Endangered Species Law & Policy

Although there were some notable downperiods when it came to Endangered Species Act news over the past twelve months, the past few weeks have been anything but slow.  Below are a few of the more recent newsworthy items that have rolled off the presses:

December 11, 2014 - U.S. Fish and Wildlife Service issues a final rule listing the rufa red knot (Calidris canutus rufa) as a threatened species.  The rufa red knot is a migratory shorebird that breeds in the Canadian Artic, and winters in parts of the United States, the Carribean, and South America.  The final rule states that the ...

As we reported here, on October 6, 2014, a number of public water agencies and other entities that represent agricultural and municipal water users in California filed a petition for writ of certiorari with the U.S. Supreme Court.  The petition was filed after a divided panel of the United States Court of Appeals for the Ninth Circuit issued a decision affirming a biological opinion issued by the U.S. Fish and Wildlife Service with respect to continuing operations of the federal Central Valley Project and State Water Project. The panel held that the biological opinion and ...

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only inhabits the state of Utah.  See People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Serv., Case No. 2:13-cv-00278 (pdf).  In 2012, the Service issued a revised special rule pursuant to section 4(d) of the Endangered Species Act (ESA) that authorized take of the species by permit only on agricultural lands, [private property] within [.5 ...

On October 23^rd the Federal District Court for the Western District of Washington upheld the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program’s (NFIP) compliance with a 2008 reasonable and prudent alternative (RPA) stemming from previous litigation.  The National Wildlife Federation initially challenged the program for its impacts on endangered Pacific Northwest Chinook salmon, Puget Sound steelhead, Hood Canal chum salmon, and Southern Resident killer whales in National Wildlife Federation v. Federal Emergency Management Agency, 345 ...

Recently, two separate petitions were filed with the U.S. Supreme Court seeking review of the Ninth Circuit’s decision in San Luis and Delta Mendota Water Authority v. Jewell, a case involving a challenge to the biological opinion and reasonable and prudent alternative issued by the U.S. Fish and Wildlife Service regarding continuing operations of the Central Valley Project and State Water Project in California. The two projects provide water to over 20 million Californians.

One petition (pdf) was filed on behalf of Stewart & Jasper Orchards, Arroyo Farms, and King Pistachio ...

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo ...

Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.

For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia ...

On May 12, 2014, Appellees Kern County Water Agency, Coalition for a Sustainable Delta, State Water Contractors, and Metropolitan Water District of Southern California filed a petition for rehearing en banc, seeking further review of the recent Ninth Circuit decision relating to the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. San Luis & Delta-Mendota Water Authority v. Jewell, No 11-1587 (9th Cir. March 13, 2014). Two other petitions for rehearing en banc ...

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient in light of its statutory duty and its own internal guidelines setting forth a timetable for recovery planning.

In Friends of the Wild Swan v. Ashe, 2014 U.S. Dist. LEXIS 65378 (D. Mont. 2014), plaintiffs ...

On May 7, 2014, a U.S. District Court for the Eastern District of North Carolina enjoined (pdf) coyote hunting in five North Carolina counties that provide a recovery area for the red wolf (Canis rufus), a species listed as endangered under the Endangered Species Act (ESA). In Red Wolf Coalition v. North Carolina Wildlife Resources Commission, No. 2:13-CV-60-BO (N.D.N.C. May 7, 2014), plaintiffs sought to enjoin the North Carolina Wildlife Resources Commission (Commission) from issuing permits for coyote hunting in an area spanning 1.7 million acres. The land serves as a recovery ...

In Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-00431, environmental groups challenged the operation of the Sandy Hatchery along the Columbia River in Portland, Oregon. Among other things, plaintiffs argued that operation of the hatchery violates the Endangered Species Act (ESA) by causing take of listed fish species, including the Lower Columbia River Chinook, Lower Columbia River coho, Columbia River chum, and Lower Columbia River steelhead. Plaintiffs alleged the hatchery causes take due to competition from hatchery fish, introduction of ...

On August 20, 2013, the U.S. Court of Appeals for the District of Columbia held (pdf) that appellants’ claims against the U.S. Fish and Wildlife Service (Service) for an alleged failure to take certain actions under the Endangered Species Act (ESA) with respect to the straight-horned markhor (Capra falconeri jerdoni) were moot. 

In 1976, the Service classified the markhor as endangered under the ESA. The species’ primary habitat is the Torghar Hills along the Pakistan-Afghanistan border. In response to the reduction of the markhor population, local tribal leaders formed ...

In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico.  The press release states that under the two agreements the Fish and Wildlife Service will increase the wolf's recovery territory, stop capturing wolves entering the two states from Mexico, and finalize a rule to allow direct release of Mexican gray wolves into New Mexico.  Under one of the ...

On July 22, 2013, the U.S. District Court for the Western District of Washington held (pdf) that plaintiffs’ claims regarding the U.S. Fish and Wildlife Service’s (Service) alleged violation of section 10 of the Endangered Species Act (ESA) were not subject to the 60 day notice of intent to sue (NOI) requirement.

In 1997, the Washington Department of Natural Resources (DNR) adopted a habitat conservation plan to govern logging in the forests of southwest Washington.  The marbled murrelet (Brachyramphus marmoratus) is one of a number of endangered and threatened species covered ...

The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA).  We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here.  At the same time that the court stayed the injunction pending the outcome ...

On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species ...

On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable ...

On Tuesday October 24, 2012, several conservation groups wrote a letter to President Obama expressing concerns about an agreement that the Obama Administration entered into with the American Forest Resource Council, Carpenter Industrial Council, and Douglas County, Oregon (Plaintiffs), to remove critical habitat for the marbled murrelet (Brachyramphus marmoratus), a seabird listed as threatened under the Endangered Species Act (ESA).  The agreement still needs approval by the United States District Court for the District of Columbia.

Plaintiffs sued the U.S. Fish and ...

On October 22, 2012, the Ninth Circuit Court of Appeals held that the U.S. Fish and Wildlife Service (Service) abused its discretion when it issued a biological opinion (BiOp) and incidental take statement for the Ruby Pipeline Project, and ordered the Service to prepare a revised BiOp.  Center for Biological Diversity v. U.S. Bureau of Land Management, No. 10-72356 (9th Cir. Oct. 22, 2012) (pdf). 

Specifically, the court held that the Service's "no jeopardy" and "no adverse modification" to critical habitat determinations relied on protective measures that are not ...

Previously, we reported on the latest chapter in the decade-long dispute between environmental groups, federal agencies, and pesticide manufacturers over the impact of pesticides on the Pacific Northwest’s listed salmon populations.  The next chapter is scheduled for October 24, 2012, when the U.S. Court of Appeals for the Fourth Circuit will hear oral argument in DowAgrosciences LLC v. National Marine Fisheries Service. In that case, a consortium of pesticide manufacturers are arguing that a Biological Opinion (BiOp) issued by the National Marine Fisheries Service ...

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA).  In doing so, the Court followed the Ninth Circuit's reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate.  ...

On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of the FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

In 2004, the United States District Court for the Western District of Washington ruled

A judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River.  On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam.  NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016.  The Humane Society challenged NMFS's decision, claiming that NMFS ...

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered ...

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 ...

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.

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

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

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

On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

Recently, we reported on an unusual bad faith finding made by the United States District Court for the Eastern District of California in litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt (Hypomesus transpacificus).  Thus far, the Department of the Interior has reacted to the bad faith finding by expressing its confidence in agency personnel involved in the matter.  Mike Taugher of the Contra Costa Times reported that Department of ...

On September 16, 2011, in litigation challenging a biological opinion and reasonable and prudent alternative issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt, the United States District Court for the Eastern District of California made a finding of agency bad faith by the U.S. Fish and Wildlife Service.  The finding was incorporated into the court's ruling from the bench on motions to stay filed by federal defendants and intervenor environmental groups after the court issued a decision on August 31 ...

On August 25, 2011, the United States Court of Appeals for the Ninth Circuit denied (pdf) an emergency motion for an injunction pending appeal to re-instate Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. Environmental groups appealed the case to the Ninth Circuit on August 13, 2011, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except in the state of Wyoming. The same rule was determined by a district ...

On August 19, 2011, the U.S. District Court for the Eastern District of California denied in part and granted in part FEMA's motion for partial summary judgment (PDF) in the latest in a series of lawsuits filed against FEMA for failing to consult under Section 7 of the Endangered Species Act (ESA) regarding the impacts of its administration of the National Flood Insurance Program (NFIP) on listed species that depend upon floodplains.

In their first claim for relief in Coalition for a Sustainable Delta v. Federal Emergency Management Agency, No. 09-2024 (E.D. Cal.), the plaintiffs ...

In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).

The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended ...

The National Marine Fisheries Service (NMFS) has suspended its letter of authorization (LOA) under Section 120 of the Marine Mammal Protection Act (MMPA) allowing the States of Oregon and Washington to lethally remove California sea lions caught eating endangered salmon and steelhead in the Columbia River.  NMFS cited pending litigation in Federal court and limited sea lion activity for its decision, and invited the states to renew their request for an LOA in 2012.  NMFS’ decision comes in the wake of an agreement (see earlier post) between wildlife advocates and the two states to ...

On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species.  The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues.  The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.

The Service ...

In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for ...

The House Committee on Natural Resources is set to hold hearings on a bill that will allow for the lethal removal of California sea lions (Zalophus californianus) caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The Endangered Salmon Predation Prevention Act (H.R. 946), introduced in March 2011, would allow the states of Washington and Oregon, and four local tribal organizations, to get year-long leases to lethally remove a limited number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered ...

In a decision that addresses a number of the more difficult issues the federal wildlife agencies grapple with during the section 7 consultation process, the United States District Court for the District of Arizona recently struck down (pdf) a biological opinion (pdf) issued by the Fish and Wildlife Service for ongoing operations at Fort Huachuca that affect species in the upper San Pedro River area of southeastern Arizona. The court also held that the Department of the Army violated its section 7 obligation by relying on the legally flawed biological opinion.

Fort Huachuca is a major military base in southeastern Arizona. Base operations affect two listed species, the endangered Huachuca water umbel (Lilaeopsis schaffneriana ssp. recurva) and the endangered southwestern willow flycatcher (Empidonax traillii extimus). The court identified two categories of impacts to the species: direct and indirect effects of activities within the Fort’s boundaries and indirect effects on a portion of the San Pedro River including groundwater and surface water consumption.

The states of Oregon and Washington have agreed to suspend the lethal removal of California sea lions caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The sea lion removal program had been implemented to reduce the number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to the National Marine Fisheries Service (NMFS), the sea lions have a significant effect on the ability of the fish stocks to recover. The agreement was reached between wildlife advocates, including the ...

On May 17, 2011, the U.S. District Court for the District of Columbia stayed its approval of a proposed settlement agreement (Agreement) aimed at expediting findings related to petitions to list 251 species. The Center for Biological Diversity (Center) opposed approval of the Agreement after being left out of the negotiation process.

As we previously reported, plaintiff WildEarth Guardians (Guardians) entered into the Agreement with the Secretary of the Interior and the U.S. Fish and Wildlife Service (Service), under which the Service agreed to a six-year work plan to address ...

The U.S. Fish and Wildlife Service (Service) announced that it has developed a six-year work plan that would allow the Service to systematically review and address the needs of more than 250 species currently listed as candidate species for protection under the Endangered Species Act (ESA). The work plan is part of a settlement agreement (PDF) between the Service and WildEarth Guardians (WildEarth) that will be filed in a consolidated case in the U.S. District Court for the District of Columbia.

While the Candidate List was envisioned as an administrative tool that would identify species for which the Service would shortly make listing decisions, the dramatic increase of listing petitions and lawsuits has led to a backlog of species on the list. The Service has received petitions to list more than 1,230 species in the last four years – nearly as many petitions as the amount of species listed under the ESA in the previous 30 years. The work plan provides a schedule for making listing determinations for current candidates species, and it includes some species that have been petitioned for protection under the ESA.

On April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act.  Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).

Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "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."  Id. at *11. 

The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities.  But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."

The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7. 

A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'"  Id. at *6-7.  In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended.  Instead, the NOIs were agency inaction, not  "agency action" that could trigger a duty to consult under section 7.

The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits.  Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources.  Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources.  Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision.  It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]."  Id. at *7.

In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI."  Id. at *15.  In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways.  First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining."  Id. at *23.  Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges.  Id. at *24.  And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest.  Id.

The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).

It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.

As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade ...

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized ...

On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population.  Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.

The ...

On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management ...

In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.

In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species."  As previously discussed here, the Fish & ...

On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species.   See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).

The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline.  In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.

Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.

Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened.  If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear.  Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.

The environmental plaintiffs have also challenged the validity of the 4(d) rule itself.  Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.