Endangered Species Committee
Highlights & Email Updates
SEPTEMBER 22, 2010
On August 5, 2010 Judge Donald Molloy of the United States District Court for the District of Montana set aside the rule that removed the northern Rocky Mountain Distinct Population Segment (“DPS”) of the gray wolf from the list of species protected by the Endangered Species Act. Defenders of Wildlife v. Salazar, Case No. 9:09-cv-00077-DWM, Slip Op. at 50 (D. Mont. 2010). The plaintiffs argued that “the Service violated the plain terms of the ESA by listing something less than a DPS as endangered” and that “in the delisting Final Rule the agency relied on factors Congress did not authorize it to consider: an agency created sub-DPS taxonomy.”Slip Op. at 18. The Court agreed with the plaintiffs and held that the delisting rule must be vacated because “[t]he plain language of the ESA does not allow the [United States Fish and Wildlife Service] to divide a DPS into a smaller taxonomy.” Slip Op. at 8.
MARCH 8, 2010
On March 5, 2010, the United States Fish and Wildlife Service (“Service”) determined that the greater sage-grouse, a ground dwelling bird found throughout much of the West, warrants protection under the Endangered Species Act (“ESA”). The Service, however, declined to list the greater sage-grouse under the ESA because it determined that listing is precluded by the need to address higher priority species first. As a result of this decision, the greater sage-grouse will join more than 200 species on a candidate list for future action, and states will remain responsible for managing the bird. Citing uncertainty regarding Congressional appropriations and the complexity of listing decisions regarding candidate species with higher priority than the greater sage-grouse, the Service declined to estimate how long it might be before the Service prepares a final rule protecting the greater sage-grouse under the ESA.
Additional information from the Service about this decision is available here.
APRIL 28, 2009
Today, the Departments of Commerce and the Interior revoked a rule put in place by the Bush administration in December 2008 that altered long-standing procedures on interagency consultation under ESA section 7. As a result of this revocation, federal agencies must once again consult with the U.S. Fish and Wildlife Service and National Oceanic Atmospheric Administration before taking any action that may affect threatened or endangered species.
A copy of the Department of the Interior press release announcing this decision is available at http://www.doi.gov/news/09_News_Releases/042809c.html.
MARCH 4, 2009
On March 3, 2009, President Obama issued a Memorandum (http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies/) requesting that the Secretaries of Interior and Commerce review the December 2008 joint regulation that modified longstanding consultation requirements under ESA section 7. The purpose of this review is “to determine whether to undertake new rulemaking procedures with respect to consultative and concurrence processes that will promote the purposes of the ESA.” In an effort to return to the status quo of section 7 consultation prior to issuance of the regulation under review, President Obama asked all agencies exercise their discretion under the December 2008 regulation “to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS” while the review is taking place.
_______________________________________________________________________
DECEMBER 11, 2008
Today, the Department of the Interior published a final rule amending regulations regarding Interagency Cooperation under Endangered Species Act section 7. In a public statement , Secretary Kempthorne’s office characterized the new regulations as a “narrow update of existing regulations.” (see http://www.doi.gov/news/08_News_Releases/121108a.html).
OCTOBER 27, 2008
On August 15, 2008, the Interior and Commerce Departments issued a proposed rule to amend current regulations governing federal interagency consultations under the Endangered Species Act (“ESA”). 73 Fed. Reg. 47868-47875. Today, the United States Fish and Wildlife Service and the National Marine Fisheries Service collectively issued a draft Environmental Assessment (“EA”) for the proposed rule. As described in greater detail in the draft EA, the Services have concluded that the proposed rule “is not expected to result in significant effects within the meaning of NEPA and the CEQ regulations” and that “no . . . effects have been identified that would rise to the level of significance requiring the Services to prepare an environmental impact statement.”
More information about the draft EA, including the document’s two appendices, may be found at http://www.doi.gov/issues/esa.html.
AUGUST 20, 2008
On August 15, 2008, the Interior and Commerce Departments (jointly, “Agencies”), issued a proposed rule to amend current regulations governing federal interagency consultations under the Endangered Species Act (“ESA”). 73 Fed. Reg. 47868-47875. Section 7 of the ESA and its implementing regulations require consultation with the Agencies to ensure that federal actions are not likely to jeopardize protected species or adversely affect their critical habitat. According to the Agencies, their experience over many years has increasingly found these consultations to be too numerous, unwieldy, and lengthy.
In lieu of current regulations requiring consultation whenever a federal action “may affect” species or its critical habitat, 50 C.F.R. § 402.14(a), the proposal seeks to allow action agencies to determine on their own if their actions are not anticipated to “take” listed species and are “not likely to adversely affect” listed species or their habitat. The proposed rule would not require Section 7 consultation or concurrence when the action agency has determined that “take is not anticipated and the potential effects are either insignificant, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy or adverse modification or destruction of critical habitat.” 73 Fed. Reg. at 47871.
JUNE 27, 2008
Secretary Dirk Kempthorne today announced the Department of Interior’s decision to remove the bald eagle from the Endangered Species Act’s list of endangered and threatened species. More information about the de-listing decision is available at http://www.fws.gov/migratorybirds/baldeagle.htm.
JUNE 28, 2007
On June 13, 2007 Judge John C. Coughenour in the Western District of Washington set aside NOAA Fisheries’ downlisting of Upper Columbia River steelhead from endangered to threatened and also set aside as contrary to the Endangered Species Act the Hatchery Listing Policy (HLP), the policy upon which NOAA Fisheries based its decision to downlist the Upper Columbia River steelhead.
In an opinion on cross motions for summary judgment in Trout Unlimited v. Lohn, Case No. CV06-0483-JCC (W.D. Wash. June 13, 2007), the Court discussed at length NOAA Fisheries’ treatment of hatchery-raised fish in listing decisions and recovery efforts in relation to the purposes of the ESA. The Court concluded that the agency’s current policy does not comport with the central purpose of the ESA: “[T]he Court concludes that the HLP ... mandates that status determinations be based on the entire [Evolutionary Significant Unit], including both natural and hatchery fish. This assessment method departs from the ESA’s central purpose, which is to promote and conserve naturally self-sustaining populations.” (emphasis in original). The Court then cited the downlisting of Upper Columbia River steelhead as a “clear example” of how consideration of both natural and hatchery-raised fish in listing and status determinations “distracts from the risks faced by natural populations and departs from the central purpose of the ESA.” Consideration of only natural populations of Upper Columbia River steelhead compelled an “endangered” listing. Including hatchery-raised Upper Columbia River steelhead in its consideration, however, allowed NOAA Fisheries to list the Upper Columbia River steelhead as “threatened.” According to the Court, if the HLP were consistent with the central purpose of the ESA, “analysis of the status of the natural populations ... would have ended the inquiry.” The Court also determined that NOAA Fisheries’ “focus on the extinction risks faced by ... both hatchery and wild salmon ... is not supported by the best available scientific data” and thus contrary to ESA section 4(b)(1)(A), 16 U.S.C. s 1533(b)(1)(A).
Pursuant to the Court’s order, with respect to NOAA Fisheries’ policy for addressing hatchery-raised fish, “[u]ntil such time as [NOAA Fisheries] promulgates another policy on the consideration of hatchery fish in ESA listing determinations, the [1993] Interim Hatchery Policy will be in effect.” With respect to the downlisting of Upper Columbia River steelhead from endangered to threatened, the Court determined that “[u]ntil such time as [NOAA Fisheries] re-examines its initial listing determination, taking into appropriate consideration the ESA’s central purpose of promoting self-sustaining natural populations, the initial listing determination of the Upper Columbia River steelhead ... as endangered will be in effect.”
JUNE 25, 2007
In its first substantive ESA decision in several years, the United States Supreme Court ruled today that the Endangered Species Act does not trump specific statutory mandates applicable to federal agency actions. In a 5-4 opinion in National Home Builders Ass’n v. Defenders of Wildlife, No. 06-340, the Court ruled that the United States Environmental Protection Agency’s (“EPA”) decision to transfer NPDES permitting authority to a state under Clean Water Act (“CWA”) Section 402(b) does not require consultation with NOAA Fisheries or the United States Fish and Wildlife Service (“FWS”) under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2). At issue was EPA’s decision to transfer NPDES permitting authority to the State of Arizona. Although Arizona satisfied the nine statutory criteria for transfer set forth in CWA Section 402(b), the Ninth Circuit Court of Appeals held that EPA also had an obligation to comply with ESA Section 7(a)(2). The Court observed that the Ninth Circuit’s broad reading of ESA Section 7(a)(2) would have had impacts far beyond CWA Section 402(b), the specific statutory provision involved here: “Reading the provision broadly would ... partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species.” The Supreme Court rejected the Ninth Circuit’s reading of ESA Section 7(a)(2).
The Court acknowledged the tension between CWA Section 402(b) and ESA Section 7(a)(2). CWA Section 402(b) provides “that the EPA ‘shall approve’ a transfer application unless it determines that a state lacks adequate authority to perform the nine functions specified in the section.” ESA Section 7(a)(2) requires that each federal agency “shall, in consultation with ... the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize” endangered or threatened species or their habitats. As framed by the Supreme Court, “the question presented [was] whether § 7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute [i.e., the CWA] must be conditioned.” The Court reasoned that an affirmative answer to this question “would effectively repeal the mandatory and exclusive list of criteria set forth in § 402(b), and replace it with a new, expanded list that includes § 7(a)(2)’s no-jeopardy requirement.” The Court determined that Congress did not intend such a repeal.
In the absence of a repeal by Congress of CWA Section 402(b)’s requirements, the Court was left with a “fundamental ambiguity that is not resolved by the statutory text” of ESA Section 7(a)(2). The Court determined that it was “appropriate to look to the implementing agenc[ies’] expert interpretation” of the scope of Section 7(a)(2)’s consultation requirements in order to resolve the tension between the two statutes. 50 C.F.R. § 402.03, a regulation jointly promulgated by NOAA Fisheries and FWS, provides that ESA “Section 7 ... appl[ies] to all actions in which there is discretionary Federal involvement or control.” (emphasis added by the Court). The Court concluded “that this interpretation is reasonable in light of the statute’s text and overall statutory scheme, and that it is therefore entitled to deference under Chevron.” Because EPA did not have discretion to deny Arizona’s transfer application once Arizona demonstrated that it has adequate authority to perform the nine functions set forth in CWA Section 402(b), EPA’s transfer of NPDES permitting authority did not require consultation under ESA Section 7(a)(2), and the Supreme Court reversed the opinion of the Ninth Circuit and remanded the case for further proceedings consistent with today’s opinion.
MAY 15, 2008
Yesterday, Secretary of the Interior Dirk Kempthorne announced (see http://www.doi.gov/news/08_News_Releases/080514a.html) that he has accepted the recommendation of the United States Fish and Wildlife Service to list the polar bear as a threatened species under the Endangered Species Act. According to the Department of the Interior, “[t]he listing is based on the best available science, which shows that the loss of sea ice threatens and will likely continue to threaten polar bear habitat.” Because this loss of habitat puts bears at risk of becoming endangered, the ESA compels listing the bears as threatened.
Kempthorne also announced that the agency is taking steps to try to limit the scope and impact of the listing. Although a decline in sea ice prompted the listing, Kempthorne stated that the listing “should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources” because “[t]hat would be a wholly inappropriate use of the ESA law.” Consequently, Kempthorne promised that the United States Fish and Wildlife Service would issue guidance to its staff that “the best scientific evidence today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource project or government action.” He also indicated that the Fish and Wildlife Service is proposing a 4(d) rule that provides that if an activity is permissible under the Marine Mammal Protection Act with respect to polar bears, it is also permissible under the ESA.
Kempthorne also announced that the United States has signed a Memorandum of Understanding for conservation and management of polar bears with Canada, which is home to two-third’s of the world’s polar bear population.
Copies of the FWS guidance, the proposed 4(d) rule, and the MOU with Canada are available at http://www.doi.gov/issues/polar_bears.html.
APRIL 10, 2007
On Monday, April 9, 2007, the Court of Appeals for the Ninth Circuit upheld the decision of the District of Oregon to invalidate the 2004 Biological Opinion (“2004 BiOp”) for the operation of the Federal Columbia River Power System (“FCRPS”). In National Wildlife Federation v. State of Idaho, No. 06-35011, the Ninth Circuit upheld all of Judge Redden’s determinations that had been challenged on appeal. The Ninth Circuit panel concluded that “[a]t its core, the 2004 BiOp amounted to little more than an analytical sleight of hand, manipulating the variables to achieve a ‘no jeopardy’ finding. Statistically speaking, using the 2004 BiOp’s analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination. For these reasons, the district court’s rejection of the BiOp’s jeopardy analysis was entirely correct.”
Some highlights include the following:
- Rejection of federal efforts to account for the existence of the FCRPS dams
- The panel rejected NMFS’ determination with respect to which operations were discretionary actions subject to ESA review under ESA section 7 and which were nondiscretionary and outside the scope that review. The panel concluded that, contrary to what it described as NMFS’ “cramped” view of what constitutes a discretionary action for ESA purposes, “any action actually taken by the agency is discretionary.”
- The panel also rejected NMFS’ use of a reference operation as a substitute for analysis of the impacts of actual operations of the FCRPS dams. The panel stated that NMFS admitted that the purpose of the reference operation was to avoid making an actual determination about the extent of discretionary actions involved in operation of the FCRPS dams. The panel reasoned that “[t]he very fact that the agencies are unable to define the limits of their discretion reveals that all FCRPS operations are intertwined and subject to discretionary control. The agencies may have non-discretionary types of obligations, but they still maintain discretion -- indeed, a duty -- to balance the competing demands and honor their ESA obligations.”
- Rejection of federal approach to accounting for species’ recovery.
- The panel determined that NMFS’ approach for addressing survival and recovery, as required by ESA regulations, did not actually require NMFS to consider recovery. Under the circumstances of this case, the court determined that “NMFS’ analytical omission here may not be dismissed as harmless: the highly precarious status of the listed fishes at issue raises a substantial possibility that considering recovery impacts could change the jeopardy analysis. The only reasonable interpretation of the jeopardy regulation requires NMFS to consider recovery impacts as well as survival.”
- Approval of Judge Redden’s approach to remand.
- The panel held that Judge Redden’s remand order, which requires the federal agencies to collaborate with non-federal entities and submit periodic reports to the court, was within the scope of the court’s discretion. After noting that “[t]he analytical approach of the 2004 BiOp, issued under court order after a remand in 2003, broke sharply from NMFS’ previous analyses in the 1995 and 2000 BiOps, and did so in ways that lacked any reasonable foundation in the ESA’s statutory mandates,” the panel concluded that “on this record, requiring consultation with states and tribes constitutes a permissible procedural restriction rather than an impermissible substantive restraint.”
MARCH 22, 2007
On March 16, 2007, the Solicitor of the Department of the Interior issued a memorandum that announces the Department’s understanding of how it determines a whether a species is “endangered” for purposes of the Endangered Species Act (ESA). The ESA defines an “endangered species” as “any species that is in danger of extinction throughout all or a significant portion of its range.” 16 USC 1532(6). The Solicitor’s memorandum focuses on the phrase “significant portion of its range” (“SPR phrase”) and reaches the following conclusions with respect to that phrase:
- The SPR phrase is a substantive standard for determining whether a species is an endangered species -- whenever the Secretary concludes because of the statutory five-factor analysis that a species is “in danger of extinction throughout . . . a significant portion of its range,” it is to be listed and the protections of the ESA applied to that portion of its range where it is specified as an “endangered species”;
- The word “range” in the SPR phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed;
- The Secretary has broad discretion in defining what portion of a range is “significant,” and may consider factors other than simply the size of the range portion in defining what is “significant”; and
- The Secretary’s discretion in defining “significant is not unlimited; he may not, for example, define “significant” to require that a species is endangered only if the threats faced by a species in a portion of its range are so severe as to threaten the viability of the species as a whole.
The conclusion that the SPR phrase is a substantive standard is counter to the Department’s interpretation of that phrase since 2000. From 2000 until this memorandum, the Department had viewed the SPR phrase as merely clarifying the evidentiary burden the Secretary must make when determining whether a species is endangered, rather than imposing a substantive standard for the Secretary to consider in making that determination. Thus, this memorandum indicates a significant shift in the Department’s position with respect to determining whether a species is entitled to the protections of the ESA that apply to endangered species.
JANUARY 8, 2007
On Friday, January 5, 2007, the United States Supreme Court granted petitions for certiorari by the National Association of Home Builders (NAHB) and the United States Environmental Protection Agency in the consolidated cases of National Ass’n of Home Builders v. Defenders of Wildlife and United States Environmental Protection Agency v. Defenders of Wildlife (collectively, “Defenders”), 420 F.3d 946 (9th Cir. 2005).
In Defenders, the Ninth Circuit vacated EPA’s decision to approve the transfer of permitting authority under Clean Water Act section 402(b), 33 U.S.C. 1342(b), to the State of Arizona. Defenders, 420 F.3d at 979. Although EPA’s approval may have complied with the agency’s obligations under the Clean Water Act, according to the Ninth Circuit, “compliance with a ‘complementary’ statute cannot relieve relieve the EPA of its independent obligations under [ESA] section 7(a)(2).” Id. at 971. The Ninth Circuit thus held that ESA section 7 requires EPA to consider the impact on endangered and threatened species and their habitat when the agency decides to transfer this authority to a state. Id. at 949. Because EPA did not consider these impacts when it approved EPA’s transfer of Clean Water Act permitting authority to Arizona, the Ninth Circuit held that EPA’s approval was erroneous and remanded the matter to EPA. Id. at 979.
In September 2006, NAHB filed a petition for certiorari in the United States Supreme Court in which it asked the Court to determine
Whether a court can append additional criteria to Section 402(b) of the Clean Water Act that require state NPDES programs to include protections for endangered species;
Whether Section 7(a)(2) of the Endangered Species Act constitutes an independent source of authority, requiring federal agencies to take affirmative action to benefit endangered species even when an agency’s enabling statutes preclude such action; and
Whether the Ninth Circuit incorrectly applied the holding of Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004), in concluding that EPA’s approval of Arizona’s NPDES permitting program was the legally relevant cause of impacts to endangered species resulting from private land use activities.
In October 2006, EPA filed a petition that asked the Court to determine
Whether Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a)(2), which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency’s discretion by other Acts of Congress.
The Supreme Court accepted all of these questions and stated that it will consider the following additional question:
Whether the court of appeals correctly held that the Environmental Protection Agency’s decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. §1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. §1536(a)(2); and, if so, whether the court of appeals should have remanded to the Environmental Protection Agency for further proceedings without ruling on the interpretation of Section 7(a)(2).
The Court has not yet set a date for oral argument, but it is expected that oral argument will take place in April 2007.
The cases are Nat. Assn. of Home Builders v. Defenders of Wildlife, et al. (06-340), and EPA v. Defenders of Wildlife, et al. (06-549).
