Cape Wind Project Suffers Another Blow: Is This The Knock-Out?

Posted on July 13, 2016 by Jeff Thaler

The U.S. Court of Appeals for the District of Columbia Circuit on July 5 issued a ruling that the federal government violated the Endangered Species Act and the Administrative Procedure Act in approving the long-running, oft-litigated Cape Wind offshore wind project proposed to be built off the Massachusetts coast.  Senior Judge Randolph, writing for an unanimous panel, confirmed the District Court’s rejections of a number of the claims advanced by Plaintiffs (who included the Public Employees for Environmental Responsibility, the Town of Barnstable, and the Alliance to Protect Nantucket Sound), but reversed the District Court on two key points.

The proposed Cape Wind project, which has been the subject of voluminous news coverage and many court cases for well over a decade, sought to construct 130 3.6 MW turbines in shallow waters near Nantucket.  Challenges have included scenic impacts; Native American concerns that the project would will block their sunrise views across the sound, disturb ancestral burial grounds, and perhaps disturb cultural relics; and issuance of submerged land leases required by the project. Financial hurdles seemed to put the project into a death spiral two years ago, but quietly the project developers have continued legal fights to defend the permits and approvals previously issued. They have largely been successful—until this month.

Early on, biologists with the U.S. Fish and Wildlife Service (“FWS”) had recommended that the wind turbines be shut off during limited periods of highest risk to two birds listed under the Endangered Species Act-- the piping plover and roseate tern.  However, the FWS ultimately rejected that conservation measure on the grounds that it would impair the financial feasibility of the project. The Court of Appeals held that the FWS’s action was arbitrary and capricious.  The Court further held that the project cannot proceed without compliance with the Migratory Bird Treaty Act and without further analysis of environmental impacts pursuant to the National Environmental Policy Act. 

In conclusion, the Court stated:   “We reverse the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and we vacate both statements.” A copy of the ruling is here.

District Court Sharpens ESA’s Teeth in Wolverine Decision

Posted on May 31, 2016 by Gregory Bibler

In an 85-page decision filled with rebuke, Defenders of Wildlife v. Sally Jewell, the U.S. District Court for the District of Montana found in April that the U.S. Fish and Wildlife Service’s decision to withdraw its proposeda listing of the wolverine as “threatened” under the Endangered Species Act was arbitrary, capricious, and contrary to the ESA’s requirement that decisions be based on the “best available science.”

The court criticized the Service for mischaracterizing scientific consensus as “substantial disagreement,” and for employing an inappropriately high standard of absolute certainty.   The court suspected the Service’s sudden loss of confidence in its listing decision resulted not from scientific diligence but, instead, from “immense political pressure” exerted by a handful of western states. 

Although the decision is replete with references to wolverine denning statistics, sophisticated snow cover assessments based on satellite imagery, and emerging climate models, the court made clear that the Service changed its decision based on policy considerations, not science. That the wolverine depends on persistent snow cover to reproduce, and “relies on snow for its existence at the most fundamental level,” the court said, was not disputed.  That climate change is occurring, and will in the future result in reduced snowpack and loss of denning habitat, within the wolverine’s U.S. range also was not disputed.  The western states, however, questioned how reliably the Service could predict either the pace or the foreseeable impacts of climate effects far into the future.  The states, and many senior staff within the Service, also questioned whether the ESA is an appropriate or workable tool to address the large-scale effects of climate change on North American ecosystems. 

Alaska, for example, linked the wolverine listing decision to what it claimed were equally flawed decisions to list the polar bear and various species of ice seals, based on what it said were dubious models and speculative future climate effects.  Idaho questioned whether the Service’s use of models and projections would eventually lead it to list every species in the U.S., based on predictions of widespread and pervasive climate impacts throughout the country.  Two of the Service’s own Regional Directors echoed the refrain, saying that demands for listing particular species based on predicted effects of climate change “will become a common source of petitioned actions and threaten the Service’s resources to address priority issues.”

The court dismissed these concerns without hesitation:  “It is the undersigned’s view that if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation.” 

If the Service reinstates its prior listing decision, the wolverine will join the polar bear, ringed and bearded seals, and other species listed because they rely on snow and ice “for existence at the most fundamental level.”  The policy challenges at the core of the Service’s listing decision, however, remain unresolved.  Species affected by climate change are not limited to those dependent on snow and ice.  If climate trends continue, the list of species affected will grow and grow.  The ESA can do nothing to reverse or decelerate those impacts.  The Service cannot build an ark to save every species ultimately displaced or threatened.  Any realistic hope for slowing the loss of biodiversity in the U.S. must depend, therefore, on comprehensive and lasting reforms to address the underlying causes of climate change, and not the predicted effects of climate change at the species level.

The Six Month Extension for a Listing Determination of the Lesser Prairie Chicken and Relevant Considerations Moving Forward

Posted on August 13, 2013 by Donald Shandy

The status of the Lesser Prairie Chicken has received a lot of attention over the last two years, but those affected by a listing decision will have to wait another six months to know whether the notorious bird will receive protection under the Endangered Species Act.  As part of a comprehensive settlement agreement in the case of In re Endangered Species Act Section 4 Deadline Litigation 2011, the U.S. Fish and Wildlife Service (“FWS”) agreed to make listing determinations under the Endangered Species Act (“ESA”) for more than 250 species by the end of 2016.  Pursuant to this agreement, on December 11, 2012, the FWS published its proposal to list the LPC as a threatened species under the Act, with a final determination to be made by September 30, 2013.  However, on July 9, 2013, the FWS announced a six month extension on the final listing determination, under an ESA provision that allows the agency to postpone decisions where there is significant scientific disagreement regarding the sufficiency or accuracy of the available data relating to the decision. In its notice, the FWS noted that it will solicit information to clarify and fully analyze issues raised during the initial comment period. These issues include whether the FWS has considered the effectiveness of conservation practices of the oil and gas industry and the agricultural industry, and the accuracy of short-term and long-term population trends of the LPC, particularly as it relates to climate change. 

Moreover, the FWS reopened the comment period for an additional thirty days.  Among other things, the FWS specifically requests comments on the application of the Lesser Prairie-Chicken Interstate Working Group’s draft rangewide conservation plan, developed in conjunction with the states of Kansas, Oklahoma, Colorado, Texas, and New Mexico to preserve LPC habitat and increase the LPC population.  Over the six month period, the FWS will obtain additional information and achieve better clarity on these and other issues prior to the final listing decision on March 30, 2014.  Until then, voluntary efforts to support the species’ population are sure to continue in full force, with the goal of helping the LPC population recover to the point where the protections of the ESA are not necessary.

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.

Will Sage Grouse Conservation Efforts Fly?

Posted on March 15, 2013 by Mike Brennan

The clock is ticking on the U.S. Fish & Wildlife Service’s 2015 deadline to decide whether to list the Greater sage grouse under the Endangered Species Act.  In the states where the grouse still exists - Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Colorado, Utah and the Dakotas - ambitious efforts seek to protect the species and make an ESA listing unnecessary.  Wyoming – uniquely blessed with some 54% of the remaining sage grouse in the world, spread across 32 million acres of sagebrush habitat – is both ground zero for and the leader in a landscape-scale experiment in collaborative wildlife conservation.

This saga began in January 2005, when FWS decided not to list the species.  Since then, sage grouse lawsuits have flown fast and furiously.  Litigation was highly predictable, given the history of the ESA, the magnitude of the impacts associated with a potential listing, and the setting; conflict regarding wildlife conservation needs, goals and opportunities runs deep in the West, particularly in the “Sagebrush Sea,” where distrust of the federal government and its institutions often seems learned from birth.  The most remarkable aspect of the sage grouse saga is that history and location notwithstanding, it has brought together federal, state and private sector interests across much of the western United States who seek to conserve the species and thereby make listing unnecessary.

Beginning in 2007, the landscape of sage-grouse conservation began to change, led by the State of Wyoming and its “Core Area Policy,” which was designed to identify, maintain, and enhance sage-grouse habitat and populations within the species’ core habitat areas.  The pace quickened in 2011, when Oregon followed with a similar core-area approach.  Wyoming Governor Matt Mead and Secretary of the Interior Ken Salazar hosted a sage-grouse conservation meeting in Cheyenne involving federal and state representatives, that. focused on the development of a coordinated, landscape-level conservation strategy, seeking a collaborative conservation effort at the state, federal and local levels.

Following the Cheyenne summit, the states of Utah, Idaho and Nevada initiated new efforts to develop their own sage grouse management plans, while various federal agencies are vigorously pursuing their own sage grouse conservation efforts.  The Bureau of Land Management and the U.S. Forest Service are revising their management plans in Wyoming, Colorado, North and South Dakota, Utah, Montana, Idaho, Nevada, Oregon, and California to incorporate consistent sage grouse conservation objectives and measures.  The Natural Resource Conservation Service’s Sage-Grouse Initiative is focusing on conservation grant and technical assistance programs to improve sage-grouse habitat and rangelands productivity.  The Department of Agriculture announced an additional $18.2 million Grassland Reserve program in 2011 to help ranchers in Wyoming, Idaho and Utah conserve critical sage-grouse habitats.

 And on March 8, 2012, Agriculture Secretary Vilsack and Secretary of the Interior Salazar announced the establishment of the Working Lands for Wildlife partnership program, a $33 million program to conserve sage grouse and six other species.

In addition to state and federal conservation efforts, ranching, mining, oil and gas and other interests are developing Candidate Conservation Agreements with Assurances (CCAAs) to provide for sage grouse conservation on private and other nonfederal lands in Wyoming, Idaho, and elsewhere.  FWS has recently published a draft sage grouse CCAA to be available for Wyoming landowners, and numerous other local efforts are ongoing.

Whether these and other efforts can make an ESA listing unnecessary only time will tell.  Sage grouse still occupy some 160 million acres of land, making this a landscape conservation effort of heroic scale.  Skeptics, and history, would bet against it.  But if the state, federal, and private sector efforts are successful, it will stand as an historical moment in wildlife conservation, and as validation of the West’s author and historian laureate, Wallace Stegner, who wrote:

“This is the native home of hope.  When it fully learns that cooperation, not rugged individualism, is the pattern that most characterizes and preserves it, then it will have achieved itself and outlived its origin.  Then it has a chance to create a society to match its scenery.”
Wallace Stegner, The Sound of Mountain Water 38 (1980).

Last Dance / Last Chance…?

Posted on March 8, 2013 by LeAnne Burnett

Is the Lesser Prairie Chicken (“LPC”) dancing its last dance?  The little grouse, noted for stomping its feet and inflating the bright orange air sacs at the side of its neck, while emitting an eerie “booming” sound that echoes across the short grass prairie, has seen its numbers drop sharply in recent years.  On November 30, 2012, the U.S. Fish and Wildlife Service ("USFWS") proposed listing the LPC as "threatened" under the Endangered Species Act of 1973 ("Act").  Read Donald Shandy's December 13 post on possible impacts of the listing on the energy industry.  The LPC 's range, includes tens of thousands of acres in Oklahoma, Texas, New Mexico, Colorado and Kansas.

The Act prohibits all activities that would harm ("take") a species listed as endangered, unless the activities are otherwise exempted or permitted by the USFWS.  For threatened species, Section 4(d) of the Act gives the USFWS authority to tailor the take prohibitions to the particular conservation needs of the species.  Typically, that tailoring involves addressing habitat preservation.  Habitat fragmentation, modification and degradation within the species' range are the major threats to the LPC.  Historic agricultural and livestock grazing land use, and more recent land uses related to wind energy, transmission development, and oil and gas production present challenges to the LPC.  Uncontrollable forces, such as the persistent drought in the area, also impact the LPC’s habitat. 

For more than a decade impacted stakeholders have created and used voluntary tools to implement conservation actions that preserve the LPC’s range hoping to avoid a listing.  A Candidate Conservation Agreement ("CCA") is a voluntary conservation agreement with the USFWS to identify and implement measures designed to address threats to the candidate species.  Candidate Conservation Agreements with Assurances ("CCAAs") provide non-federal landowners with assurances that, as long as the landowners continue habitat conservation efforts, they will not be asked to undertake more than the agreed-upon conservation measures even if the candidate species is later listed or the CCAA is later modified.  The USFWS recently approved a CCAA for Oklahoma which is available through the Oklahoma Department of Wildlife.  The CCAA is free and voluntary, not dependent on the presence of LPCs on the enrolled property, and landowners may opt out at any time

CCAs and CCAAs may help avoid the listing, but if the LPC is listed, then the conservation measures undertaken through these agreements are already tailored to the particular conservation needs of the species and can become Section 4(d) requirements.  Either way, enrolling in voluntary programs and taking advantage of the opportunity to provide public comment and new ideas for preservation of the LPC may allow the LPC to keep on dancing.

The Recent Proposal to List the Lesser Prairie Chicken as Threatened and the Effect of a Final Listing on the Energy Industry

Posted on December 13, 2012 by Donald Shandy

On November 30, 2012, the United States Fish and Wildlife Service (“FWS”) announced its proposal to list the Lesser Prairie Chicken (“LPC”) as threatened under the Endangered Species Act (“ESA”).  The proposed rule resulted from a comprehensive 2011 settlement agreement approved by the D.C. Circuit in In re Endangered Species Act Section 4 Deadline Litigation 2011, whereby FWS agreed to review over 250 candidate species and make a determination as to each species whether to issue a proposed listing rule or to issue a finding that the listing is not warranted, over a six-year period.  Under the ESA, an endangered species is one that is in danger of extinction throughout all or a significant portion of its range, while a threatened species is likely to become endangered within the foreseeable future.  FWS will make a final determination on whether to list the LPC as threatened by September 30, 2013. 

The LPC is found across a five-state span, including Colorado, Oklahoma, New Mexico, Texas, and Kansas. Activities identified by FWS as threats to the species include habitat loss, fragmentation, modification, and degradation within the species’ range.  Other threats include land uses related to wind energy and transmission development.  If FWS ultimately lists the LPC as a threatened species, energy industry operations that could potentially harm the species would be affected.  Specifically, due to the species’ avoidance of tall, vertical objects, FWS has identified oil and gas wellheads and wind turbines as features that may cause habitat displacement for the bird.  Section 9 of the ESA prohibits the “take” of a listed wildlife species by a private or public entity.  Because “take” is defined quite broadly under the ESA, even activities that are not designed or intended to harm a species, but could do so indirectly, such as operation of these tall structures, could potentially constitute a violation.

Unlike endangered species, in regard to a species listed as threatened, FWS has the authority under ESA Section 4(d) to tailor the “take” prohibitions to the conservation needs of the species. The FWS may use its Section 4(d) authority to incentivize participation in conservation plans that will support recovery of the LPC.  Additionally, there are conservation plans that may be entered into by energy companies before a species is listed under the ESA.  Called Candidate Conservation Agreements with Assurances (“CCAAs”), these agreements, allow non-federal property owners to commit to implement voluntary conservation measures for a candidate species in return for 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 threats to the covered species, so that listing the species under the ESA may become unnecessary.  CCAAs, therefore, provide a significant opportunity for a compliant energy company to potentially insulate itself from liability in the event the LPC is listed as threatened.  CCAAs have been developed for the LPC in New Mexico and Texas, and Oklahoma, under the leadership of the Oklahoma Department of Wildlife Conservation, has submitted a CCAA to FWS for review.  Notably, because the final listing determination for the LPC must be made September 30, 2013, time is of the essence for energy companies to consider entering into a CCAA.

See the FWS’s Proposed Listing
See the FWS’s News Release Regarding the Proposed Listing
See the FWS’s Facts Regarding the Proposed Listing

Consultation Under the Endangered Species Act on the Klamath River

Posted on June 15, 2012 by Larry Ausherman

The Ninth Circuit’s en banc opinion in Karuk Tribe of California v. United States Forest Service belongs on your summer reading list.  It holds your attention on two levels.  First, the majority broadly construes consultation requirements of the Endangered Species Act (“ESA”) in the context of mining in National Forests.  Then, the dissent provides a memorable critique of “extreme environmental decisions” by the Ninth Circuit.

The case applies the ESA to regulation by the United States Forest Service of small-scale gold mining on the Klamath River in the Klamath National Forest in northern California.  The river is critical habitat for endangered salmon, and the river’s bed also contains gold deposits that are mined by miners who hold rights under the General Mining Law of 1872.  Mining methods include suction dredging of the river bed, and views differ about the effects of mining on the salmon.  The Forest Service mining regulations at issue divide mining activities within National Forests into three categories:  those that “will not”, “might,” and “will likely” cause significant disturbance of surface resources.  For planned mining activities that either “might” or “will likely” cause such disturbance, the miner must file a notice of intent to operate (“NOI”).  After reviewing the NOI, the District Ranger determines whether a plan of operations is also required.  A plan of operations is more detailed than an NOI and is required only for mining that “will likely” cause significant surface resource disturbance.  If the Forest Service determines that significant surface disturbance is not likely, the NOI satisfies the requirements of the regulations.  But the ESA may impose additional requirements.  It requires the Forest Service to consult with the Fish and Wildlife Service before taking discretionary “agency action” that “may affect” a species listed as threatened or endangered.  Otherwise, consultation is not required. 

The fundamental issue in Karuk Tribe is whether a Forest Service decision not to require a plan of operations was “agency action” requiring consultation under the ESA or mere agency inaction that does not require consultation.  Several miners filed NOIs for proposed operations, and in response to the NOIs the District Ranger essentially imposed conditions but decided not to require plans of operations.  The Ranger did not consult the United States Fish and Wildlife Service in reaching that decision.  The Karuk Tribe sued the Forest Service and asserted consultation was required.  The Forest Service defended its failure to consult by arguing that the NOI was a mere notice and its action on the NOI was only a decision not to regulate, rather than “agency action” under the ESA.  The district court ruled in favor of the Forest Service.  In 2011, a divided panel of the Ninth Circuit affirmed the district court’s holding that such consultation was not required because the District Ranger’s decision was not “agency action” under the ESA.  But upon rehearing the case en banc, the court reversed its previous decision and found that the District Ranger’s decision rose to the level of “agency action” and triggered consultation requirements of the ESA.  The court reasoned that the decision was agency action because when the Forest Service considered the NOIs, it affirmatively authorized mining to proceed and the mining may affect the salmon. 

The dissenting opinion is essential reading for lawyers who have represented clients entangled in extensive environmental regulation.  It ventures well beyond the issues presented by Karuk Tribe to criticize various Ninth Circuit environmental decisions as “extreme”.  Featuring art and prose from Gulliver’s Travels, and invoking works of Dante and Aldous Huxley, the dissenting opinion urges that the court exercise judicial restraint in construing environmental laws.  Finally, the dissent recounts specific examples of harm to employment, industry, and local government that it attributes to the court’s creation of “burdensome, entangling environmental regulation out of the vapors”.  You might take this one to the beach as long as your destination is not the Island of Lilliput.

Endangered Species Act Still a Complication for Energy Development

Posted on August 3, 2011 by Pamela Giblin

Since its inception and the early battles over the snail darter and the Tennessee Valley Authority’s Tellico Dam in the 1970s, the Endangered Species Act (ESA) has been substantially entangled with energy production in the United States. Energy development is no less ensnared today by the Act. Recent significant ESA activities affecting the energy sector include: proposed listing of the dunes sagebrush lizard, which is found in the middle of one of the most prolific oil and gas fields in the U.S.; a suit for injunction of a massive solar power development in the Mojave Desert; and a settlement proposal between the Department of Interior and conservation groups setting an aggressive timetable for future ESA listing decisions involving over 250 species. All of these could have wide repercussions on energy development for some time. This post provides the latest update on how the ESA is affecting the energy sector and outlines some ways that interested parties can play a part in the process.


Recent Listing Proposals and Litigation Affecting the Energy Industry

A number of conservation organizations have filed petitions with the U.S. Fish & Wildlife Service (Service or FWS) to “list” species as endangered or threatened throughout the U.S. When the Service has delayed making listing determinations, conservation organizations have followed up with litigation against the Service.

On July 12, 2011, the Center for Biological Diversity (CBD) announced that it was dropping its opposition to a comprehensive settlement agreement between the Department of Interior and WildEarth Guardians encompassing 13 listing suits filed by WildEarth Guardians and consolidated in the D.C. District Court. The settlement would establish work plans and timelines for the FWS to take key steps in the ESA process on over 250 species. The goal is to make listing decisions by 2016 for all species identified on FWS’s current “candidate list”. The listing of several species covered by the settlement agreement - including the greater sage grouse, the spot-tailed earless lizard, the lesser prairie chicken, and mollusks - could have major effects on the energy industry. The settlement agreement has not been finalized, due in part to a pending motion to intervene by a hunting group. But even the prospect of a set timetable for the listing of certain species has created difficulties for energy development.


The potential listing of species like the greater sage grouse is problematic for alternative energy and the oil and gas sector because they can be found in a number of areas where upstream oil and gas activities and alternative energy projects now exist or are planned. One such area is the energy prolific Powder River Basin area of Wyoming. Sage grouse are also found in Colorado, and in a 2008 rulemaking the Colorado Oil and Gas Conservation Commission proposed a number of provisions that were designed to protect the sage grouse and other sensitive species such as the mule deer, including restrictions on oil and gas well development in "sensitive wildlife habitat". In addition, those provisions gave the Colorado Division of Wildlife a prominent role in the Application for Permit to Drill process. The provisions were actively opposed by industry and became the source of controversy during the rulemaking process.


Recent litigation over the desert tortoise in California’s Mojave Desert shows how the ESA can affect planned developments even after initial ESA reviews show no adverse effects. On June 27, 2011, the conservation group Western Watersheds sought a preliminary injunction and temporary restraining order (TRO) to stop construction of a $1.4 billion solar power plant project. Western Watersheds argued that the project’s impacts on desert tortoises were underestimated during the Bureau of Land Management’s review and approval process. While the TRO was denied, a hearing on Western Watersheds’ motion for a preliminary injunction is set for August 1, 2011.


FWS’s December 2010 proposed listing of the dunes sagebrush lizard in New Mexico and Texas as endangered specifically identified oil and gas, wind and solar energy activities as a threat. This has motivated stakeholders to commence an innovative joint Candidate Conservation Agreement with Assurances (CCAA) and Habitat Conservation Plan (HCP) process to insulate these energy sectors from potential adverse effects resulting from a listing. The use of more “programmatic” CCAAs and HCPs tied to industry activities as opposed to specific properties has taken on increasing importance to the energy sector as it becomes common for listing petitions and proposals to single out industry as a threat to species.


Another example involves litigation brought in March 2010 by The Aransas Project against several officials at the Texas Commission on Environmental Quality (TCEQ). That lawsuit, which was filed in United States District Court for the Southern District of Texas, Corpus Christi Division, alleges that TCEQ is committing “takes” of endangered whooping cranes when it allocates water in the Guadalupe and San Antonio rivers and prevents sufficient flows from reaching Nueces Bay, where the whooping crane is found. To the extent that it seeks wide declaratory and injunctive relief, including relief against a state agency and curtailment of existing water rights, the suit could set a significant precedent for future ESA suits related to water rights and actions by state agencies.


Keeping Up with the Evolving ESA Landscape

As is evident from the description of these recent developments, there are a number of steps in the process of listing a species as endangered or threatened under the ESA. As such, there are also a number of opportunities – both formal and informal – for members of the energy industry to weigh in on this process before the Service reaches the point of actually adding a species to the endangered and threatened species list. In addition, there are opportunities to initiate or intervene in litigation involving FWS with respect to listing actions and other ESA determinations.


To help develop a comprehensive strategy to anticipate and respond to potential challenges posed by ESA and related regulatory activities, interested parties should:

  • Survey Potential State and Federal Species and Habitat Listings
  • Survey Pending and Threatened FWS Litigation
  • Keep Abreast of New and Creative Uses of the ESA and Similar Statutes by Environmental Groups; and
  • Assess Risk to Operations and Evaluate Need for Possible Comments on Listings, Intervention in Litigation, or Subsequent Monitoring of Key Listing Decisions and Litigation.

By closely following the constantly evolving ESA landscape and taking advantage of strategic opportunities to influence the listing process and get involved in ESA litigation, the energy such parties can seek to influence the outcome of a process that can significantly impact the ability of companies to engage in energy production.

Eleventh Circuit Wades into the Everglades on ESA Issues, Miccosukee Tribe v. United States, No. 08-10799

Posted on May 21, 2009 by Patricia Barmeyer

The Eleventh Circuit has waded, again, into the ongoing debates over restoration of the Everglades. In addressing yet another lawsuit filed by the Miccosukee Tribe, the Court largely upheld the Fish & Wildlife Service’s delicate balance between the competing and inconsistent habitat needs of the Cape Sable seaside sparrow and the Everglade Snail kite, both endangered species. The seaside sparrow needs stable low water levels below a certain water control structure; the kite’s habitat is destroyed by the resulting rising water levels in the impoundment. The FWS issued a biological opinion allowing the Corps of Engineers to operate the structure to avoid extinction of the sparrow and to conduct an incidental take of the kite. While largely affirming the agency, the Eleventh Circuit reversed on the issue of the trigger that would require initiation of consultation under Section 7 and, along the way, made new law in this circuit on several important issues.

First, the court rejected the tribe’s argument, often advanced by conservation groups in ESA litigation, that the ESA requires that FWS “give the benefit of the doubt to the species.” The court held that this language, taken from a conference committee report, does not mean that the FWS is required to issue a jeopardy opinion if the evidence is evenly balanced between likely jeopardy and likely no jeopardy. Rather, the Eleventh Circuit explained, the language was intended to prevent FWS from shirking its consultation duties by relying on scientific uncertainty, but did not require any substantive result. The court held that “the need to give a species the benefit of the doubt cannot stand alone as a challenge to a biological opinion.”

 

Second, the court held that the FWS Consultation Handbook, which is not a formal rule, is nevertheless entitled to Chevron deference because it was adopted after notice and comment, citing Nw. Ecosystem Alliance v. United States Fish & Wildlife Service, 475 F.3d 1136, 1142-43 (9th Cir. 2007).

Third, the court rejected the argument that negative impacts on a species’ critical habitat must be permanent to amount to “adverse modification” under the ESA. Writing for the court, Judge Carnes noted: “It is not enough that the habitat will recover in the future if there is a serious risk that when that future arrives the species will be history.”

Finally, the Eleventh Circuit invalidated the incidental take statement because it used a habitat indicator -- specific water levels-- as a proxy to establish the trigger that would require the agency to reinitiate the Section 7 consultation process. The court held that the FWS’ use of a habitat indicator as a proxy, as provided for in the Consultation Handbook, fails Chevron step one, based on its conclusion that the legislative history of the ESA clearly indicates Congressional intent that actual population data must be used as the trigger for re-consultation, unless the agency demonstrates that it is impracticable to do so. Further, even if the agency can demonstrate the need to use a habitat proxy, the habitat proxy trigger must be addressed to the specific habitat needs of the species.

This decision, reviewing the FWS’ attempt to manage challenging species protection problems and breaking new ground on ESA legal issues, is sure to be much-cited and widely debated.

SALMON WARS IN THE PACIFIC NORTHWEST

Posted on November 24, 2008 by Kevin Beaton

Each year thousands of salmon and steelhead protected under the Endangered Species Act (“ESA”) migrate up and down the Columbia River and its tributaries and into the Pacific Ocean as part of the species’ cycle of life. Seemingly, each year armies of lawyers migrate to federal court to argue whether the federal government is carrying out its obligations to protect these species under the ESA. “As part of the modern cycle of life in the Columbia River system, each year brings litigation to the federal courts of the Northwest over the operation of the Federal Columbia River System (“FRCPS”) and, in particular, the effects of system operation on the anadromous salmon and steelhead protected by the Endangered Species Act.” National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005).

            2008 is no exception as the National Wildlife Federation, the state of Oregon and the Nez Perce Tribe have again filed a lawsuit in the United States District Court of Oregon against the federal government for allegedly failing to carry out their obligations under the ESA in the operation of the FRCPS. The precipitating event for the 2008 lawsuit, is a 2008 Biological Opinion authored by NOAA Fisheries pursuant to Section 7 of the ESA opining that if the action agencies, the U.S. Army Corps of Engineers (“COE”) and U.S. Bureau of Reclamation (“BOR”) carry out a comprehensive reasonable and prudent alternative (“RPA”) then jeopardy to the listed species and adverse modification to critical habitat will be avoided.

 

The portion of the FRCPS that is at issue in the 2008 litigation is a series of fourteen (14) federal hydropower dams authorized by Congress on the Columbia and Lower Snake Rivers which are operated by the COE and BOR. Congress has directed that the dams are for multiple uses including providing power to the Northwest, irrigation, transportation, recreation, flood control and protection of fish. The stakes are high in the litigation, if some of the dams are substantially modified, or breached as some Plaintiffs are advocating, industries, rate-payers and communities reliant upon the multiple uses of the FRCPS will be significantly affected. Thirteen separate salmon and steelhead species that live out a portion of their life cycle in the Columbia River and its tributaries have been listed as endangered or threatened under the ESA.

            The federal government’s attempt to operate the FRCPS in compliance with ESA has been mired in litigation for some 15 years. The science and the law surrounding the FRCPS’ compliance with the ESA is complex. Like 2008, the precipitating event for past litigation has been a § 7 consultation between NOAA fisheries and the COE and BOR and a Biological Opinion (BiOp) and Incidental Take Statement. In recent litigation the federal government has not fared well. For example the 2000 BiOp found that the FRCPS operation did jeopardize certain listed species but that jeopardy could be avoided if off-site mitigation and hatchery initiatives were implemented. The court found the 2000 BiOp was invalid as NOAA could not rely upon off-site and non-federal actions that were not reasonably certain to occur as an RPA. See NWF v. NMFS, 254 F.Supp. 2d 1196 (D.Or 2003).

            The federal government tried again with a 2004 BiOP which found no jeopardy to listed species and no adverse modification to critical habitat. The 2004 BiOp was different from prior BiOps in so far as NOAA Fisheries attempted to segregate the effects of the existence of the 14 dams from the operation of the dams claiming that only the operation of the dams was discretionary and subject to Section 7 consultation. The lower Court struck down the 2004 BiOp on a variety of grounds finding that NOAA improperly separated the existence and operation of the dams in their § 7 consultation, NOAA did not properly take into consideration how the operation of the dams would affect recovery of the listed species and their critical habitat and that the actions relied upon were too uncertain to occur. The Ninth Circuit affirmed the lower Court decision in its entirety. See National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008). The Ninth Circuit did note that in considering the affect of the agency action on the potential recovery of the species in connection with a Section 7 consultation, NOAA Fisheries did not have to first develop a recovery plan consistent with the requirements of Section 4(f) of the ESA.

            While the appeal was pending before the Ninth Circuit, NOAA Fisheries under some prodding from the lower Court embarked upon an unprecedented collaboration with the four affected states (Washington, Oregon, Idaho and Montana) and eight Indian tribes to reach consensus on the appropriate methodologies to evaluate the effects of the FRCPS on listed species, operational modifications focusing on each of the listed species and hundreds of millions of dollars in funding commitments to the Tribes to carry out mitigation. In developing the 2008 BiOp and RPA, NOAA Fisheries also adopted a “trending to recovery standard” in order to fulfill the directive from the Court concerning the evaluation of survival and “recovery” in a Section 7 consultation. The 2008 BiOp finds that operation of the FRCPS for the next ten (10) years with implementation of the comprehensive RPA will avoid jeopardy to the thirteen species, avoid adverse modification to critical habitat and future recovery of the protected species will not be compromised by implementation of the RPA.

            The Plaintiffs quickly challenged the 2008 BiOp arguing it is legally and technically flawed and more of the same. The federal defendants, a trade association, three states (Washington, Idaho and Montana) and one Tribe argue that based on Court directives the 2008 BiOp got it right this time. The Defendants argue that Plaintiffs challenge is nothing more than a disagreement on the science and that the court should defer to NOAA Fisheries on these issues. Of interest to Clean Water Act attorneys, one of the Plaintiffs (“NWF”) argues that the incidental take statement (“ITS”) issued as part of the 2008 BiOp is equivalent to a “permit” under § 401 of the Clean Water Act and therefore requires water quality certification from the states. If the Plaintiff prevails on this novel theory, it means that potentially four states and three Tribes would need to issue a 401 certification that the ITS will comply with state and tribal water quality standards before the ITS would go into effect.

            A preliminary injunction and summary judgment hearings are set in January 2009. If the Court finds that the disputes surrounding 2008 BiOp are basically scientific disputes a recent Ninth Circuit case could be beneficial to the federal defendants. See, Lands Council v. McNair, 537 F.2d 981 (9th Cir. 2008). In Lands Council, the court noted that federal courts should defer to the scientific judgments of a federal agency when reviewing agency action under the Administrative Act Procedures. Stay tuned to the outcome of this litigation to see if the “cycle of life” of litigation in FRCPS continues or takes a breather to give the federal government, the states and tribes a breather to implement the 2008 BiOp.