Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

Posted on July 14, 2016 by Seth Jaffe

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.

An image of a "No Trespassing" sign on a tree.

In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.

The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”.  Judge Skavdahl wasn’t having any of it.

"Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others.  Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy."

Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin.  The Judge was not sympathetic here, either.

"The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes."

The Court also rejected the equal protection claim.  Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny.  The Court found a rational basis in discouraging trespassing.

Finally, the Judge addressed the issue most significant from my point of view:  May information gathered as a result of a trespass be used in enforcement proceedings?  The statute requires “expungement” of such data.  The Court held that the Supreme Court has largely rejected facial challenges to such provisions.  Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.

Why does this matter?  Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property.  Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped.  Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!

I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.

ESA Unconstitutional? Maybe, maybe not

Posted on November 11, 2014 by Margaret (Peggy) N. Strand

Bucking the trend of five Circuit Courts of Appeal, the U.S. District Court for Utah decided the Endangered Species Act (ESA) cannot be applied on private property for a wholly intrastate species.  The threatened Utah prairie dog, found exclusively in Southwestern Utah, apparently has insufficient connection to interstate commerce to support federal protection when found on privately owned land.

In the aptly named People for the Ethical Treatment of Property Owners (PETPO) v. US Fish and Wildlife Service, PETPO sued the government when it modified its regulations establishing limitations on “take” (death, injury) of the Utah prairie dog, a species found only within Utah.  Because the species was not found interstate and finding no other relationship between the species and interstate commerce, the court looked at and rejected all of the government’s arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate activities having a substantial relation to interstate commerce.

The government’s arguments were the same as have been made in multiple court decisions, each of which finding regulation of wholly intrastate species under the ESA supported by the Commerce Clause, including in the 9th, 11th, 5th, 4th and DC Circuits (respectively, see San Luis & Delta-Mendota Water Authority v. Salazar; Alabama-Tombigbee Rivers Coalition v. Kempthorne; GDF Realty Investments, LTD. v. Norton; Gibbs v. Babbitt; Nat’l Ass’n of Home Builders v. Babbitt.)  The PETPO decision is contrary to this precedent, which, if upheld by the Tenth Circuit, may lead to a split in the Circuits and a shot at Supreme Court review.

Constitutional law groupies will recall the Supreme Court seemed to establish more strict limitations on the federal Commerce Clause power when it struck down the “Gun-Free School Zones” law in United States v. Lopez and overturned parts of the Violence Against Women Act in United States v. Morrison.  At that time, folks questioned whether the ESA would survive a constitutional challenge involving a wholly intrastate species.  For a number of years in a number of courts, the government has prevailed.  Now there is a decision to the contrary to be watched as it makes its way through appeals.

The court soundly rejected all of the government’s arguments supporting the regulation.  The government argued the “activities” prohibited by the rule are commercial or economic in nature; for example, limitations on farming and construction.  This position was rejected because the regulation applied whether or not linked to an economic activity.  More significantly, the court said the government was looking at the wrong thing for a nexus to commerce: the proper focus of the “substantial effect” test is the “regulated activity.” “In other words, the question in the present case is whether take of the Utah prairie dog has a substantial effect on interstate commerce, not whether the regulation preventing the take has such an effect.”  The fact that property owners would have to stop farming or otherwise engage in some commercial activities did not, on its own, provide sufficient nexus to interstate commerce to support species protection.

The government also argued the Utah prairie dog has biological and commercial value, so that any takes of the animal have a substantial effect on interstate commerce.  The Utah prairie dog is not a commercial species, and the court concluded, “any takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA.”

As far as biological value, Defendants argue prairie dogs perform many functions contributing to the ecosystem.  This point was also rejected in strong language:

If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause. Accordingly, the asserted biological value of the Utah prairie dog is inconsequential in this case.

Finally, intervenor Friends of the Earth argued an interstate commerce connection based on the fact the prairie dog has been the subject of scientific studies and commercially published books.  The court said lots of books had been published about both guns and women, but that was not sufficient under Lopez or Morrison.

Although no Clean Water Act decisions are cited, the PETPO opinion may be of interest to those following the constitutionality of federal regulation over wetlands.  Pending proposed regulations defining waters of the United States for Clean Water Act jurisdiction rely in part on the connectivity of ecosystems dependent on clean water. (See here, here and here.)  Rejecting the argument that the Utah prairie dog warranted federal protection as part of an integrated ecosystem, the Utah decision quotes Chief Judge Sentelle, in dissent in National Ass’n of Home Builders v. Babbitt, “The Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.’”

Stay tuned.

US Announces Significant Measures to Combat Illegal Wildlife Trade

Posted on February 24, 2014 by Deborah Jennings

Across the globe, populations of elephants, rhinos, tigers, and other wild animals have been decimated as poachers, organized criminal syndicates, terrorist organizations, and corrupt officials seek to capitalize on the growing demand for their ivory, horns, and carcasses. By recent estimates, there are only 3,200 tigers and less than 30,000 rhinos left in the wild, with many subspecies extinct or at the brink of extinction. Combined with a loss of up to 30,000 elephants a year out of an estimated 500,000 remaining worldwide, we may soon see the loss of these great species within the next decade.

The United States recently announced a series of measures aimed at protecting endangered and vulnerable species from the growing risk of extinction at the hands of poachers, traffickers, and consumers. On February 11, 2014, the White House released its National Strategy for Combating Wildlife Trafficking and announced a ban on the commercial trade of ivory. Once implemented, these measures could amount to the most significant efforts by the U.S. government to combat the illegal wildlife trade within the United States and abroad in over two decades.

While China and other southeast Asian countries represent the primary source of demand, it might be surprising to know the United States is actually considered the second largest market for wildlife products in the world. Although international trade in ivory products is generally outlawed under the Endangered Species Act, 16 U.S.C.A. §§ 1531 to 1543, which implements the 1974 Convention on International Trade in Endangered Species (CITES), these restrictions are often times evaded (legally and illegally) under exceptions for trade in “antiques” (100 years and older) and permissible domestic ivory trade.

For example, as noted by the U.S. Fish and Wildlife Service (FWS), it has been permissible under US law to:

  • Import unworked African elephant ivory (i.e., raw tusks) as part of a lawfully taken sport-hunted trophy for which appropriate CITES permits are presented
  • Import and export worked African elephant ivory that meets the requirements for an “antique” under the ESA (with CITES documentation)
  • Export ivory that qualifies as “pre-Act” under the ESA and “pre-Convention” under CITES
  • Sell within the U.S. African elephant ivory lawfully imported into the U.S. as “antique” under the ESA or before the 1989 import moratorium under the African Elephant Conservation Act (AECA).
  • Sell legally acquired African elephant ivory within the U.S. unless restricted by “use after import” limitations associated with items imported after the listing of the species under CITES or unless prohibited under state law.

Going forward, however, international and interstate trade in elephant ivory will be severely limited to primarily antiques, while intrastate sale in ivory will be generally limited to ivory imported prior to 1990 for African elephants and 1975 for Asian elephants. In all cases, the burden of proof to demonstrate that the ivory is compliant will now be on the buyer/seller.

Under the US Fish and Wildlife Service’s proposed regulatory changes, the following activities will be prohibited:

  • Commercial import of African elephant ivory
  • Export of non-antique African and Asian elephant ivory (except in exceptional circumstances as permitted under the ESA)
  • Interstate commerce (sale across state lines) of non-antique African and Asian elephant ivory (except in exceptional circumstances as permitted under the ESA)
  • Sale, including intrastate sale (sale within a state), of African and Asian elephant ivory unless the seller can demonstrate that the ivory was lawfully imported prior to listing in CITES Appendix I (1990 for African elephant; 1975 for Asian elephant) or under a CITES pre-Convention certificate or other exemption document

Imports of African elephant ivory will be limited to certain items and purposes where the ivory item will not be sold (i.e. law enforcement, scientific purposes). Imports of sport-hunted trophies of African elephants will be limited to two trophies per hunter per year.

The proposed regulatory changes will likely take place over the course of the next year, and include: (1) issuance of Director’s Order that will provide guidance to Service officers on enforcement of the existing 1989 AECA moratorium, and clarify the definition of “antique” (mid-February 2014); (2) a proposed or interim final rule to revise the 1989 AECA moratorium and create regulations under the Act in the general wildlife import/export regulations, including measures to limit sport-hunting of African elephants (June 2014); (3) a proposed or interim final rule to revise endangered species regulations to provide guidance on the statutory exemption for antiques (June 2014); (4) a proposal to revoke the ESA African elephant special rule (April 2014); and (5) finalize revisions U.S. CITES regulations, including the “use-after-import” provisions in (February 2014).

While the proposed changes severely restrict ivory sales, they nonetheless leave some room for trade, particularly in the intrastate market. Accordingly, states are also seeking to impose additional restrictions. In New York State, the largest market for illegal wildlife products in the US, Assemblyman Robert Sweeney is proposing to ban the sale of all ivory products, even those legal under federal law. Other states may be inclined to follow suit.

The National Strategy for Combating Wildlife Trafficking – while too detailed for summary here – seeks to implement three strategic priorities: (1) strengthening domestic and global enforcement; (2) reducing demand for illegally traded wildlife at home and abroad; and (3) strengthening partnerships with international partners, local communities, NGOs, private industry, and others to combat illegal wildlife poaching and trade.  Combined with measures to be adopted under the commercial ivory ban, there is increased hope for vulnerable and endangered wildlife.

These issues are front and center this month as world leaders and conservation leaders gather at the London Conference on Illegal Wildlife Trade 2014 on February 13. The conference seeks to help eradicate illegal wildlife trade and better protect the world’s most iconic species from the threat of extinction. DLA Piper attorneys have been working closely on this issue, and recently produced a ten-country report assessing gaps in domestic legislation, judicial capacity, and institutional capacity to combat wildlife trafficking. As the world reacts to this growing threat, there remains much to be done, but also new foundations for hope.

---

This blog post is co-authored by Andrew Schatz.

Climate Change: Will Lacey Lend a Hand?

Posted on December 6, 2013 by Susan Cooke

The recent tornado in the Philippines and forecasts of severe weather events ranging from floods to fires and drought, not to mention the global loss of 50 soccer fields of forest every minute, have again focused attention on the Climate Change debate.  However, there is little consensus on what to do about it, as evidenced at the recent Warsaw Climate Change Conference and by Japan’s decision to forego participation in the eight year second commitment period (from 2013) under the Kyoto Protocol.  Indeed, one U.S. study indicates that even labeling an energy efficient product as promoting environmental protection can reduce its appeal among some U.S. citizens.  

With little chance that Climate Change legislation will be adopted in the near term, the federal government will have to rely on existing laws and regulations when it seeks to address the issue.  One law that may receive some attention is the Lacey Act, 16 U.S.C. §§ 3371-3378.  First passed in 1900 to prevent poaching of game and wild birds, the Act was later expanded to encompass plants that are not common food crops.  Since 2008, it has included wood products.  

The Lacey Act prohibits the import, transport, sale, acquisition, or possession of illegally harvested timber.  In addition, it requires the preparation of import declarations giving information about the species of wood and country of harvest.  Noncompliance with its provisions is subject to administrative fines, as well as forfeiture of the timber, with forfeiture being enforced on a strict liability basis.  In addition, both civil and criminal penalties can be imposed by a federal court for certain knowing violations or where there is a lack of “due care”.

The federal government has already used the newly expanded Act in an effort to address illegally harvested timber.  In addition to a criminal enforcement settlement agreement between the Justice Department and Gibson Guitar involving the import of Madagascar ebony, there was a federal government investigation in September of two Lumber Liquidator facilities in Virginia concerning wood imported from eastern Russia.  

In the latter case, this effort tapped into public concern about preserving the forest habitat of the Siberian Tiger, an endangered species, and it also had the secondary effect of addressing Climate Change.  When the lack of enthusiasm for tackling Climate Change efforts is contrasted with the public sympathy and favorable publicity for protection of iconic endangered species like the tiger, the Lacey Act may be an interesting addition to the federal government’s Climate Change enforcement arsenal.

And so the real question is what endangered or threatened species in an illegally logged forest is waiting in the wings for face time in the next Lacey Act enforcement effort, and how many soccer fields of forest will that save?

Massachusetts Supreme Court Considers Agency’s Endangered Species Authority

Posted on July 29, 2013 by Stephen Leonard

Bill and Marlene Pepin own 36 acres of land in Hampden, Massachusetts on which they hope to build a retirement home.  Their plans have thus far been frustrated by the designation of their property as Priority Habitat for the Eastern Box Turtle, a Species of Special Concern under the Massachusetts Endangered Species Act, Mass. Gen. Laws C. 131A. The designation was made by the Massachusetts Division of Fisheries and Wildlife, pursuant to its Priority Habitat regulations, 321 Code Mass. Regs. 10.01 et seq., which were promulgated under to the “no take” provision of the Act.

Pursuant to the regulations, the Pepins’ plans must be reviewed by the Division and will be approved only on a showing that they will not result in the “take” of a Species of Special Concern, a showing that may require modifying the project or otherwise taking steps to protect the species.  This is a burden that, in the Division’s view, is not especially onerous and is one that has been met many times by many projects during the two decades that the regulations have been in effect.  This view appears to have the support of at least a portion of the development community in Massachusetts, support that is based on a concern about what the likely alternative would be to regulation under the Priority Habitat regulations.

The Pepins, though, have taken the view that their project in not subject to the Division’s authority.  They have challenged the designation of their property as Priority Habitat; and they have challenged the Division’s authority to adopt the Priority Habitat regulations in the first place.  They lost on both grounds in an administrative proceeding and appealed the result to the Superior Court, where they lost again.

The Pepins appealed the judgment to the Massachusetts Appeals Court, the Commonwealth’s intermediate level appellate court.  And then the case got considerably more interesting.  In the space of a few months, it was transformed from a relatively straightforward (if very important to the Pepins) challenge to an agency determination into one of the most important administrative law and environmental cases in Massachusetts in a number of years.

The case was docketed in the Appeals Court last year; the Pepins, and then the Division of Fisheries and Wildlife, filed their briefs.  Also filing, in support of the Division, were amici curiae Massachusetts Audubon Society, Massachusetts Association of Conservation Commissions and the Conservation Law Foundation.  Among the amici’s arguments in support the of the Division’s authority to promulgate the challenged Priority Habitat regulations was the assertion that it is better for the development community to be regulated under those regulations than pursuant to a different provision of the Act, one that the Pepins assert is the only provision available to the Division to regulate development on private property.  In support of the assertion, amici appended to their brief an October 2011 letter from NAIOP Commercial Real Estate Development Association Massachusetts, an extremely active participant in discussions and lobbying concerning environmental regulation in Massachusetts (NAIOP was formerly the National Association of Industrial and Office Parks.)  NAIOP’s letter opposed legislation that would have codified the position that the Pepins were taking in court (including in Superior Court, at the time the letter was written) – that the Division does not have authority to regulate private activities in lands designated Priority Habitat and can regulate development only pursuant to the much more restrictive Significant Habitat provisions of the Act, which sharply limit development but which require substantial procedural steps before they can be effective with respect to any particular parcel.  “NAIOP strongly believes that this bill would be bad for real estate development. . . .  [T]he Division has developed a more flexible regulatory mechanism through Priority Habitat. . . .  [T]he bill would result in more unpredictability and uncertainty for developers . . ..”  The bill did not pass.

Late last year, before the case could be argued in the Appeals Court, the Massachusetts Supreme Judicial Court (“SJC”), acting sua sponte, moved the case to its own docket.  In February of this year, the SJC announced that it was “soliciting amicus briefs.  This matter . . . raises the question of what procedural protections are required when the division [] designates ‘priority habitat.’”  The Pacific Legal Foundation, of Sacramento, California, then moved for leave to file an amicus brief in support of the Pepins.  (There is a New England Legal Foundation, based in Boston; it has not played a role in the case.)

The Pacific Legal Foundation brief does not address what had been the original issue between the Pepins and the Division – whether their property was correctly designated as Priority Habitat.  Its entire focus is instead on the asserted unlawfulness under Massachusetts law – statutory law, decisional law and constitutional law – of the Priority Habitat regulations. 

Section 4 of MESA creates three categories of protected species:  Endangered; Threatened (at risk of becoming Endangered); and Species of Special Concern (at risk of becoming Threatened).  The statute directs the Division to establish lists of these species and to designate Significant Habitats for Endangered and Threatened Species (but not for Species of Special Concern).  The designation of Significant Habitat involves substantial scientific and administrative work by the Division; and designation results in substantial limits on land use in the areas designated – but the statue also provides significant opportunities for affected landowners to challenge the designation or otherwise to seek to lessen or eliminate its impact on them – including by petitioning the Division Director to purchase their property.

Separately, Section 2 of MESA makes it unlawful to “take” any listed species (i.e., Endangered, Threatened or of Special Concern).  And in Section 4 the statue empowers the Division to “adopt any regulations necessary to implement [its] provisions [].”

The Division has established a “List of Endangered, Threatened and Special Concern Species;” 321 Code Mass. Regs. 10.90; but the Division has not designated any geographical areas as Significant Habitat. The Division has, however, established by regulation the category of Priority Habitat, to be “used for screening Projects and Activities that may result in the Take of State-listed Species [in all three categories] and to provide guidance to Record Owners regarding a Project or Activity . . ..”  321 Code Mass. Regs. 10.12(1).  The regulations permit an owner whose land is in delineated Priority Habitat to request reconsideration of the delineation; they place the burden on the owner to show that the delineation was improper.

Designation of the Pepins’ land as Priority Habitat for the Eastern Box Turtle was pursuant to these regulations.  Their administrative challenge was summarily dismissed because they produced no evidence that the designation was incorrect, and, as is noted above, the Superior Court upheld the dismissal.  The Pepins’ appellate brief addresses this issue, but its importance has diminished considerably.  The SJC took the case, and the Pacific Legal Foundation moved to become involved, because the case presents a vehicle for challenging the Division’s authority to create a species protection program that is not specifically created by the statute.

The Division’s defense on appeal is a familiar one in administrative law: The statute creates a comprehensive scheme to protect species in varying degrees of peril; it vests “all powers hereunder” in the Director of the Division; it prohibits the “take” of any protected species; and it empowers the Division to “adopt any regulations necessary to implement [its] provisions.”  Given the statutory structure and the deference that is accorded administrative determinations, the Division’s decision to adopt the Priority Habitat Regulations in order to administer the no take provision is reasonable and must be sustained.

There is an appealing counterargument:  The Legislature created a mechanism for regulating the use of private property in the interest of species protection.  That mechanism contains significant protections for landowners.  The Division’s creation of a different mechanism, not mentioned anywhere in the statute and having less robust landowner protections, undermines the balance the Legislature struck between protecting species and respecting property rights.

That argument is briefly made explicit in the Pacific Legal Foundation brief, but the bulk of the brief is a thoroughgoing attack on the authority of the Division – and of administrative agencies generally – to adopt regulations that are not expressly contemplated and specifically described in legislation.  To mount this attack, the brief must delve deeply into Massachusetts administrative and constitutional law.  And it does, advancing a narrow reading of what it means for a regulation to be “necessary” to effect the purposes of a statute; questioning the appropriateness of deferring to the Division’s interpretation of the statute in this case; and seeking to distinguish a line of Massachusetts cases that holds that statutory authority to act in a specific manner does not foreclose an agency’s pursuing parallel action under a general grant of authority.  Moreover, the brief argues, the SJC should decide the case in a way that avoids potential constitutional issues – the brief suggests that upholding the regulations could lead to regulatory takings and that the legislative delegation the Division relies on would constitute a violation of the Massachusetts Constitution’s separation of powers requirement – by striking down the regulations.

The Massachusetts Supreme Judicial Court has long been sensitive to environmental concerns, and it has upheld the broad authority of state and local administrative bodies to act to protect the environment.  The court has also been careful to ensure that the rights of Massachusetts citizens are protected, including by insisting on strict adherence to procedural requirements established by the Legislature.  Bill and Marlene Pepin’s case presents an important test of how those interests will be harmonized.  Argument is now set for October 2013 – stay tuned.

“Something’s Gotta Give” - Should Resident Canada Geese Be Regulated as Migratory Birds?

Posted on July 16, 2013 by Susan Cooke

Back in the 1950s and early 1960s, many feared that Canada geese were following – or perhaps waddling would be more apt - in the footsteps of the carrier pigeon.  Until rediscovered in the wilds of Minnesota, the giant Canada goose, one of several subspecies, was thought to be extinct.  Now the concern in much of the United States is the overabundance of resident Canada geese.  These geese do not migrate to Canada and have flourished in both urban and suburban environs where there is abundant short grass to eat, plenty of water, and few predators.  Averaging a pound of droppings per bird each day, increased numbers of such geese frequent our public parks and beaches, as well as golf courses, farm fields, and backyards, and are often viewed as a nuisance.  Canada geese can also interfere with aircraft takeoffs and landings, as occurred in 2009 when US Airways flight 1549 was forced to land on the Hudson River in mid-town Manhattan.

While the solution to the overpopulation problem might seem obvious, it turns out that control of resident geese is subject to a number of regulatory requirements administered by the U.S. Fish and Wildlife Service, in addition to those imposed at the state and local level.  Such federal authority is said to derive from the Migratory Bird Treaty Act , 16 U.S.C. §§ 703–712, adopted in 1918 to implement the provisions of a 1916 treaty with Great Britain signed on behalf of Canada (Convention Between United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702).  That treaty protects three categories of “migratory birds”.  One category, entitled “Migratory Game Birds”, encompasses a subcategory identified as “Anatidae or waterfowl, including brant, wild ducks, geese, and swans”.  Under the Act, the hunting, taking, or killing of such migratory birds, as well as their nests and eggs, is only allowed under regulations issued by the Secretary of the Interior.  While the treaty references geese that are migratory game birds, the U.S. Fish and Wildlife Service regulations identify protected birds by their species, thereby encompassing each and every Canada goose, regardless of whether that bird actually migrates. 

In recent years, many nonlethal measures have been implemented to address unwanted numbers of resident Canada geese.  These have included relocating such geese or chasing them away (such as with border collies and even hovering balloons with an evil eye depicted on them) and efforts to make an area less accessible or attractive (such as fencing and netting, as well as more “exotic” approaches like the application of grape flavored Kool Aid).  However, as the population of resident Canada geese – and complaints about their presence - continued to grow, the U.S. Fish and Wildlife Service issued a final rule in 2006 to expand the methods for controlling their numbers. 

Those new measures include categorical orders allowing airports and farms, as well as governmental authorities dealing with a public health threat, to implement various control actions without obtaining permits if specified procedures are followed, including the submittal of reports.  Those actions encompass hunting, taking, and killing of resident Canada geese, as well as removing their nests and preventing their eggs from hatching (typically by coating them with corn oil), generally during the time period when their migrating cousins are “out of the country”.  In addition and after filing a registration, landowners, municipalities, and other governmental authorities may remove Canada goose nests and oil their eggs from March through June in accordance with similar requirements.  Expanded hunting opportunities and methods are also provided for, along with a state-regulated, “managed take” hunting program during August. 

Although such measures were intended to reduce the overall population of resident Canada geese by about one third over a ten year time period, their success in many areas of the country – including in my neighborhood - is not readily apparent (e.g. I, II, III, IV).  Moreover, they can require the commitment of significant management resources over the long term.  As a result, there have been calls for less fragmented, regulation-focused measures.  For example, New Zealand has removed Canada geese from its list of protected species and allows them to be hunted and killed at any time of year without a license by “humane means” (which at present would not include poison).  While such an approach may not work in this country, particularly in urban and suburban areas where hunting is unlikely to address unwanted concentrations of the geese and vocal constituencies oppose any significant culling of the resident geese population,  “something’s gotta give”.

Perhaps the place to start is to carefully consider whether resident Canada geese fall within the purview of a treaty and implementing statute that provide for protection of birds that migrate from one country to another, particularly where the stated premise for doing so is the concern that the migratory birds are subject to potential extinction due to lack of adequate protection.  In that regard, the pertinent part of the 1916 treaty refers to migratory birds “of great value as a source of food . . . [that are] in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.”  The Act in turn declares it unlawful, unless permitted by regulation, to hunt, take, or kill migratory birds or their nests or eggs covered by the treaty, with the Secretary of Interior authorized to allow such activities to the extent compatible with that treaty, giving “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds”. 

By making such a distinction between resident and migrating Canada geese, it would then be possible to develop a scientifically based methodology for more effectively managing overpopulation of resident Canada geese, one that may not rely so heavily on the granting of hunting licenses or the removal of nests and egg oiling with all the bells and whistles now attached to such privileges.  Moreover, distinctions could be made between control strategies utilized in urban and suburban areas and those best suited for use in rural or sparsely populated areas.  And here’s hoping that this can be done expeditiously, before more of our public water supplies are threatened, and our parks and beaches are despoiled. 

Effect of Endangered Species Act Listing on the Oil and Gas Industry and the CCAA Option

Posted on April 30, 2012 by Donald Shandy

The oil and gas industry has lately been at the center of the debate over the scope and reach of the Endangered Species Act (“ESA”).  (See, for example, an August 2011 blog by Pamela Giblin).  Creative approaches will be needed to insulate against potential liability. 

When the U.S. District Court for the District of Columbia approved two settlements in multidistrict ESA litigation (MDL No. 2165) on September 9, 2011, the U.S. Fish and Wildlife Service (“FWS”) committed to, among other things, review over 250 candidate species and determine whether to issue a proposed listing rule or to issue a finding that listing is not warranted by the end of fiscal year 2016.  Among those first on the list to be decided are species located in areas of significant oil and gas development and potentially impacted by oil and gas operations.  For example, the Dunes Sagebrush Lizard (also known as the Sand Dune Lizard), a candidate species under the ESA, is known to exist in the energy-rich Permian Basin.

Once a species is listed as endangered or threatened, protective measures apply to the species and its habitat under Section 9 of the ESA.  The ESA prohibits the possession, sale, import, and/or export of endangered species, as well as the “take” of a listed wildlife species by a private or public entity.  Section 3 of the ESA defines the term “take” broadly to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  Even activities that are not designed or intended to harm a species, but that could do so indirectly, such as servicing a well, can constitute a take prohibited by the ESA. The ESA subjects any person who violates the statute or its implementing regulations to an array of civil and criminal sanctions.

A decision on whether or not to list the Sand Dune Lizard is due in June 2012.  Thus, oil and gas companies operating in areas of lizard habitat, or where other candidate species may exist, need to be thinking proactively about the impacts of a listing.  Some of the tools available to operators can be utilized in advance of listing and can provide important protections and assurances if the species is ultimately listed.  One significant opportunity for an oil and gas company to potentially insulate itself from ESA liability is a conservation agreement. 

Specifically, a Candidate Conservation Agreement with Assurances (“CCAA”) is an agreement, whereby non-federal property owners commit to implement voluntary conservation measures for a candidate species, and in return receive regulatory assurances that additional conservation measures will not be required and additional land, water, or resource use restrictions will not be imposed should the species become listed in the future.  Furthermore, the proactive conservation efforts performed through CCAAs may remove or reduce perceived threats to the covered species, so that FWS could determine that listing the species under the ESA is unnecessary. 

For example, CCAAs have been developed for the Sand Dune Lizard in Texas and New Mexico, and the Lesser Prairie Chicken in New Mexico.  Since assurances under these agreements are only available to operators and land owners who enroll before a species is listed, time is of the essence for projects or operations that may harm candidate species currently under evaluation, particularly the Sand Dune Lizard. 

For oil and gas operators who fail to take any action, the listing of a candidate species affected by development as threatened or endangered could immediately bring their operations to a halt.  FWS estimates that it could take as long as a year or more for an operator to obtain its own individual “take” permit.  Thus, whether or not these species become listed is certainly something to keep an eye on for oil and gas operators and their counsel.