Five cases, four federal publications, and twenty species: catching up on recent Endangered Species Act events
My newborn will arrive any day now, but the least I can do for my readers is a quick round-up of recent ESA news, caselaw, and announcements that I've been tracking.
The Pacific Legal Foundation is celebrating a settlement in which the U.S. Fish & Wildlife Service agreed to consider, by July 30, 2010, the Riverside County Farm Bureau's petition to delist the Stephens Kangaroo Rat. PLF's victory with the one critter may soon be offset by a new wave of litigation. In Wildearth Guardians v. Salazar, Civil Action No. 09-cv-1893, 2009 WL 6443120 (S.D.Tex., Dec. 7, 2009), the court rejected a motion to dismiss alleging that FWS had unreasonably delayed the completion of a recovery plan for the jaguarundi. Plaintiffs alleged that an existing 1990 document failed to meet the ESA's recovery plan criteria, and the Court rejected the federal defendants' argument that the statute of limitations had expired. Get ready for copycat lawsuits against FWS and NOAA alleging a failure to complete adequate recovery plans.
In Florida and Montana, the endless litigation added new chapters. In Miccosukee Tribe v. U.S. Fish & Wildlife Service, Case No. 05-23045-CIV-MOORE/SIMONTON, 22 Fla. L. Weekly Fed. D259a (S.D. Fla. Mar.19, 2010), the Tribe filed a motion to enforce a mandate from the 11th Circuit decision above, and the District Court held that the amended incidental take statement was invalid in part, because it used habitat markers instead of numerical triggers to measure Cape Sable seaside sparrows, but also held that the ITS was valid as to snail kites and wood storks, because the ITS adequately demonstrates why using a numerical trigger to measure incidental take as result of water management actions was impractical. In Rock Creek Alliance v. U.S. Forest Service, Nos. CV 05-107-M-DWM, CV 08-028-M-DWM, 2010 WL 1872864 (D.Mont., May 4, 2010), Plaintiffs challenged a 2006 biological opinion on a federally authorized mining project, alleging that the determinations in the 2006 Biological Opinion were arbitrary and capricious because the grizzly bear analysis relied in part upon the future acquisition of mitigation habitat land. U.S. District Court Judge Molloy sharply disagreed: "Plaintiffs do not directly assail the rationality of the 'no jeopardy' conclusion, attempting instead to undermine the agency's reasoning by isolating a single aspect of the mitigation plan and arguing on the margins about how much stock the agency placed in it. The argument is incomplete as well as inaccurate."
Perhaps the biggest news came from California in the Sacramento Bay Delta litigation. In The Consolidated Salmonid Cases, No. 1:09-cv-1053 OWW DLB, : 2010 WL 2011016 (E.D.Cal., May 18, 2010), Judge Wanger issued his Findings of Fact and Conclusions of Law Re: Plaintiffs Request for Preliminary Injunction after considering the claims by water users that the implementation of reasonable and prudent alternatives in a 2009 biological opinion would irreparably harm them. Finding that an injunction of the salmonid protection measures -- which in turn created water supply and irrigation cutbacks -- was warranted, the opinion noted that "The stakes are high, the harms to the affected human communities great, and the injuries unacceptable if they can be mitigated," and further held that "Injunctive relief cannot be imposed without up-to-date evidence of the status of the species to assure that altered operations will not deepen jeopardy to the affected species or otherwise violate other laws." The pendulum has swung. See Association of California Water Agencies, Pacific Legal Foundation blog. After another hearing, Judge Wanger issued an order allowing more water use. See WTOP.com. However, the swing of the delta pendulum may be brief. In Coalition for a Sustainable Delta v. FEMA, Case No. 1:09-CV-2024 OWW DLB, 2010 WL 1904824 (E.D.Cal., May 10, 2010), Judge Wanger granted leave to amend a complaint. Embracing a strategy familiar to the Key Deer and the Conch Republic, the Plaintiffs now allege that FEMA's administration of the National Flood Insurance Program encourages development in the Delta, which adversely affects four species listed as threatened or endangered under the Endangered Species Act (“ESA”): the delta smelt, the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, and the Central Valley steelhead (collectively the “Listed Species”). Plaintiffs further allege that FEMA is administering the NFIP in violation of ESA Section 7, which requires federal agencies to insure that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. See 16 U.S.C. §1636(a)(2).
Finally, in recent pages of the Federal Register:
- FWS announced the reopening of the comment period on a proposed rule to designate critical habitat for Ambrosia pumila (San Diego ambrosia), see 75 Fed. Reg. 27690 (Tuesday, May 18, 2010);
- FWS announced intent to prepare a draft environmental impact statement (EIS) to evaluate the impacts of several alternatives relating to the proposed issuance of an Endangered Species Act Permit to EverPower Wind Holdings, Inc., its subsidiary Buckeye Wind LLC, and its affiliates (applicant) for incidental take of the Indiana bat (Myotis sodalis), a Federal endangered species, from activities associated with the construction and operation of a wind power project in Champaign County, Ohio. 75 Fed. Reg. 29575 (Wed., May 26, 2010);
- NOAA proposed to affirm the Endangered Species Act (ESA) status for the Oregon Coast (OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) by promulgating a rule that will supersede a prior February 11, 2008, listing determination for this ESU. 75 Fed. Reg. 29489 (Wednesday, May 26, 2010);