require a decision not to consult to be based upon the best available science as well.

Plaintiffs challenged an amendment to the "land and resource management plan" for the Sierra Nevada National Forest adopted by the United States Forest Service ("Forest Service")… These forests are managed by the Forest Service pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601 et seq. which requires a plan to (in part) "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B). The Forest Service sought to amend its plan to reduce its tracking and monitoring of “management indicator species”--certain bellwether species whose population fluctuations are believed to be indicators of the effects of various forest management activities—from 60 species to 13.  The Forest Service’s Biological Assessment concluded that the MIS Amendment would have "no effect" on threatened or endangered species, or on the critical habitat of such species, and the National Marine Fisheries Service and U.S. Fish and Wildlife Service both concurred.   Photo of the The General Grant Tree, Kings Canyon National Park, from NPS. For the rest  of  the opinion...  

Court defers to FWS inferences on finding of insufficiency for petition to list giant Palouse earthworm


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Palouse Prairie Foundation v. Salazar, No. CV-08-032-FVS, 2009 WL 415596 (E.D.Wash., Feb. 12, 2009)

BACKGROUND: In this case, the FWS found that the petitioner's request for listing the giant Palouse earthworm (GPE) was not supported by substantial information.  As a result, the FWS declined to engage in further review of the GPE's status. The petitioners disagree with the FWS's negative 90-day finding. They have filed an action alleging the Secretary of the Interior and the Director of the Fish and Wildlife Service violated the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA").

The giant Palouse earthworm (Driloleirus americanus ) ("GPE") can grow to three feet in length. It was once common in the grasslands of the Palouse prairie. However, the Palouse prairie grasslands have all but disappeared and, during the last 30 years, few sightings of the GPE have been published (and other findings have occurred elsewhere).  Photo from

RULING EXCERPT: In essence, the plaintiffs are inviting the Court to review the data and make an independent de-termination with respect to whether the data would lead a reasonable person to believe the GPE should be listed as threatened or endangered. The problem with the plaintiffs' invitation is that it accords insufficient deference to the FWS's scientific judgment. The arbitrary-and-capricious standard "is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Northwest Ecosystem Alliance, 475 F.3d at 1140 (internal punctuation and citation omitted). Contrary to the plaintiffs, the issue before the Court is not whether a reasonable person could accept their interpretation of the data, but whether the FWS had a rational basis for concluding that a reasonable person would not do so. In making that determination, the Court must balance two considerations. On the one hand, the FWS was obligated to generously evaluate the data contained in the plaintiffs' petition. On the other hand, the FWS was entitled to use sound scientific judgment in deciding whether the data reasonably supported the plaintiffs' inferences concerning the status of the GPE...  FWS had a reasonable basis for its interpretation of the evidence. In this case, the FWS acted reasonably. At each point along the analytical path (whether considering the extent of the GPE's habitat, its population, or potential threats to its existence), the FWS had a rational basis for declining to draw the inferences sought by the plaintiffs. Consequently, the Court will grant the FWS's motion for summary judgment and uphold its determination.

KEITHINKING: Food for thought...  The FWS decision on the petition was made in October 2007.  Would the Obama have reached different inferences from the evidence, and found the petition to be sufficient?  And would the courts uphold the inferences had they gone the other direction...  for an earthworm?

Animal Welfare Institute v. Martin: dispute over Canada lynx trapping creates factual twists and procedural controversies


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ANIMAL WELFARE INSTITUTE, v. ROLAND D. MARTIN, 2008 U.S. Dist. LEXIS 97766, CV-08-267-B-W (D. Maine, Nov. 26, 2008)(Order on Motion for Preliminary Injunction)

EXCERPT & SUMMARY: On October 4, 2007, the Court approved a Consent Decree between the Animal Protection Institute and the state of Maine in which the state agreed to impose restrictions on trapping in order to avoid incidental takes of Canada lynx, a threatened species, and to apply for an incidental take permit from the United States Fish and Wildlife Service. The Plaintiffs have filed suit claiming that the restrictions in the Consent Decree have failed to prevent continued incidental takes of lynx and asking the Court to further enjoin trapping in the state of Maine to prevent such takes. The recent take of a lynx in a Conibear trap has revealed an acknowledged gap in the state's regulatory scheme, which the Department of Inland Fisheries and Wildlife has promised to amend by the next trapping season. However, as the regulatory gap presents an immediate risk to lynx during the current trapping season and the state has proffered no reason the regulations cannot be amended on an emergency basis, the Court grants the Plaintiff's motion for preliminary injunction in part to require the state to take immediate action…  The Court orders the state of Maine to immediately take all action necessary to avoid the trapping of Canada lynx in Conibear traps, including the promulgation of emergency regulations, if necessary, to assure that Canada lynx do not have access to Conibear traps either by way of the structure upon which the Conibear trap is placed or by way of adjacent structures.

In the lower forty-eight states, Canada lynx (Lynx canadinsis) inhabit both boreal forests and subalpine coniferous forest or northern hardwoods. Pls.' Mot. Attach. 2, Camilla Fox. Aff. P 20 (Docket # 7-3) (Fox Aff.). The historical range of the species in the contiguous states encompassed the northeastern states, including New York and Pennsylvania, the Great Lakes states, the Rocky Mountains, including Montana, Idaho, Oregon, Utah, and Colorado, and the Cascade Range of Washington and Oregon. Id. As a result of habitat degradation and overexploitation, lynx populations have declined dramatically over the last century and have disappeared completely from portions of their former range. Id. P 23. Lynx are highly dependent on the snowshoe hare as their primary prey and their populations generally fluctuate with the ten-year hare population cycle. Id. P 22. As of March 24, 2000, the United States Fish and Wildlife Service (USFWS) listed the lynx as a threatened species. 65 Fed. Reg. 16052 (March 24, 2000) (codified at 50 C.F.R. § 17.11).  Photo from FWS Mountain Prairie Region.  See also ESA blawg.

KEITHINKING: During the briefing of this dispute over the adequacy of the Maine trapping regulations and their compliance with the Endangered Species Act, a Canada lynx was caught and killed by a trap that arguably violated the state rules, or at least, their spirit and intent.  In light of that evidence, the Court ordered the State to immediately amend its rules, but did not substitute its judgment for the State officials, and left the manner of the amendment to the state’s discretion.  

MORE KEITHINKING: This also presented two interesting procedural disputes.  The first procedural question was whether two different non-profit organizations, led by the same people, with very similar animal rights agendas, could pursue separate lawsuits.  The trappers argued that one group, the Animal Welfare Institute, was using a new lawsuit to evade claim preclusion based on the other existing lawsuit involving the Animal Protection Institute.  Recently, in Taylor v. Sturgell, 128 S. Ct. 2161 (2008), the United States Supreme Court extensively addressed claim preclusion. Taylor noted that "e preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" 128 S. Ct. at 2171. "  A second question procedural question was whether the Court should rule at all on the preliminary injunction, or instead, issue a stay, because the State of Maine had a pending incidental take permit application for its trapping program that would resolve the questions of ESA compliance.  The court, however, pushed forward with adjudication on the merits.  Excerpts from the Court’s discussion of the stay, and the claim preclusion issue, are at the very end of the READ MORE section below.

U.S. Supreme Court supports Navy, reverses Nines, in appeal of preliminary injunction affecting sonar operations


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Winter v. NRDC, No. 07–1239 (S.Ct., November 12, 2008)

Secretary of the Navy Winter, right, and Admiral Gary Roughead depart the Supreme Court of the United States after Oral Arguments on October 8, 2008. U.S. Navy photo by Mass Communication Specialist 2nd Class Kevin S. O'Brien

FACTUAL BACKGROUND: Plaintiffs contended that Mid-Frequency Active (MFA) sonar can cause serious injuries to marine mammals, including permanent hearing loss, decompression sickness, and major behavioral disruptions including mass strandings.  The Navy, however, adopted several mitigation procedures, including: lookouts, reporting detected marine mammals in the vicinity of the training exercises, and, upon detection of marine mammals, reduction or shut down of sonar.  The Navy completed an environmental assessment pursuant to the National Environmental Policy Act, but Plaintiffs sought a full Environmental Impact Statement, eventually leading the Navy to also obtain authority from the Council on Environmental Quality (CEQ) to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” See 40 CFR §1506.11.3.  

PROCEDURAL BACKGROUND: The District Court granted plaintiffs’ motion fora preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The District Court held that plaintiffs had “demonstrated a probability of success” on their claims.  The Ninth Circuit agreed with the District Court’s holding that the Navy’s EA—which resulted in a finding of no significant environmental impact—was “cursory, unsupported by cited evidence, or unconvincing.” The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court.

SCOTUS OPENING: (Opinion by Chief Justice Roberts): "The plaintiffs complained that the Navy’s sonar training pro-gram harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though that court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. 518 F. 3d 658, 696 (CA9 2008).  The Court of Appeals was wrong, and its decision is reversed."

SCOTUS CONCLUSION: "President Theodore Roosevelt explained that “the only way in which a navy can ever be made efficient is by prac-tice at sea, under all the conditions which would have to be met if war existed.” President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the impor-tance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy."

KEITHINKING: The environmentalists defeat was predictable.  See ESA blawg (Feb. 19, 2008)  The 9th Circuit and District Court simply overreached in granting a preliminary injunction against the use of Naval sonar for anti-submarine warfare training exercises, especially in this procedurally-driven NEPA case, where the White House had weighed in and granted special authority.  Judicial restraint by the Supreme Court was inevitable. See also ESA blawg)(discussing judicial restraint by the 9th Circuit and potential influence of the sonar case)

District Court clarifies reasons for rejecting FWS decision to withdraw proposed slickspot peppergrass listing


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Western Watersheds Project v. Kempthorne, Case No. CV 07-161-E-MHW, 2008 U.S. Dist. LEXIS 84017 (D. Idaho, October 17, 2008)(Honorable Mikel H. Williams, United States Magistrate Judge)

BACKGROUND: The original decision in question here was discussed in a prior ESA blawg (June 2008).  That posting noted that the District Court was less-than-deferential to FWS, and that the judge's opinion could be interpreted as erroneously ordering FWS to use an expert peer review panel -- something that the Endangered Species Act does not require.  In this opinion, in response to a motion for reconsideration, the District Court further explained its reasons for rejecting the FWS January 2007 decision to withdraw a rule previously proposed in 2002 to list the slickspot peppergrass as a threatened species.

EXCERPT: When the FWS decided to not present the new information to the Science Panel, the FWS violated the requirement to base their decision on the best available scientific evidence. Surely the FWS is not now contending that they went through all of the effort of assembling the 2006 BAI, having it peer reviewed, and convening seven experts in high desert plants to study the information if that entire process would in some manner give them something less than the best scientific information upon which to make their decision. To put it another way, having the FWS managers, who were not experts on high desert plants, decide that the Slickspot peppergrass was not a threatened species based on their own interpretation of the "new" evidence was not based on the best scientific evidence then available. If these managers were experts in this field, then one may properly ask why the Science Panel was thought to be appropriate and important in the first place. And without going through each item of "new" evidence, it is particularly troubling that the Science Panel never had an opportunity to comment on the Executive Summary in the Menke and Kaye 2006b report, which states that declining population trends of Slickspot peppergrass indicated a decrease in abundance range-wide. Rather than contradicting the extinction risk assessment by the Science Panel, the new information could have very well offered further support for the conclusions of the Science Panel.
The Court agrees with the FWS, based on the cases cited earlier, that the "best scientific and commercial data available" standard cannot require an agency to conduct independent studies, for example conducting a walking tour of an 8.6 million acre site or further testing to determine the effects of various environmental factors. See Arizona Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1027 n. 6 (D. Ariz. 2008); Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 19-20 (D. D.C. 2001). The Court's remand order is not remotely close to these examples. The Court is not asking the FWS to conduct independent studies or other further testing. The information that the FWS contends called into questions the previous recommendations of Manager Panels I and II was "available" and could have been considered. Instead, the Court is ordering that the FWS base its decision on the best scientific information then available about the Slickspot peppergrass. While they may be more than one path to arrive at the best scientific information, certainly following the procedures that the FWS had already decided from the very beginning were appropriate in this case, would logically lead to a decision based on the best science.

Court denies effort to transfer fairy shrimp critical habitat litigation to California


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Otay Mesa Property v. U.S. Dept. of the Interior, --- F.Supp.2d ----, Civil Action No. 08-383(RMC), 2008 WL 4767998 (D.D.C., Nov. 3, 2008.) Rosemary M. Collyer, District Judge.  

EXCERPT: This case involves a challenge to a final critical habitat determination by the United States Fish and Wildlife Service for the San Diego fairy shrimp (Branchinecta sandiegonensis ), an endangered species which inhabits the waters in and around San Diego County, California. The Federal Defendants move to transfer the case to the Southern District of California, asserting that the interests of justice will be served best by transferring this action. In support of their motion, the Federal Defendants observe that the agency that substantially developed the final critical habitat determination at issue is located within the Southern District of California, two of the Plaintiffs reside in the Southern District of California, and all five of the critical habitat units designated for the San Diego fairy shrimp are located in southern California, four of which are located in San Diego County. Despite the location of the property at issue, the Court finds that the arguments in favor of transfer do not outweigh the deference afforded to the Plaintiffs' choice of forum, and therefore will deny the Federal Defendants' motion to transfer this case to the United States District Court for the Southern District of California.

The San Diego fairy shrimp, a tiny freshwater species whose decline points to a loss of unique California wetlands, was added to the Federal endangered species list in 1997 by the U.S. Fish and Wildlife Service. 62 Fed.Reg. 4925 (Feb. 3, 1997).  Most of the species' remaining habitat is on Federal land or in areas involved in conservation planning efforts.  Specifically, these shrimp live in vernal pools, which once dotted most of California's Central Valley and coastal southern California. Vernal pools are seasonal wetlands that fill with water during fall and winter rains. They are home to many plants and animals that, in turn, form a valuable part of the food chain for a wide array of animals, including birds of prey, shorebirds, migratory waterfowl, frogs, toads, salamanders, and pollinating insects.  In 2000, the FWS proposedand eventually designatedapproximately 4,000 acres in Orange and San Diego counties in California as critical habitat for the species.  65 Fed.Reg. 63438 (Oct. 23, 2000). Plaintiffs in this case, Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC, are owners of unimproved land in the Otay Mesa area of San Diego County, California. The 2000 final determination did not include any of Plaintiffs' land.   Photo above of San Diego's vernal pools from blogger urbp240_2007

Attempt to challenge delayed five-year status review for suckers dismissed by U.S. District Court in Oregon


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Moden v. U.S. Fish & Wildlife Service, Civil No. 08-CV-214-CL, 2008 WL 4763025 (D.Or. Oct. 27, 2008)(Recommendations by Magistrate Judge Clarke adopted by Judge Panner)

 Plaintiffs filed a complaint under the Endangered Species Act ("ESA") alleging that the United States Fish and Wildlife Service ("FWS") breached its nondiscretionary duty to utilize the best available scientific and commercial data in its decision making, and that FWS's breach of that nondiscretionary duty was arbitrary and capricious.

In five-year reviews, FWS determined that the Lost River Sucker should be downlisted from endangered to threatened and that the Short Nose Sucker should remain listed as endangered.  Plaintiff's effort to challenge the delay in the release of these documents was dismissed for lack of subject matter jurisdiction.  Photo of Lost River Sucker from FWS (pictured fish is 30-35 years old)

With some procedural issues resolved, litigation over Glen Canyon Dam and the humpback chub moves to next phase


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Grand Canyon Trust, Plaintiff, vs. U.S. Bureau of Reclamation, Case No. CV-07-8164 PCT-DGC (D. Arizona, Sept. 26, 2008), 2008 U.S. Dist. LEXIS 83853

Plaintiff Grand Canyon Trust filed suit (see press release) against the United States Bureau of Reclamation and the Commissioner of the Bureau (collectively, the "Bureau"). Dkt. # 1. Plaintiff has named the United States Fish and Wildlife Service ("FWS") as a defendant in a supplemental complaint. Plaintiff describes itself as an organization created to "protect and restore the canyon country of the Colorado Plateau" including its "diversity of plants and animals." Dkt. # 59 P 8. Plaintiff claims that the Bureau's current operation of the Glen Canyon Dam, particularly the Dam's non-seasonal fluctuating releases of water into the Colorado River, jeopardizes the endangered humpback chub and its habitat and fails to comport with statutory procedures. The Court allowed several States and other entities to intervene in this case as defendants.

The Bureau operates the Dam using a water release system known as the "modified low fluctuating flow" or "MLFF." Plaintiff contends that the MLFF system impermissibly harms the humpback chub and its habitat, while a "seasonally adjusted steady flow" or "SASF" system would be more accommodating of the chub and more consistent with the Bureau's obligations under the ESA. Plaintiff also claims that the Bureau has failed to fulfill its obligation to consult with FWS in developing the Dam's annual operating plans and to assess the environmental impacts of those plans.

In this decision, the U.S. District Court attempted to resolve a series of preliminary, procedural questions for some claims, but ultimately concluded that most of the claims were intertwined, and would require additional briefing.  Most notably, the Court found that claims originally associated with a 1994 biological opinion were not rendered moot by the issuance of a 2008 biological opinion, because the Plaintiff supplemented its original complaint, apparently alleging that the Bureau of Reclamation, by relying upon the 1994 and 2008 biological opinions, had violated and continued to violate the ESA.  From November 2008 through February 2009, the parties will be submitting additional briefs in an effort to resolve this record review case through cross-motions for summary judgment.  

Glen Canyon Dam is located on the Colorado River in Northern Arizona. (Picture from Wikipedia).  The Dam creates Lake Powell, 186 miles long and the second largest reservoir in the United States. Congress authorized the construction of the Dam in 1956 for the purposes of "regulating the flow of the Colorado River, storing water for beneficial consumptive use, ndmaking it possible for the States of the Upper Basin to utilize . . . the apportionments made to and among them." 42 U.S.C. § 630. Generation of hydroelectric power was recognized as "an incident of the foregoing purposesquot; Id.  

The humpback chub is a "big-river fish" that developed in the canyons of Northern Arizona three to five million years ago.  (Picture above from the Glen Canyon Dam Adaptive Management Program).  The species exists primarily in the relatively inaccessible canyons of the Colorado River. Six humpback chub populations have been identified, five upstream of the Dam and one downstream.   The humpback chub was listed as endangered under the statutory predecessor to the Endangered Species Act ("ESA"). 32 Fed. Reg. 4001 (Mar. 11, 1967). In 1973, the chub was listed as endangered under the newly-enacted ESA. 38 Fed. Reg. 106 (June 4, 1973). In 1994, critical habitat for the chub was designated. Such habitat is essential for the endangered species' survival and therefore requires special management. 59 Fed. Reg. 13374 (Mar. 21, 1994).

9th Circuit finds conservation groups have standing to challenge treaty


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Salmon Spawning & Recovery Alliance v. Gutierrez, No. 06-35979, --- F.3d ----, 2008 WL 4490533 (9th Cir., October 8, 2008)

SUMMARY: "Wild salmon and steelhead, which are listed as threatened or endangered under the Endangered Species Act, have been the subject of much litigation in the federal courts. As they swim back and forth from the Pacific Northwest to Canada, the fish have no cognizance of an international boundary, or the Pacific Salmon Treaty ("Treaty"), an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest.  This appeal concerns whether three conservation groups have standing to challenge the decision of federal agencies and officials to enter into, and remain a party to, that Treaty. The groups alleged that take levels permitted under the Treaty have allowed Canadian fisheries to overharvest endangered and threatened salmon and steelhead. The district court dismissed all three of their claims for lack of standing. We reverse the district court in part because the groups have procedural standing to bring their third claim for relief.  We affirm the dismissal of the first and second claims."

The Pacific Salmon Treaty embodies the commitment made by Canada and the United States to carry out their salmon fisheries and enhancement programs so as to:  prevent over-fishing and provide for optimum production, and ensure that both countries receive benefits equal to the production of salmon originating in their waters.  Image from

Read on for additional analysis, excerpts, and Keithinking...

Federal Court's preliminary injunction opinion in grazing case leaves the reader wanting MUCH more...


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Oregon Natural Desert Association v. Kimbell et al, Civil No. 07-1871-SU,, 2008 WL 4186913 (D.Or. Sept. 5, 2008)(HAGGERTY, Chief Judge).

When grazing is permitted on federal lands, livestock can trample spawning nests of fish, destroy or dislodge young fish that concentrate in large numbers in small areas, and otherwise harass the fish.  Grazing can also indirectly degrade fish habitat by removing riparian vegetation, destabilizing stream banks, widening stream channels, promoting incised channels, lowering water tables, reducing pool frequency, increasing soil erosion, and altering water quality.  These effects can reduce cover, increase summer water temperatures, promote formation of anchor ice in winter, and increase sedimentation into spawning and rearing habitats.  In sum, grazing certainly can create significant headaches for land managers seeking to comply with the Endangered Species Act.  Photo from Managed Grazing in Riparian Areas, and online resource prepared by the National Sustainable Agriculture Information Service, funded under a grant from the United States Department of Agriculture.

KEITHINKING: So much for my theory that maybe the 9th Circuit's decision in The Lands Council v. McNair (see prior ESA blawg) might reflect a shift in environmental jurisprudence out West.  In this dispute over grazing allotments on Oregon lands and the impacts of the grazing on endangered fish, the  District Court ignored the 9th Circuit decision altogether, emphasizing instead older case law and the potential threats to endangered species.  The opinion was noteworthy for the absence of application of facts to law.  Instead, the opinion states the Plaintiff's theory of the case, cites the fact that evidence was submitted to it (despite the fact that these cases are traditionally administrative record review cases), and then simply agrees with the Plaintiffs, finding that they were likely to prevail and had adequately demonstrated harm.  I offer no opinion on whether Plaintiff's case has merit or not.  And I recognize that this is only the opinion on a preliminary injunction.  However, the Court's analysis certainly could have been more weighty.

Section 1983 claims related to endangered mussels in Neversink River sent off to Neverland by federal judge


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Elliot v. City of New York, No. 06-CV-296 (KMK), 2008 WL 4178187 (Sept. 8, 2008, S.D.N.Y.)

Plaintiffs bring this action against the City of New York including the City of New York Department of Environmental Protection… Plaintiffs allegations… revolve around the City's alleged failure to properly operate and maintain the Neversink Reservoir and Neversink Dam during March and April 2005… The fourth claim of Plaintiffs' Second Amended Complaint alleges that the City violated 42 U.S.C. § 1983 ("Section 1983") by depriving Plaintiffs of their substantive liberty and property interests without due process of law, and by failing to comply with provisions of the Endangered Species Act ("ESA") and Clean Water Act ("CWA"). For the reasons stated herein, Defendant's Motion to Dismiss the fourth claim of Plaintiffs' Second Amended Complaint is granted…

Protection of the dwarf wedgemussel, an endangered species with its most substantial population discovered in the Neversink River in 1990, has triggered recovery planning efforts and even dam demolition projects, but Congress probably never anticipated lawsuits based on §1983 and "Civil actions for deprivation of rights."    Image from New York State Department of Environmental Conservation.

KEITHINKING: Citing relevant Supreme Court caselaw finding that the Clean Water Act could not serve as the basis for a Section 1983 claim, because the CWA had a separate citizen enforcement regime, U.S. District Judge Kenneth M. Karas in the Southern District of New York held that the same reasoning applied to a Section 1983 claim relying upon the Endangered Species Act .

9th Circuit finds ESA lawsuit related to tower strikes cannot be used to avoid FCC's administrative process


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American Bird Conservancy v. Federal Communications Commission, D.C. No. CV-05-00461-DAE (9th Cir. October 6, 2008)

SUMMARY: We must decide whether an environmental group may employ the citizen-suit provision of the Endangered Species Act to challenge a Federal Communications Commission decision to issue licenses for seven communications towers in Hawaii...  Our holding today does not foreclose future judicial review of the licensing decisions at issue here. Nothing prevents American Bird from continuing to pursue its claims through the FCC’s administrative process, obtaining an adverse final order, and challenging that order in this court.  While we sympathize with American Bird’s complaint that the FCC’s administrative process moves at a “glacial” pace, such impatience does not provide a ground to ignore Congress’ carefully crafted system of judicial review.

American Bird Conservancy alleged that the towers were killing two threatened or endangered species of seabirds: the Hawaiian petrel (photo above from State of Hawaii) and the Newall’s shearwater.

KEITHINKING: This appellate decision, in the Ninth Circuit, coupled with a related ruling the D.C. Circuit (also posted in ESA blawg) suggests that the attempts to use the ESA as a litigation tool for these FCC decisions should soon end.  For more resources, visit the related ESA blawg, or this FWS manuscript.  For more on the opinion...

Federal judge rejects FWS delisting of Minnesota's gray wolves: Humane Society v. Kempthorne (D.D.C.)


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Humane- Society v. Kempthorne, Civil Action No. 07-0677 (PLF), --- F.Supp.2d ----, 2008 WL 4378080 (D.D.C. Sept. 29, 2008)(Paul L. Friedman, District Judge).

INTRO: In 1978, the gray wolf (Canis lupus ) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service ("FWS"), an agency within the Department of the Interior, promulgated a final rule revising the wolf's listing status. See 72 Fed.Reg. 6052 (Feb. 8, 2007) (the "Final Rule"). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a "distinct population segment," or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. See id., 72 Fed.Reg. at 6066. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS...  See summary and Q&A pages by FWS.

Soon thereafter, plaintiffs The Humane Society (and others) brought this suit. They challenge the Final Rule under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. ("ESA" or "the Act"), and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., claiming that FWS violated the ESA and acted arbitrarily and capriciously by simultaneously designating and "delisting" the western Great Lakes DPS…  the Court concludes that FWS failed to acknowledge and address crucial statutory ambiguities in the course of promulgating the Final Rule. The Court therefore vacates the Final Rule and remands to the agency for further proceedings consistent with this Opinion...

RULING: In sum, the ESA could be construed in the way urged by FWS. But it is one thing to say that the statute could bear FWS' interpretation; it is another thing to say that it could bear no others and therefore is unambiguous on the precise question at issue. See, e.g., Air Transport Ass'n of America v. FAA, 169 F.3d 1, 4 (D.C.Cir.1999)...  Therefore, the Court cannot endorse FWS' "plain meaning" reading...

Photo by Minnesota DNR available from Minnesota NPR.

KEITHINKING:  Though coincidentally timed with the recent emergence of data suggesting that wolf hunting was causing serious population declines in the Northern Rockies, see (Sept. 29, 2008), this case addresses a wholly separate legal dispute.  The court disagreed with the FWS on a matter of statutory interpretation, and remanded the issue back to the agency for further consideration.  However, the Court took the additional step of wholly vacating the rule delisting the wolf in the Great Lakes, and thus, reinstated the previous federal regime of wolf management pursuant to the Endangered Species Act.

A statement by the Minnesota Department of Natural Resources explains the decision as follows: "This was a technical legal decision that focused on federal rule-making procedures and will require the federal government to revisit its processes," Stark said. "The ruling had nothing to do with the status of Minnesota's wolf population or the adequacy of state management."
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Takings and the ESA: Casitas Municipal Water District v. United States (Fed. Cir.)


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Casitas Municipal Water District v. United States, Case No. 2007-5153 (Fed. Cir. Sept. 25, 2008)

   SUMMARY: Casitas Municipal Water District (Casitas) appeals the judgment of the United States Court of Federal Claims granting summary judgment in favor of the government holding that there was no governmental breach of contract and no compensable taking under the Fifth Amendment… we affirm the district court’s grant of summary judgment in favor of the government with respect to Casitas’ breach of contract claim and reverse the district court’s grant of partial summary judgment in favor of the government with respect to a taking under the Fifth Amendment. We remand for further proceedings consistent with this opinion.

Depending on the outcome of the Federal Court of Claim proceedings, the U.S. government may be compelled to compensate the Casitas Municipal Water District for the water "diverted" away from the Robles Diversion Dam fish ladder, a structure substantially modified in 2003 by Wood Rogers to benefit steelhead rainbow trout.  Photo from Wood Rogers

   KEITHINKING: This decision could have significant implications for ESA implementation on the West Coast.  Although clearly dependent upon the specific terms of the water rights and contracts in place, the ruling suggests that a biological opinion that includes measures altering water use rights to benefit listed species can create a compensable taking, requiring the government to pay for the lost water rights.  In other words, for federal agencies, ESA implementation may soon become much more expensive.  See Ventura County Star news coverage, and excerpts below.

NWF v. Harvey: Federal Judge in Arkansas finds flaws in informal consultation on Ivory Billed Woodpeckers


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National Wildlife Federation v. Harvey, No. 4:05-CV-01278-WRW, 2008 WL 3365017 (E.D.Ark., Aug. 8, 2008).

Ivory Billed Woodpecker specimen image from ARKive, Images of Life on Earth, © John Cancalosi /, available online  The Ivory Billed Woodpecker  (Campephilus principalis) (IBW) is the largest woodpecker in the United States and the second largest in the world. The IBW was thought to be extinct since 1944; however, in April 2005, Cornell scientists confirmed a sighting in the Cache River National Refuge, and it was heard in the White River National Wildlife Refuge. The primary reason for the decrease in the IBW appears to be a reduction in suitable habitat because of logging and conversion of forest habitats.  In order to thrive, the IBW must have uninhabited forest with old-growth trees and a continuous supply of newly dead trees. A single breeding pair may need as much as seventeen square miles of bottomland forest to survive. The IBW forages in trees greater than 11.8 inches in diameter at breast height ("dbh"), where they feed on beetles and beetle larvae in dead trees, and on ground dwelling insects. The IBW is known to nest forty feet above ground in large dead trees or in dead portions of live trees.  

FACTUAL BACKGROUND: The Grand Prairie consists of approximately 500,000 acres located between the Mississippi and Arkansas Rivers and has become one of the major rice producing areas of the world. The White River runs directly through the region and water used to support agriculture has come primarily from wells drilled into the Alluvial Aquifer… Based on the current rate of usage, scientists estimate that the Alluvial Aquifer will go dry, or nearly dry, in four to nine years…  The Grand Prairie Project ("GPP"), which is under attack in this lawsuit, is designed to prevent the depletion of the Alluvial and Sparta Aquifers by pumping water from the White River and delivering it to the Grand Prairie farmland for irrigation. This will be done by constructing a pumping station, and by using a system of man-made canals, pipelines, and existing streams…  Importantly, the GPP's impact area will include the White River National Wildlife Refuge, which is home to the largest remaining functional bottomland hardwood ecosystem on any tributary of the Mississippi River. This area is renowned for its fish and wildlife, as well as the overall uniqueness of its ecosystem. It is also the last known North American refuge of the Ivory-billed Woodpecker ("IBW").

PROCEDURAL HISTORY: From 1996 to 2005, NWF and the Corps were engaged in litigation related to the National Environmental Policy Act and the construction of the GPP.  After an 8th Circuit affirmation of the NEPA analysis, the Corps began construction...  On April 28, 2005, the FWS announced the rediscovery of the IBW, and the Corps suspended construction…  The Corps, with FWS concurrence, initially concluded that the GPP was not likely to adversely affect the IBW… but the District Court granted a preliminary injunction on continued GPP construction, agreeing with NWF that there was evidence that the IBW might be jeopardized…  After an informal consultation, the Corps and FWS identified the potentially affected habitats, and developed surveys and monitoring criteria, and concluded that the GPP was not likely to adversely affect the IBW.

RULING RE: SURVEYS.  The District Court agreed with the Federal Defendants that much of the GPP area is on prairie terrace, and "currently primarily in agricultural production with forested areas confined to lands in public ownership or the lowest wettest areas along streams and drainage.”  Thus, most of the project area is "outside the area considered to be within the potential range of the IBW."

RULING RE: WATER WITHDRAWALS: “Based on the administrative record before me, the agencies reasonably decided that the impacts of the water withdrawals would not adversely affect the IBW or its habitat. Additionally, the FWS, aware of the possible effects of water withdrawal, created a monitoring and daptive Management Program as an additional safeguard against unexpected impacts.” … “Plaintiffs argue that it will take many years to detect unacceptable changes, and that Defendants' claims that they will quickly craft and implement solutions to counter unacceptable changes is unreasonable, unscientific, and arbitrary because of the complexity of the ecosystem. To support their position, Plaintiffs again rely on statements that were not part of the administrative record, and therefore, are outside the scope of my review. I must rely on the agencies if they have a reasoned, rationale explanation for their decision, and I find here that they have.”

RULING RE: SURVEY CRITERIA:  Plaintiffs argue that the final survey criteria relied upon by the agencies were inadequate and the FWS arbitrarily changed the search criteria used. Ultimately, the District Court held: (i) FWS reasonably set the final survey criteria based upon typical distances traveled by the IBW. (ii) FWS’s final survey criteria placed a greater emphasis on the larger trees and determined that areas dominated by trees with 16 inch in dbh or greater would provide proper nesting and roosting opportunities for the IBW… and FWS conclusion was rational and supported by the record. (iii) FWS properly surveyed the area around permanent structures.  However, (iv) FWS unreasonably reduced the monitoring of tree cavities…  “FWS does not supply a reasoned basis for its decision to reduce the monitoring time nor is the FWS's logic reasonably discerned. It is unclear why monitoring would be reduced when the IBW was not discovered using the longer monitoring period... reducing the observation time, thereby apparently making it less likely to observe the IBW, without explanation, is arbitrary and capricious. An agency must cogently explain why it has exercised its discretion in a given manner--the FWS has not met this burden.”

REMEDY: “The Supreme Court has held that "when an administrative agency has made an error of law, the duty of the Court is to 'correct the error of law committed by that body, and after doing so remand the case to the agency so as to afford it the opportunity of examining the evidence and finding the facts as required by law.' "   In other words, when an administrative error has been identified, a reviewing court "should ordinarily remand the matter to the agency rather than compensate for the agency's oversight by launching a free-wheeling judicial inquiry into the merits." … For the above stated reasons, Defendants' finding that the GPP will not adversely affect the IBW is VACATED, and the action is REMANDED to correct the deficiencies regarding the monitoring period in the administrative record.”

KEITHINKING: The District’s courts ruling on the inadequacy of the tree cavity monitoring program is noteworthy, given the fact that this was an informal consultation.  While the record may indeed have lacked sufficient explanation of why FWS felt that less monitoring was reasonable, FWS was held to a very high standard for an analysis of a project that was not likely to adversely affect the species.  While certainly a good idea, especially for purposes of helping to locate the Lord God bird, nowhere does the ESA require monitoring to result from informal consultation, and the requirement seems particularly out-of-place for a project found to be NLAA.


Rejecting CBD, and reversing lower court, 9th Circuit rules for developer of California waterfront condominium


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Center for Biological Diversity v. Marina Point Development Co., No. 06-56193, (9th Circuit, Aug. 5, 2008)

Cabins on leased U.S. Forest Service lands along North Shore of Big Bear Lake, near the proposed Marina Point development.  Photo from Chris Atkins' Big Bear Lake Real Estate blog.

KEITHINKING: Although the Ninth Circuit is often thought to be a preferred forum by environmental plaintiffs, this case defies such simplistic characterizations -- see also ESA blawg (July 7, 2008) -- because the Nines wholly rejected a lower court opinion and the Center for Biological Diversity's efforts to enforce the Clean Water Act and Endangered Species Act.  Instead, a three judge panel ruled in favor of a private developer of a California waterfront condominium, and (a) reversed the lower court on the substance of the CWA and ESA issues based on jurisdictional barriers related to inadequate notice and mootness, and (b) reversed the lower court on the award of fees and the issuance of sanctions.  

U.S. District Court Judge moves Sacramento delta one step closer to reinventing regional water management


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Pacific Coast Federation of Fishermen v. Gutierrez, 1:06-CV-00245 OWW GSA (E.D.Cal.,  July 18, 2008)(Judge Wanger)

PROCEDURAL BACKGROUND.  A memorandum decision and order, issued April 16, 2008 as amended May 20, 2008, granted in part and denied in part Plaintiffs’ Endangered Species Act (“ESA”) challenges to the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) on the effects of coordinated operation of two of California’s largest water projects, the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”), on the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, and the threatened Central Valley steelhead.  Plaintiffs move for injunctive relief.  The parties submitted briefs and evidence on whether the species’ would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOP is released. While the proceedings were in progress, Plaintiffs moved for emergency injunctive relief, suggesting the immediate implementation of a number of interim remedies was necessary to prevent jeopardy.

The geographic distribution of winter-run Chinook salmon spawning is currently limited to the mainstem Sacramento River in the reach from Keswick Dam to Red Bluff Diversion Dam (RBDD), pictured above. However, the actual distribution of spawning and egg incubation within the reach varies among years in response to water temperatures, adult abundance, and other factors.  The RBDD is comprised of eleven gates across the Sacramento River that, when lowered, raise the elevation of the river to allow water to flow by gravity into the Tehama-Colusa and Corning Canals, where water is distributed mainly to agricultural users.  Early fish studies at RBDD demonstrated that the closure of RBDD’s gates created a barrier to fish passage, resulting in delayed migration, disorientation of juveniles, and increased mortality. Based on the results of these earlier studies, RBDD gate operations have been modified over time to reduce the seasonal period when the gates are closed.  Photo from U.S. Bureau of Reclamation, Sacramento River Division.

RULING: "The Court concluded, for each of the three species in question, that all three salmonid species are not viable and are all in jeopardy of extinction. NMFS' biologist testified that a species that is not viable is 'almost extinct or on the verge of being extirpated.' ...  All three experts agreed that extinguishing or reducing any single population within any of the three ESUs would diminish the ESU's viability and increase the risk of extinction. Based on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the three species are unquestionably in jeopardy. The ESA does not permit jeopardy to a listed species to be considerably increased during a BiOp reconsultation. Project operations through March 2009 will appreciably increase jeopardy to the three species."

Federal judge in Colorado enjoins delisting of the gray wolf in the northern Rocky Mountains


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Defenders of Wildlife v. Hall, 2008 WL 2780917 (D.Mont. July 18, 2008)

Wolves were once abundant throughout most of North America. Wolf hunting and an active, government-sponsored eradication program resulted in the extirpation of wolves from more than 95 percent of their range in the lower 48 states. They were exterminated in Idaho, Montana, Wyoming, and adjacent southwestern Canada by the 1930s.   .  The Northern Rocky Mountain gray wolf was listed under the ESA in 1974. 39 Fed.Reg. 1171 (Jan. 4, 1974). In 1987, the Fish & Wildlife Service developed  a wolf recovery plan. 72 Fed.Reg. at 6107. This plan established a recovery goal of at least 10 breeding pairs and at least 100 wolves for three consecutive years in each of three core recovery areas: northwestern Montana, central Idaho, and the Greater Yellowstone area.  Photo from FWS South Dakota Field Office.

OPINION BY DONALD W. MOLLOY, District Judge.  "This case, like a cloud larger than a man's hand, will hang over the northwest states of Montana, Idaho, and Wyoming until there has been a final determination of the complex issues presented . Those issues must be answered in accordance with the intent of Congress as stated in the Endangered Species Act and its implementing regulations. Here, Plaintiffs challenge the U.S. Fish & Wildlife Service's decision to designate and delist a northern Rocky Mountain gray wolf distinct population segment under the Endangered Species Act ("ESA"), 16 U.S.C. 1536.  In seeking to alter the course of that decision, Plaintiffs move for a preliminary injunction. They ask the Court to reinstate ESA protections for the wolf, at least while this lawsuit is pending...  In my view, Plaintiffs are likely to succeed on the majority of the claims relied upon in their request for a preliminary injunction. In particular, (1) the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of evidence of genetic exchange between subpopulations; and (2) it acted arbitrarily and capriciously when it approved Wyoming's 2007 plan despite the State's failure to commit to managing for 15 breeding pairs and the plan's malleable trophy game area. In both instances, the Fish & Wildlife Service altered its earlier position without providing a reasoned decision for the change based on identified new information.

KEITHINKING: The Court's opinion appears to reject the FWS position, as previously published in the Federal Register and as discussed in ESA blawg (Feb. 27, 2008).  Of particular note, the Court ruled that "the reduction in the wolf population that will occur as a result of public wolf hunts and state depradation control laws... is more than likely to eliminate any chance for genetic exchange to occur between subpopulations..."  While the opinion does cite record evidence in support of this conclusion, the court's ruling reflects a significant judicial second-guessing of the government agencies, in two respects.  First, it gives little credence to the the state wildlife agencies and their efforts to address the realities of wolf preservation.  Second, it dismisses the analysis by the U.S. FWS as to the sufficiency of state law, and does so based on genetics, an area clearly within the realm of FWS expertise.  Nevertheless, since this case is only at the preliminary injunction stage, the decision could simply reflect a Federal judge's  application of the precautionary principle.

In Right whale case, D.C. Circuit finds the District Court wrong, and Coast Guard ESA dispute coming soon


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Defenders of Wildlife v. Gutierrez, No. 07-5278 (July 18, 2008)

Photo of dead Right whale, towed by U.S. Coast Guard, from Coast Guard Right whales are mostly black in color, generally grow up to 45–55 feet in length, and can weigh up to 70 tons. Proposed Endangered Status for North Atlantic Right Whales, 71 Fed. Reg. 77,704, 77,705 (Dec. 27, 2006) (“Proposed Endangered Status”). Right whales are so named because, historically, they were considered the “right” (correct) whale to hunt due to their close proximity to coastlines, their relatively slow speed, the prized oils they contain, and the large volume of blubber that gives them a tendency to float when dead. Relatively recent population estimates show around 300 remaining right whales. Proposed Endangered Status, 71 Fed. Reg. at 77,705. Ship strikes are “the greatest source of known deaths” of right whales. Proposed Rule, 71 Fed. Reg. at 36,300.

SUMMARY (from Court opinion): This case concerns the North Atlantic right whale (Eubalaena glacialis) (“right whale”) and the role of National Marine Fisheries Service (“NMFS”) and the Coast Guard in the federal government’s efforts to protect the species from extinction. Appellants, composed of several environmental groups and one whale researcher, challenged NMFS’s denial of a petition for emergency rulemaking and the Coast Guard’s failure to consider the impact of some of its actions on the right whale. The district court granted summary judgment to the agencies. We affirm the district court’s grant of summary judgment to the agencies on the challenge to the petition denial but reverse its summary judgment order relating to the Coast Guard’s actions.

Federal Judge in Seattle finds he lacks jurisdiction over hatchery dispute along Cedar River


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Glasser v. National Marine Fisheries Service, Case 2:06-cv-00561-BHS, Document 80 (July 17, 2008)

Photo of stretch of the Cedar  River, by Seattle Public  Utilities, available online at the Habitat Conservation Plan info pages.

OPINION (by U.S. District Court Judge Benjamin H. Settle): "While the Court is concerned about the protection of threatened or endangered species, especially local salmon, it is without jurisdiction to hear Plaintiff’s claims because Plaintiff has failed to establish that she has standing to bring this action. Accordingly, Defendants’ Motions for Summary Judgment (Dkts. 74 and 75) are granted and Plaintiff’s Supplemental Complaint (Dkt. 54) is dismissed."

Temporary restraining order denied in Kootenai National Forest dispute over timber harvest and grizzly bears


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Alliance for the Wild Rockies v. U.S. Forest Service, U.S. Fish and Wildlife Service, Order, CV 07-150-M-DWM (D.Montana, June 26, 2008)

Photo of timber resources in Kootenai National Forest, by U.S. Forest Service.  

SUMMARY: Plaintiff challenges the U.S. Forest Service’s determination that the Northeast Yaak Project (the “Project”) in the Kootenai National Forest may affect, but is not likely to adversely affect, the grizzly bear, and the U.S. Fish & Wildlife Service’s concurrence with this determination.  Briefing is set to be completed on July 10, 2008. On June 16, 2008, Federal Defendants began implementing the Project with the commencement of logging activities for the "Joe Mama" timber sale. Plaintiff moves for a temporary restraining order and preliminary injunction to halt implementation of the Project pending the Court’s ruling on the parties’ cross motions for summary judgment.

RULING: "In this case, Plaintiff has failed to show a reasonable likelihood of future harm to the grizzly bear. Plaintiff’s motion for a temporary restraining order and preliminary injunction does not even discuss future harm. Plaintiff asserts logging will commence on the Joe Mama timber sale and lists roads that will be opened to accomplish the sale. Plaintiff, however, does not explain how these activities will harm the grizzly bear. Plaintiff alleges certain roads opened during implementation of a prior project in the Project area have not yet been closed and notes Federal Defendants’ no adverse effects determination was based on the closure of these roads...  Additionally, none of the timber units to be harvested in the next sixty days as part of the Joe Mama timber sale are in grizzly bear core habitat and only one-half mile of temporary road construction will occur during this time period. Harper Decl. ¶ 8. Because Plaintiff has made no allegations of immediate harm to the grizzly bear, its motions for a temporary restraining order and preliminary injunction are denied."

D.C. Circuit defers to FWS on hybrid westslope cutthroat trout analysis, clarifies supplementation of administrative record


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American Wildlands v. Kempthorne, No. 07-5179 (D.C. Cir. July 8, 2008)

Westslope cutthroat trout (WCT) have a number of morphological characteristics that scientists use to identify the fish, such as a distinctive spotting pattern, coloring, and a typical number of vertebrae, scales, and bony projections called “gill rakers.” However, “morphology” is an imperfect science.  WCT genetic data allows biologists to detect “introgression” — the “entry or introduction of a gene from one gene complex into another” — in fish that otherwise conform morphologically to the subspecies. In this case, Plaintiffs challenged the decision by the U.S. Fish & Wildlife Service not to list the species, and questioned the agency’s reliance on morphology, because FWS had recognized that “a natural population of WCT with less than 20 percent of its genes derived from (foreign subspecies) is, most likely, morphologically indistinguishable from nonintrogressed populations of WCT with no hybrid ancestry.”  However, the Service also concluded that low levels of introgression can occur as a result of the natural evolutionary process and that such fish may “remain very valuable to the overall conservation and survival of that species.” Ultimately, the Service acknowledged that the problem of hybridization “remains the greatest threat to WCT,” but in the absence of genetic information, continued to rely upon morphology, and decided that the severity of the threat did not require listing of the species at the time. See Reconsidered Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 68 Fed. Reg. 46,989 (Aug. 7, 2003).  Photo from Washington Department of Fish and Wildlife.  

   SUMMARY (from opening of court's opinion): The westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family — a phenomenon called hybridization — has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act.

    On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case. Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record.

Ninth Circuit en banc panel reverses itself, and reinvigorates judicial restraint, in timber harvest case with ESA implications


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The Lands Council and Wild West Institute v. Ranotte McNair and U.S. Forest Service, No. 07-35000, D.C. No. CV-06-00425-EJL (9th Cir. EN BANC July 2, 2008)

Photo of a stream flowing from Lower Ball Lake in the Selkirk Mountains, where the U.S. Forest Service Bonners Ferry Ranger District, and the Mission Brush Project at issue in this case, are located.  

SUMMARY: Over the past few years, the traditional standards for a preliminary injunction in Endangered Species Act cases seemed to changing, with the usual "sliding scale" test between likelihood of success on the merits and potential for irreparable harm giving way to a more murky approach in which ESA cases --  especially in the context of timber forests -- seemed to present nearly per se examples of irreparable harm.  In The Lands Council, a Ninth Circuit en banc panel decided "to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service."  Although a three-judge panel of this court reversed the district court’s decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007), the en banc panel vacated that decision and affirmed the district court.  The opinion is a worthwhile read for ESA practicioners in the Ninth Circuit, particularly for its discussion of preliminary injunction standards, and for its treatment of its own prior decisions.

Cedar City golf course incidental take permit for prairie dogs survives motion for preliminary injunction


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Wildearth Guardians v. FWS, CASE NO.  2:07-CV-837DB (C.D. Utah, June 23, 2008).

Prairie dogs are rodents, within the squirrel family, that occur only in North America.   The total species distribution was estimated to be 95,000 animals prior to control programs in the 1920's.  By the 1960's, distribution of the Utah prairie dog was greatly reduced due to disease, poisoning, drought, and human-related habitat alteration resulting from cultivation and poor grazing practices.  By 1972, it was estimated that there were 3,300 Utah prairie dogs, but survey counts conducted by the Utah Division of Wildlife Resources in the spring of 2004 reported 4022 adult Utah prairie dogs, which represents approximately half of the total population.  Photo and caption info from the FWS Utah Prairie Dog homepage

Plaintiffs alleged that the U.S. Fish and Wildlife Service issued incidental take permits (ITPs) to Cedar City, Utah, and the Paiute Indian Tribe in violation of the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). The ITPs authorize the live-trapping and relocation of Utah prairie dogs residing on a golf course and adjacent tribal lands.  Trapping is authorized during July-August each year for the duration of the permits.  The ITPs were issued in January 2007, and a full season of trapping occurred in the summer of 2007.  In April 2008, Plaintiffs moved for preliminary injunctive relief to prevent any trapping during the 2008 season.  Plaintiffs argued that there is a possibility that before a final ruling is issued all of the golf course prairie dogs could be removed and their burrows filled so as to prevent their return, but the Court found that Plaintiffs had failed to meet their burden of proving irreparable harm would occur, as explained in its June 23, 2008 ruling from the bench: "I just don't have any record evidence to satisfy that very important aspect of preliminary injunctive relief.  It is probably the most important reason we issue T.R.O.s and preliminary injunctions is to prevent irreparable harm.  I have not heard anything.  In fact, the fact that last year's take period was allowed to occur and that the take went forward under the auspices of the H.C.P. and the entire species was not wiped out."  The Court also denied a motion for stay pending appeal, and encouraged prompt briefing of the issues on the merits.

Ninth Circuit, following another D.C. decision, finds marbled murrelet 5-year review did not necessitate delisting the bird


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Coos County Board of County Commissioners v. Kempthorne, No. 06-35634, CV-06-06010-MRH (9th Cir., June 26, 2008)

Marbled murrelets — small, dove-sized birds — feed primarily on sea life and nest in coastal mature and old-growth forests. “e main cause of population decline has been the loss of older forest and associated nest sites,” in large part because of timber harvesting... Also, when murrelets leave the forest to feed at sea, they are threatened by gill-net fishing boats and by oil spills. Because murrelets do not reproduce every year and generally lay only one egg when they do, the species recovers slowly from population losses.  As a result of these various forces, murrelet populations crashed, from a historic estimate of 60,000 murrelets in California alone to today only 9,000 birds all together in California, Oregon and Washington.  Caption text from 9th Circuit opinion, photo of nesting murrelet from UC Berekely's Bessinger Lab Group.

SUMMARY: "We are asked to decide whether the Fish and Wildlife Service (“FWS”) has an enforceable duty promptly to withdraw a threatened species (the marbled murrelet) from the protections of the Endangered Species Act (the “ESA” or the “Act”), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty.

Despite FWS delays in completing grizzly bear delisting, U.S. District Court in Idaho upholds agency action


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Aland v. Kempthorne, MEMORANDUM ORDER, Case 1:08-cv-00024-EJL, Document 48, (D.Idaho June 25, 2008)

   BACKGROUND: Plaintiff, Robert H. Aland, has moved for summary judgment with regard to the Complaint’s tenth claim for relief, arguing that the Federal Defendants failed to satisfy a procedural requirement set forth in the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, when publishing the Grizzly Bear Final Agency Action on March 29, 2007 (the “Final Rule”). In the Final Rule, the U.S. Fish and Wildlife Service (“FWS”) determined that the greater Yellowstone National Park population of grizzly bears constituted a distinct population segment that warranted delisting as a threatened species under the ESA. The Federal Defendants, in turn, have filed a motion for partial summary judgment that challenges the merits of Plaintiff’s tenth claim for relief...  Under the tenth claim for relief, the Plaintiff contends that because the Defendants failed to publish the Final Rule regarding delisting within a one-year period after the date of the general notice, as required by the ESA, the FWS must start over with the delisting process. The Federal Defendants concede that the Final Rule was issued four and  one-half months after the one-year deadline expired but argue, first, that Plaintiff lacks standing to challenge the procedural irregularity and, in the alternative, that the untimely issuance of the Final Rule is not fatal to its effectiveness.

   RULING: The Court upheld Plaintiff’s standing to raise the tenth claim for relief.  "On the merits, however, the Plaintiff’s tenth claim fails under the case law. Contrary to Plaintiff’s insistence, the one year time frame for listing, downlisting or delisting a species is not a mandatory deadline. The Ninth Circuit has examined this very question and expressly concluded that there is no 'specific indication that Congress intended the time frame to serve as a bar.' Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995). Thus, 'the passage of time does not render FWS's conduct arbitrary and capricious' and summary judgment must be granted in favor of the Federal Defendants on Plaintiff’s tenth claim for relief. See id. at 1401."  In addition, sticking to the basic principles of judicial review based on an administrative record, the Court held that Plaintiff “ha[s] not made the requisite showing for discovery outside the administrative record,” but otherwise rejected the Federal request for consolidation with another case, finding that "consolidation is not appropriate at this
time. The Court may, however, revisit the matter."

Photo by Dr. Christopher Servheen, U.S. Fish and Wildlife Service

Temporary restraining order denied, but another vernal pool dispute continues in the City of Redding, California


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