Endangered Species Law & Policy

Two stories covered in recent news highlight the challenges associated with integrating scientific information into public policy, including in the arena of agency decision-making respecting threatened and endangered species.  One, available here (The Observer, Feb. 18, 2012, by Robin McKie), covered the annual meeting of the American Association for the Advancement of Science (AAAS).  At that meeting, AAAS President and accomplished biologist Nina Fedoroff expressed profound dismay about what she perceives as a growing anti-science movement.  As was reported in The Observer, "[certain] institutions, acting as covers for major energy corporations, are responsible for the onslaught that has deeply lowered the reputation of science in many people's minds in America. This has come in the form of personal attacks on the reputations of scientists and television adverts that undermine environment laws."  The archetype example of the anti-science movement in action, according to sources cited in the article, is the debate over the scientific basis for the theory of anthropogenically generated climate change.

A second story, available here (Los Angeles Times, Feb. 22, 2012, by Neela Banerjee), covered the admission by Dr. Peter Gleick, President of The Pacific Institute, that he lied to obtain documents regarding climate change from The Heartland Institute.  As the Los Angeles Times reported, "[a] noted California scientist and environmental activist has admitted that he assumed a false identity to obtain and distribute internal documents from a libertarian group that questions climate change."  Dr. Gleick apologized for his actions explaining he was frustrated by attacks upon climate change science and scientists.  It is unclear how his actions may affect Dr. Gleick's professional life though it appears likely to have adverse consequences.  Fox News reports that "[t]he Task Force on Scientific Ethics for the well-respected American Geophysical Union has quietly expunged the name of committee chairman Peter H. Gleick from its website."

U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process actually resulted in any delay to any National Fire Plan project.

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of ...

On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy.  This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations.  That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).  

The Corps' policy calls for a vegetation ...

As the Department of Fish and Game(DFG)  reported, at its February 2012 meeting the California Fish and Game Commission "moved to list the Sierra Nevada yellow-legged frog (Rana sierrae) as a threatened species and the southern mountain yellow-legged frog (R. muscosa) as an endangered species."  The latter is listed (pdf) as endangered under the federal Endangered Species Act (ESA), and a final rule (pdf) designating critical habitat for the species was promulgated in 2006.  The former is a candidate for listing under the federal ESA.

According to DFG, "Mountain yellow-legged frogs ...

At its February 2012 meeting, the California Fish and Game Commission unanimously rejected a recommendation by the California Department of Fish and Game, National Marine Fisheries Service, and U.S. Fish and Wildlife Service to initiate environmental review of a staff report and proposal (pdf) jointly developed by those agencies to alter the striped bass sport-fishing regulations in order to reduce predation by non-native striped bass on native species that are listed under the federal Endangered Species Act (ESA).  In addition to the three state and federal wildlife ...

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking ...

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

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr ...

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

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

For almost 50 years ...