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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.

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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.

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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.

Two Ninth Circuit Opinions, Twenty Years of Litigation, and a Twinge of Deja Vu

03/15/2012

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Two separate Ninth Circuit opinions, filed on the same day, offer important lessons for Endangered Species Act watchers. The first one reminded us that Congress can choose to repeal our environmental laws. The second one reminded us why Congress would make such a choice.

In Alliance for the Wild Rockies v. Salazar, the 9th Circuit upheld, as constitutional, Section 1713 of the 2011 Appropriations Act. That historic (or depending upon your perspective, infamous) provision ordered the Secretary of the Interior to remove some distinct population segments of gray wolves from the Endangered Species Act's protections. Attempting to reverse the Congressional decision, the environmental advocacy groups raised separation of powers concerns. In other words, they claimed that while the executive was implementing the issues, and the courts were adjudicating the issues, Congress could not interfere by forcing the court to rule a certain way. But Congress was no so daft. Instead, Section 1713 provides in its entirety as follows:

"Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010."

Reading this language, the 9th Circuit recognized that "Congress had changed the law, not told the Court that it should decide the case differently under the same law." Defeat of the separation of powers argument was predictable, based on Supreme Court precedent.  Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), considered and upheld the constitutionality of an appropriations provision that 'amended' or changed the applicable environmental laws. Still, even though this constitutional analysis was fairly predictable, Alliance for the Wild Rockies remains noteworthy for its explanation of the course of events that led to the decision:

"Over the last decade, the United States Fish and Wildlife Service (“FWS”) has repeatedly attempted to remove all or parts of the distinct population of gray wolves in the northern Rocky Mountains from the protections of the ESA. These efforts have been struck down by the courts for violating the ESA. See, e.g., Defenders of Wildlife v. Sec’y, U.S. Dep’t of Interior, 354 F. Supp. 2d 1156 (D. Or. 2005); Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008). In 2009, the agency issued what is known as the “2009 Rule,” 50 C.F.R. Part 17, 74 Fed. Reg. 15,123. It designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except those in Wyoming. The district court struck down the 2009 Rule as violating the ESA because the statute does not permit partial delisting of a distinct population segment. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).... Meanwhile, proponents of the 2009 Rule began exploring ways to delist the gray wolves through legislation. These efforts culminated in Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which the President signed into law on April 15, 2011. Pub. L. 112-10, 125 Stat. 38 (2011). Section 1713 orders the Secretary of the Interior to reissue the 2009 Rule without regard to the ESA and without judicial review."

These eight sentences, summarizing ten years of litigation, hint at the pent up frustration that led to the delisting of an iconic species. Regardless of whether the litigants and jurists were right or wrong, the simple fact was that they repeatedly stymied the executive branch from implementing its policy desires. Congress then made sure that its voice was heard in the process, reforming the implementation of the ESA.

The facts of a contemporaneous Ninth Circuit ruling in Turtle Island Restoration Network v. Department of Commerce seem hauntingly familiar.  The effects of the Western Pacific Fishery on sea turtles has been the subject of extensive regulation, and litigation, for a decade -- just like the wolf. See, e.g. Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 940 (9th Cir. 2006). In a Final Rule published in 2009, amended in 2010, and passed after substantial process by and input from the Western Pacific Fishery Management Council, the National Marine Fisheries Service modified applicable Fishery regulations, seeking to optimize the Fishery’s yield without jeopardizing the continued existence of sea turtle species. But after yet another round of litigation with the environmental advocates, the federal defendants' settled the dispute. Over the objections of the longline fishery advocates, the Consent Decree ordered by the U.S. District Court vacated portions of the Final Rule, reinstated lower incidental loggerhead turtle take limits from a 2004 biological opinion, and ordered NMFS to promulgate a new regulation. See 76 Fed. Reg. 13,298 (March 11, 2011)(announcement complying with court order.) As the Ninth Circuit explained, "the practical effect of the district court’s order is not to affect the Final Rule... except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits."  Or as it explained again, later in the opinion, "the Consent Decree merely temporarily restores the status quo ante pending new agency action and does not promulgate a new substantive rule."

The Ninth Circuit's analysis may be entirely correct, and the Consent Decree, as agreed upon by the federal defendants and the environmental advocates, might be entirely reasonable. But as the longliners argued, the Consent Decree nullified the prior process. Using the Endangered Species Act, the Turtle Island Restoration Network successfully reversed the outcome of the multi-party rulemaking before the fishery management council. Moreover, that is precisely what the ESA intends to do; to serve as last resort for desperate species. So, rejecting the procedural concerns of the longliners, the Ninth Circuit emphasized its preference for empowering the courts to allow parties to settle. Congress and the longliners, however, might view the facts differently, emphasizing the need for  the reasonable policy outcomes of rulemaking to be retained. Will we be reading another decision, a few years from now, about an appropriations provision that reverses Turtle Island, and that reinstates the 2009 Final Rule?

History could easily repeat itself -- or at least echo.

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Longline fishing for swordfish is called shallow-set fishing because the bait is set at depths of 30 to 90 meters.  Inevitably, the fishery will interact with sea turtles, and  entangle them in the fishing nets and gear. Closing turtle-rich waters to American fishermen, however, is a poor solution, because other nations continue longline operations without the use of turtle-friendly gear. With an eye towards international advocacy of best fishing practices, NOAA worked with fishermen, gear specialists and academic partners to develop new longline fishing practices. In 2004, to reduce incidental take of sea turtles, new regulations for the longline shallow-set fishery mandated the use of large circle hooks, the use of mackerel-type bait, a limit of 2120 shallow-sets per year, annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and 100% observer coverage on every swordfish-vessel fishing. Those rules were amended in 2009 by removing the set limit and increasing the allowable loggerhead interaction hard cap from 17 to 46. On March 14, 2012, the 9th circuit upheld a U.S. District Court order  and Consent Decree vacating that 2009 rule. (Photo from NOAA, caption info from Ninth Circuit's Turtle Island opinion.)

____

Keith W. Rizzardi, a Florida lawyer, teaches at St. Thomas University in Miami Gardens, practices law at Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, and tracks the Endangered Species Act on twitter @ESAlawyer.

9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity

07/31/2011

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Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. §228.4(a) (2004).  

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.

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SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes...  The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.

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

03/28/2011

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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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Image from biggovernment.com an

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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Image from BuzzAboutFood.com

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

12/12/2010

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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.

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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.

SEE ALSO:
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Remember: if you have thoughts or comments, please send them to esablawg@gmail.com

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

11/25/2010

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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.

SealionEatSalmonNOAA.jpg
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

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

11/10/2010

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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.

grazing.gif
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 Circuit Courts: 1st on Canada Lynx, 9th on Vernal Pool critical habitat

10/24/2010

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ANIMAL WELFARE INSTITUTE v. MARTIN, No. 09-2643, 2010 WL 4104633 (1st Cir, Oct. 20, 2010).
    BACKGROUND: This appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species. Plaintiffs argued this relief was necessary to prevent incidental takes of lynx in these traps. See 50 C.F.R. § 17.3 (defining incidental taking). The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. We affirm.
    EXCERPT: ...the district court held that Maine's previous, now-replaced Conibear trap regulations did pose a mortal risk to at least some Canada lynx, and the district court issued an injunction, forcing Maine to amend its regulations immediately. AWI I, 588 F.Supp.2d at 109. The district court thus engaged in exactly the fact-sensitive analysis required by law.

***

HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA v. UNITED STATES FISH AND WILDLIFE SERVICE, No. 07-16732, 616 F.3d 983 (9th Cir., Aug. 9, 2010).
    BACKGROUND: Industry groups filed action against United States Fish and Wildlife Service (FWS) with regard to its designation of about 850,000 acres of land as critical habitat for 15 endangered or threatened vernal pool species. Conservation groups intervened as defendants in support of designation. The United States District Court for the Eastern District of California, William B. Shubb, J., upheld that designation. Plaintiffs appealed.
    HOLDINGS: The Court of Appeals, Pallmeyer, District Judge, sitting by designation, held that: (1) all elements essential for conservation of species did not have to be present in same area to designate land as critical habitat; (2) FWS could determine what elements were necessary for conservation without determining exactly when conservation would be complete; (3) requirement for determination of criteria for measuring when species would be conserved applied only to preparation of recovery plan; (4) area designated as “critical habitat” that met requirements for unoccupied habitat also met requirements for occupied habitat; (5) explicit textual exclusion of structures from designation satisfied ESA's requirement that “specific areas” be designated; and (6) economic analysis from outside consultant properly accounted for economic impact of designation. Affirmed.

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

09/25/2010

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CENTER FOR BIOLOGICAL DIVERSITY v. UNITED STATES DEPARTMENT OF THE INTERIOR, No. 07-16423, 2010 WL 3704200 (9th Cir., Sept. 23, 2010)(Before DOROTHY W. NELSON, WILLIAM A. FLETCHER and RICHARD C. TALLMAN, Circuit Judges).

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.

AsarcoMine.jpg
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.
 

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

08/31/2010

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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.

steelheadTroutSalmon.jpg
This case turned upon the distinctions between the steelhead (above from AlaskaSalmon.com) and rainbow trout, (below from oldtrout.ca) 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.
RainbowTrout.jpg

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

08/31/2010

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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).

SUMMARY:
   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.

FACTUAL BACKGROUND:
   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.

SebastMeadowfoam.jpg
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

EXCERPT RE: CHEVRON STEP ONE:
   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).

EXCERPT RE: CHEVRON STEP TWO:
   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.”

EXCERPT RE: JUDICIAL CONSTRUCTION OF SECTION 9(a)(2)(B):
   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."

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

08/01/2010

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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?  

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

06/13/2010

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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...

MexicanSpottedOwlZion.jpg
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.

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

06/07/2010

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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.

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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.

Ninth Circuit defers to U.S. Forest Service Record of Decision, even without a biological opinion

11/18/2009

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Alliance for the Wild Rockies v. U.S. Forest Service, No. 08-35841, 2009 WL 3600522 (9th Cir. Nov. 2, 2009)

BACKGROUND: On April 16, 2007, Forest Supervisor Paul Bradford signed the Northeast Yaak Record of Decision (ROD) to implement "Alternative C" with Modifications. This project includes fuels reduction and other vegetation management, wildlife habitat improvement, watershed rehabilitation, and access management changes on the Three Rivers Ranger District. See Kootenai National Forest. The analysis area contains approximately 10,046 acres in designated old growth management areas including habitat for the Grizzly Bear, Gray Wolf, Bald Eagle, Peregrine Falcon, Elk, White-tailed Deer, Mountain Goat and Pileated Woodpecker.

RULING: To the extent the appeal can be read to encompass the adequacy of consultation with respect to the 1987 Forest Plan as applied in 2007, we believe that the decisional documents for the Northeast Yaak Project--the 2007 ROD, the 2007 Supplemental Biological Assessment, and the Final Supplemental Environment Impact Statement--are sufficient to warrant deference. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir.2006); Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir.2009) ("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 agencies are not obliged to adopt specific findings of any particular study; rather, "consideration" suffices. Kern, 450 F.3d at 1081. Here, both the 1997 Wakkinen Study and mortality data from 2000-2005 were "considered." As the Forest Service took note of the Wakkinen Study as well as new evidence of bear mortality, and its human causes--and the Alliance points to no data that was omitted from consideration--we cannot conclude that its final action was arbitrary and capricious. See Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc).

KEITHINKING: An unusualy deferential opinion, the Court accepted the U.S. Forest Service's analysis, even without an FWS biological opinion.  However, the decision was "not for publication in West's Federal Reporter" and thus, can be cited as only persuasive authority.  Also, the opinion included a dissent saying that the Federal Defendants failed to consider the best available science and most recent 2007 data.

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

05/19/2009

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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.

FlatTailedHornedLizard.jpg
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.
 

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

05/18/2009

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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.

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

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

03/16/2009

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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.

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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.

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

9th Circuit finds conservation groups have standing to challenge treaty

10/22/2008

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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."

TreatySigning.jpg
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 PSC.org

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

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

10/11/2008

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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.

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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...

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

08/06/2008

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

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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.  

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

07/07/2008

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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)

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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.

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

06/27/2008

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

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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.

Ninth Circuit opinion (unpublished) tackles analysis of troublesome ESA provisions in cutthroat trout case

04/21/2008

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Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 06-35080, D.C. No. CV-05-00165-KI (9th Cir. April 18, 2008)

In an unpublished opinion, the Ninth Circuit affirmed in part, reversed in part, and remanded a District Court order upholding a decision by the U.S Fish and Wildlife Service not to designate the Southwestern Washington/Columbia River (“SWW/CR”) Distinct Population Segment (“DPS”) of the Coastal Cutthroat Trout (“CCT”) as threatened under the Endangered Species Act (“ESA”), 16 U.S.C. §§1531–1544.

EXCERPTS:

Distinct Population Segment analysis upheld

Upon review of the record, we are satisfied that FWS’s determination that this DPS of the CCT is not threatened in the LCR was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)...   while FWS’s decision lacks perfect clarity at some points, overall it did consider the evidence before it and the required factors and determined that the DPS is not threatened in the LCR as such. A mere lack of “‘ideal clarity’” is not sufficient to cause us to overturn FWS’s actions where, as here, “‘the agency’s path may reasonably be discerned.’” Beno v. Shalala, 30 F.3d 1057, 1073–74 (9th Cir. 1994)

Significant Portion of the Range analysis remanded

In contrast, the FWS did not properly consider whether the estuary and other marine areas constitute a significant portion of the range of this DPS...  because the agency’s own reasoning recognizes the danger to the estuary and marine areas and the importance of those areas, FWS was required to consider whether those areas constituted a significant portion of the range. See Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 (9th Cir. 2001).  Although the agency now argues that the areas are not a significant portion, we can only consider what the agency did, not what it could have done. Thus, the appropriate analysis had to be made in the agency’s decision. Its absence makes the ultimate decision arbitrary, and requires us to remand.

COMMENTARY:

ESA can allow listing of the distinct population segment of a subspecies

In a footnote, the Ninth Circuit also addressed an issue repeatedly raised by intervenors from the building industry association.  Specifically, the Court held that "We have not overlooked BIAW’s assertion that the ESA does not authorize listing of a DPS of a subspecies. However, FWS has interpreted the ambiguous language of 16 U.S.C. § 1532(16) to allow just such a listing. See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4724 (Feb. 7, 1996). Because that is a permissible construction of the statute, we must accord it deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45 (1984); Nw. Ecosystem Alliance, 475 F.3d at 1143. Thus, we reject BIAW’s attack."

Also disappointing, this important Ninth Circuit holding is not even acknowledged on the Court's own webpages.  Some parties continue to get less justice than others.  See also, ESAblawg re: unpublished caselaw.

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Photo of the coastal cutthroat trout from FWS 2005 symposium webpages, with many relevant species links

OTHER RESOURCES

Mootness still lives in the Ninth Circuit

12/27/2007

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Center for Biological Diversity v. Lohn, 2007 WL 4532197, Case No. 05-35638(9th Cir. Dec. 27, 2007)(where agency already listed a species -- the very relief sought by a plaintiff -- the plaintiff could not escape the mootness doctrine by opposing the methods by which the listing decision was reached, and no case or controversy existed, and no exception to the case or controversy doctrine applied.)

    BACKGROUND: In 2002, the National Marine Fisheries Service (NMFS) or Service issued a proposed ruling that concluded listing the Southern Resident population of killer whales was “not warranted” because the Southern Resident was not “significant” to its taxon.  The Center for Biological Diversity challenged that decision, and in 2003 the district court (W.D.Wash.) set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under the Service’s “distinct population segment” policy.  The Service contended that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species.  CBD, however, still opposed the action because it applied the DPS policy

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Image of southern resident population orcas from NMFS

    RULING: The Service’s issuance of a final rule listing the Southern Resident as an endangered species rendered this case moot.
    First, the Ninth Circuit held that it could not offer injunctive relief, because the Service had issued its final rule listing the Southern Resident as an endangered species.  See Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (“Where the activities sought to be enjoined have already occurred, and the appellate courts cannot undo what has already been done, the action is moot.”).
    Second, the Ninth Circuit held that Declaratory relief could not address any live controversy.  "That the DPS Policy might adversely affect the Southern Resident’s endangered species status or the Service’s listing determination of certain other killer whale populations at some indeterminate time in the future is too remote and too speculative a consideration to save this case from mootness."
    Finally, the Court rejected all exceptions to the mootness doctrine.  The Ninth Circuit rejected  the “collateral legal consequences” exception, citing Burrell, 415 F.3d at 999 (holding that a party “may not invoke as an exception to the mootness doctrine the specter of continuing legal harm from res judicata or collateral estoppel arising from his mooted claims when such harm is merely hypothetical and speculative”).  The Court further held that the action, even if capable of repetition, would not evade review, because the Service’s application of the DPS Policy to deny a petition to list a species as endangered, the alleged injury here, is not “a type inherently limited in duration such that it is likely always to become moot before federal court litigation is completed.”  Finally, since the Service issued the final rule listing the Southern Resident as an endangered species after reexamining the listing petition, as ordered by a district court, the Ninth Circuit held that the “voluntary cessation” exception to mootness does not apply.

    The complete opinion can be found online through the website of the Ninth Circuit.
Full Disclosure: during his tenure with the U.S. Department of Justice, the author participated as counsel in this matter.

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Keith Who?

Keith W. Rizzardi, a Florida lawyer, is board certified in State & Federal Administrative Practice. A law professor at St. Thomas University near Miami and Special Counsel at Jones Foster Johnston & Stubbs in West Palm Beach, he previously represented the U.S. Department of Justice and the South Florida Water Management District. A two-time Chair of The Florida Bar Government Lawyer Section, he currently serves as Chair of the Marine Fisheries Advisory Committee

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The experience & skills discussed in links below were not reviewed or approved by The Florida Bar. The facts and circumstances of every case are different; each one must be independently evaluated by a lawyer and handled on its own merits. Cases and testimonials may not be representative of all clients’ experience with a lawyer. By clicking the links below, you acknowledge the disclaimer above.

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16 U.S.C. §1531 et. seq.

"The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."

16 U.S.C. §1531(a)

The purpose of the Endangered Species Act is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

16 U.S.C. §1531(b)

Reasons for the ESA

1. ECOLOGICAL: Species have a role in the web of life. Who knows which missing link causes the collapse?

2. ECONOMICAL: Species have actual, inherent, and potential value -- some as food, others as tourist attractions. As Congress said, these species have "aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation." 16 U.S.C. §1531(a).

3. MEDICAL: Although perhaps a subset of economics, medical reasons for the ESA deserve special note, because today's listed species could be tomorrow's cure for cancer.

4. MORAL: With each extinction, we take something from others. We must prevent "the tragedy of the commons."

5. THEOLOGICAL: Even the Bible instructed Noah to save God's creatures, male and female, two by two.

Reasons for ESA Reform

1. ECOSYSTEM (MIS)MANAGEMENT. The ESA encourages selective review of individual species needs, even though nature pits species needs against one another. Furthermore, the ESA's single-species focus detracts from efforts to achieve environmental restoration and ecosystem management.

2. SCIENTIFIC UNCERTAINTY: While the ESA requires consideration of the "best available science," sometimes the best is not enough, forcing decisions under great uncertainty. The ESA, however, is generally proscriptive, regulatory, and absolute; as a result, it insufficiently allows for adaptive management.

3. LITIGATION: ESA implementation is at the mercy of the attorneys. Cases involving one listed species can serve as a proxy for hidden agendas, especially land use disputes, and regardless of actual species needs, litigation and judicial orders set agency priorities. In the end, realistic solutions disappear amidst court-filings, fundraising, and rhetoric.

4. PRIVATE LANDS: Up to 80% of ESA-listed species habitat is on privately owned lands. While the ESA can place reasonable restrictions on private property rights, there are limits. But the best alternatives have limits too, such as Federal land acquisition and the highly controversial "God Squad" exemptions.

5. FUNDING: Protecting species is expensive, but resources appropriated by Congress are limited. An overburdened handful of federal agency biologists cannot keep pace with the ESA's procedural burdens, nor court-ordered deadlines (see #3 above). Provisions requiring agencies to pay attorney's fees to victorious litigators -- who challenge the hastily written documents prepared by overworked bureaucrats -- simply exacerbate the problem.

"Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of the larger assemblage." An insect with no apparent commercial value may be the favorite meal of a spider whose venom will soon emerge as a powerful and profitable anesthetic agent. That spider may in turn be the dietary staple of a brightly colored bird that people, who are notoriously biased against creepy crawlers and in favor of winsome winged wonders, will travel to see as tourists. Faced with the prospect that the loss of any one species could trigger the decline of an entire ecosystem, destroying a trove of natural and commercial treasures, it was rational for Congress to choose to protect them all. -- Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1274-75 (11th Cir.2007), cert. denied, 128 S.Ct. 8775 (2008), quoting Edward O. Wilson, The Diversity of Life 308 (1992).

"This case presents a critical conflict between dual legislative purposes, providing water service for agricultural, domestic, and industrial use, versus enhancing environmental protection for fish species whose habitat is maintained in rivers, estuaries, canals, and other waterways that comprise the Sacramento-San Joaquin Delta… This case involves both harm to threatened species and to humans and their environment. Congress has not nor does TVA v. Hill elevate species protection over the health and safety of humans... No party has suggested that humans and their environment are less deserving of protection than the species. Until Defendant Agencies have complied with the law, some injunctive relief pending NEPA compliance may be appropriate, so long as it will not further jeopardize the species or their habitat." -- The Consolidated Delta Smelt Cases, 2010 WL 2195960 (E.D.Cal., May 27, 2010)(Judge Wanger)(addressing the need for further consideration of the human consequences of ESA compliance).

Notable quotables

"A nation, as a society, forms a moral person, and every member of it is personally responsible for his society." – Thomas Jefferson (1792)

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"The destruction of the wild pigeon and the Carolina parakeet has meant a loss as sad as if the Catskills or Palisades were taken away. When I hear of the destruction of a species, I feel as if all the works of some great writer had perished."

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"Conservation means development as much as it does protection. I recognize the right and duty of this generation to develop and use the natural resources of our land; but I do not recognize the right to waste them, or to rob, by wasteful means, the generations that come after us." – Theodore Roosevelt (Aug. 31, 1910)

Noah's orders

GENESIS, Chapter 6: [v 20] "Of the birds according to their kinds, and of the animals according to their kinds, of every creeping thing of the ground according to its kind, two of every sort shall come in to you, to keep them alive. [v 21] Also take with you every sort of food that is eaten, and store it up; and it shall serve as food for you and for them."

GENESIS, Chapter 9: [v12] "And God said, This is the token of the covenant which I make between me and you and every living creature that is with you, for perpetual generations"

"The power of God is present at all places, even in the tiniest leaf … God is currently and personally present in the wilderness, in the garden, and in the field." – MARTIN LUTHER