Endangered Species Law & Policy

On February 11, 2011, the U.S. Court of Appeals for the Federal Circuit reversed and remanded (pdf) the decision of a lower court, finding that the U.S. Bureau of Reclamation's implementation of a reasonable and prudent alternative may have resulted in a taking requiring just compensation under the Fifth Amendment to the U.S. Constitution.

Pursuant to congressional authorization issued in 1902 and 1905, the Bureau of Reclamation (Bureau) manages and operates the Klamath Irrigation Project (Klamath Project), which provides water to approximately 240,000 acres of irrigable crop land, as well as to several national wildlife refuges in southern Oregon and Northern California.

A public rally to oppose the U.S. Fish and Wildlife Service's proposal to list the dunes sagebrush lizard (formerly known as the sand dune lizard) as endangered is being sponsored by the Permian Basin Petroleum Association in west Texas.  That proposal has drawn sharp criticism from Congressmen Steve Pearce (R-NM) and Mike Conway (R-TX). 

Both the PBPA and the Congressmen claim that the listing will cost jobs in the oil and gas industry by blocking exploration and extraction in counties on or near the Texas-New Mexico border for several years.  Advocates for the listing decision ...

The New York Times reported that the number of petitions to list a species as threatened or endangered under the Endangered Species Act (ESA) received by the U.S. Fish and Wildlife Service (Service) has skyrocketed in recent years.

"Over the last four years, a few environmental groups have requested that more than 1,230 species be listed, compared with the previous 12 years in which annual requests averaged only 20 species."

(The New York Times, April 20, 2011, by Todd Woody.)  The increase from an average of 20 petitions to an average of more than 300 petitions is certain to tax the ...

On April 20, 2011, the Pacific Fishery Management Council (Council) issued its final management measures for the 2011 salmon fisheries season. The report, titled Preseason Report III: Analysis of Council-Adopted Regulatory Measures for 2011 Ocean Salmon Fisheries (pdf), covers the period of May 1, 2011 through April 30, 2012, and is the last in a series of three preseason reports prepared by the Council’s Salmon Technical Team to guide salmon fishery management off the coasts of Washington, Oregon and California. The report will be submitted to the National Marine Fisheries ...

This week the National Marine Fisheries Service (NMFS) designated (PDF) 3,013 square miles (nearly 2 million acres) of marine habitat in Alaska as critical habitat for the Cook Inlet beluga whale. NMFS listed the species as endangered (PDF) in 2008 under the Endangered Species Act (ESA). Critical habitat was subsequently proposed (PDF) in 2009. The final rule includes several small changes to the areas proposed as critical habitat—most importantly, it excludes the Port of Anchorage for reasons relating to national security as well as portions of military lands.

The ...

As reported by a number of news outlets including The New York Times, Congress is poised to pass an appropriations bill (pdf) to fund the federal government for the remainder of this fiscal year, which ends September 30, 2011, that includes a provision to remove the gray wolf from the list of threatened and endangered species protected by the Endangered Species Act (ESA) in the states of Idaho and Montana.  The gray wolf would remain listed in Wyoming.  (The New York Times, April 13, 2011, by Felicity Barringer and John M. Broder.)

The relevant provision is section 1713 of the bill ...

A federal judge has denied a proposed settlement agreement between the U.S. Fish and Wildlife Service (Service) and 10 conservation groups that would have lifted Endangered Species Act (ESA) protections for the gray wolf in Montana and Idaho. In the decision (pdf), U.S. District Judge Donald Molloy cited the court’s lack of authority to put only a portion of an endangered species’ population under state management. He reasoned that the District Court is still constrained by the ‘rule of law.’ No matter how useful a course of conduct might be to achieve a certain end, no matter ...

In response to a petition to list the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered and designate critical habitat under the Endangered Species Act, the National Marine Fisheries Service issued a finding (pdf) that "the petition presents substantial scientific information indicating the petitioned actions may be warranted."  The petition (pdf) was filed by the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.  NMFS is soliciting ...

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 reported by The Sacramento Bee, on April 5, 2011, the United States District Court for the Eastern District of California approved (pdf) a stipulated settlement agreement (pdf), over the objections of intervenors, potentially ending the ongoing dispute over the alleged impacts of striped bass predation on listed salmonids and delta smelt.  (The Sacramento Bee, April 6, 2011, by Matt Weiser)  

In 2008, plaintiffs filed a lawsuit against the California Department of Fish and Game ("Department") alleging that the enforcement of the striped bass sport-fishing regulations ...