Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog Critical Habitat

The U.S. Fish and Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach.

Western Carolina University photo/ John A. Tupy

The Supreme Court heard oral argument in the case on October 1, 2018.  The central issue in the case was whether an area that is not currently habitable by a species can be “critical habitat” for that species.  The Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

In its November 27, 2018 decision, the Court held that for an area to be designated “critical habitat” it must be “habitat” of the species.  Because the U.S. Court of Appeals for the Fifth Circuit Court concluded that “critical habitat” need not be limited to areas that are currently habitat, it did not give separate consideration to the meaning of the term “habitat.”  For this reason, the Court remanded to the Court of Appeals to consider the meaning of “habitat” in the first instance.  The Court also remanded the matter for the Court of Appeals to consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude the land arbitrary, capricious, or an abuse of discretion.

Prior to resolution of these questions on remand, the parties agreed to a consent decree that removed the private land from the species’ critical habitat designation, while preserving the remainder of the designated habitat.

In the Supreme Court proceedings, Nossaman represented the Energy and Wildlife Action Coalition and the San Luis & Delta-Mendota Water Authority, Coalition for a Sustainable Delta, and Western Growers Association as amici curiae in support of the landowners.

FWS Moves To Add Quantitative Measures To Recovery Plans

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (“Service”) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has “recovered,” including the number of established populations that would make the species eligible for delisting, as well as the new requirement that a Tier 2 population of the species must persist for at least 20 years.  This is one of the first of the approximately 182 recovery plans that the Service anticipates updating and revising pursuant to the Interior Department’s “priority performance goals,” which commits the Service to revising all Endangered Species Act (“ESA”) recovery plans to include quantitative criteria by September 2019.

ESA recovery plans are often described by the Service as “non-regulatory guidance documents that identify, organize and prioritize recovery actions, set measurable recovery objectives, and include time and cost estimates.”  The Service’s push to add quantitative criteria to recovery plans is intended to address the often lacking criteria for when a species has recovered and is therefore eligible to be removed from the list of Endangered and Threatened Species.  At present, the majority of ESA recovery plans establish qualitative criteria which would allow a species to be downlisted from endangered to threatened, but do not establish delisting criteria.

In addition to the pupfish, the Service has issued proposed revised recovery plans for the Delhi sands flower-loving fly (Rhaphiomidas terminates abdominalis) and the Florida salt marsh vole (Microtus pennsylvanicus dukecampbelli), among others.  For many of these species, the new recovery/delisting criteria will likely be irrelevant, as the species continue to decline in population and remain far from any sort of recovery.  However, this move does address a notable deficiency in the existing ESA recovery plans and will be an important one for species whose populations have rebounded since listing.

Environmental Groups Seek Protection for Mountain Lions in Southern California

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the “Commission”) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that “there is no reliable estimate of mountain lion abundance in California,” but includes estimates for several populations within the evolutionarily significant unit the petition describes.  The boundary of the proposed evolutionarily significant unit encompasses the area south of I-80 in northern California and west of I-5, including the Central Coast and much of the Central Valley, and all of southern California south of I-15, including portions of San Bernardino and Kern Counties and all of Imperial, Los Angeles, Orange, Riverside, and San Diego Counties.

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Fish and Game Commission Adds Four Bumble Bees to Candidate List

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Western Bumble Bee

Presently, no insects are listed as threatened or endangered under CESA.  Both the California Office of Administrative Law and the California Office of the Attorney General have previously taken the position that insects cannot be listed under CESA.  CESA defines candidate, threatened, and endangered species as “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant.”  The list does not include insects.  Counsel for the Commission indicated that because the California Fish and Game Code defines fish as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,” when the Legislature enacted CESA rather than include insects among the families of species that could be listed, it intended to incorporate bees, butterflies, beetles, and other insects via the definition of fish.

Nossaman is representing a statewide coalition of farming interests in the proceedings that opposed candidacy for the four bumble bee subspecies.


FWS Proposes Listing “Madtom” and “Waterdog”

Carolina madtom (Noturus furiosus)

The Carolina madtom (Noturus furiosus), a poisonous catfish.

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina madtom is a medium-sized bottom-dwelling freshwater catfish that the FWS describes as “the most strongly armed of the North American catfishes with stinging spines containing a potent poison in their pectoral fins.” According to the proposed rule, the species faces myriad threats, including declining water quality, fragmentation of riparian and instream habitats, and an increase in invasive predators. In order to address these threats, the FWS proposes listing the Carolina madtom as endangered under the ESA and designating approximately 257 river miles in North Carolina as critical habitat for the madtom.

The Neuse River waterdog is a slightly larger than average salamander that can grow up to 11 inches long. Native to the Tar-Pamlico and Neuse River basins in North Carolina, the Neuse River waterdog is a sight and scent feeder that ingests its prey whole, sometimes vomiting up and re-swallowing larger items. The FWS takes a slightly different tack with this non-migratory amphibian, proposing to list it as a threatened species under the ESA with an accompanying rule under section 4(d) of the ESA. FWS also proposes to designate approximately 738 river miles as critical habitat for the salamander.

In its notice announcing the proposed listing of the Carolina madtom and the Neuse River waterdog, the FWS asks for public comments concerning a range of issues, from the species’ biology and range, to what measures are necessary and advisable for the conservation of the species, to specific issues with the proposed critical habitat designations. The notice states that FWS will accept comments on the proposed rules until July 22, 2019.

New Executive Order Heralds Reorientation of State’s Species Protection and Water Management Policies

On April 29, 2019, Governor Newsom issued Executive Order N-10-19 (EO) directing the California Natural Resources Agency, the California Environmental Protection Agency, the California Department of Food and Agriculture, in consultation with the Department of Finance (collectively, the “agencies”), to prepare a 21st century water resilience portfolio to meet the needs of California’s communities, economy and environment in the face of water supply uncertainty, climate change and the state’s growing population.  The EO’s sweeping directive requires the agencies to reassess the 2016 California Water Action Plan priorities and develop regionally- and resource- integrated solutions to achieve the Executive’s goals.

Among other programmatic developments, the EO formally sets in motion the redirection of the State’s policies and actions relating to the protection of the Delta smelt (Hypomesus transpacificus) and other special status species.  In particular, the EO directs state agencies to assess the modernization of the Bay Delta water conveyance system with a single tunnel, rather than the previously proposed twin tunnel system.  In the days following the issuance of the EO, the California Department of Water Resources withdrew its approvals related to the twin tunnel system in order to commence environmental review and planning for the smaller conveyance system ordered by Governor Newsom.

Fish and Wildlife Service Moves to Downlist the American Burying Beetle as Threatened, Proposes 4(d) Rule

On May 3, 2019, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (“ESA”) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year lifespan. The species is known to occur in nine states ranging from South Dakota to Texas to Rhode Island. Historically, it is believed that the species was present in at least 35 states.  In making its determination that reclassification is appropriate the Service noted that “[a]t the time of listing, only two highly disjunct populations of a formerly widespread species were known to be extant, one in New England and one in eastern Oklahoma.”  The Service went on to state “[w]e now know there are more populations over a much wider area relative to the time of listing.”

The Service’s proposed 4(d) rule to accompany the proposed reclassification would prohibit all intentional take of the species occurring within suitable habitat. Beyond that, the rule would be tailored to prohibit incidental take in each of the three “analysis areas” (geographic areas that the American burying beetle is known to occupy).  In two of those areas (New England and the Northern Plains), incidental take would only be prohibited in suitable habitat when the take is the result of soil disturbance including actions such as grading, filling, soil excavating or topsoil stripping. Soil disturbance would also include application of pesticides that make habitat unsuitable. In the Southern Plains analysis area, take would only be prohibited on so-called “conservation lands,” which are defined by the proposed rule as lands included within the existing boundaries of Fort Chaffee in Arkansas, and McAlester Army Ammunition Plant, Camp Gruber and Cherokee Wildlife Management Areas, and the Nature Conservancy Tall Grass Prairie Preserve in Oklahoma. Where take occurs on conservation lands in compliance with a Service-approved incidental take permit, such take would not be prohibited under the proposed rule.

The proposed rule was issued under the terms of a stipulated order between American Stewards of Liberty, the Independent Petroleum Association of America, and the Osage Producers Association, as plaintiffs, and Federal Defendants, including the Service.  The stipulated order resolved a lawsuit brought by plaintiffs in the United States District Court for the Eastern District of Oklahoma.  Nossaman represented plaintiffs in the lawsuit.

Environmental Groups’ NEPA Challenge to USDA Wolf Killing Survives

On April 23, 2019, the U.S. Court of Appeals for the Ninth Circuit found that environmental groups have standing to challenge the federal government’s killing of gray wolves in Idaho without conducting additional analysis under the National Environmental Policy Act (“NEPA”). Western Watersheds Project et al. v. Grimm, No. 18-35075 (9th Cir. 2019).

Environmental groups brought an action against the U.S. Department of Agriculture Wildlife Services (“Wildlife Services”), alleging that NEPA requires Wildlife Services to prepare an Environmental Impact Statement and supplement its 2011 Environmental Assessment for the agency’s killing of Northern Rocky Mountain gray wolves (Canis lupus irremotus) in Idaho. The wolves were delisted under the Endangered Species Act in 2011, returning wolf management to state control. Since then, Wildlife Services has supported the Idaho Department of Fish and Game’s (“IDFG”) wolf management actions through non-lethal and lethal management strategies, such as aerial shooting operations, to protect livestock and ungulates.

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Endangered Species Act Spring Round Up

Over the last few weeks, besides proposing to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Species (which we covered here), the U.S. Fish and Wildlife Service (“Service”) has made a few other moves related to the Endangered Species Act (“ESA”).

On Monday, April 8, 2019, the Service published a final rule, removing one species from the List of Endangered and Threatened Species, adding 16 separate species to the list, and updating the existing entries for 17 more species.  Specifically, the Service added the following species to the ESA List: Gulf grouper (Mycteroperca jordani), Island grouper (Mycteroperca fusca), Common guitarfish (Rhinobatos rhinobatos), Blackchin guitarfish (Rhinobatos cernciculus), Daggernose shark (Isogomphodon oxyrhynchus), Brazilian guitarfish (Rhinobatos horkelii), Striped smoothhound shark  (Mustelus fasciatus), Maui dolphin (Cephalorhynchus hectori maui), Hector’s dolphin (Cephalorhynchus hectori hectori), Giant manta ray (Manta birostris), Oceanic whitetip shark (Carcharhinus longimanus), Taiwanese humpback dolphin (Sousa chinensis taiwanensis), narrownose smoothhound shark (Mustelus schmitti), spiny angelshark (Squatina guggenheim), Argentine angelshark (Squantina argentina), and Chambered nautilius (Natilus pompilius).  The Service also removed the Puget Sound-Georgia Basin Distinct Population Segment (“DPS”) of Canary rockfish (Sebastes pinniger) from the list, and updated the list entries to add critical habitat citations for the following species: Gulf of Maine DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), New York Bight DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), South Atlantic DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Cheasapeake Bay DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Carolina DPS of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), Main Hawaiian Islands Insular DPS of False killer whales (Pseudorca crassidens), Saimaa subspecies of rigned seal (Phoca hispida saimensis).  Finally, the Service made minor corrections to the list entries for the following species: Three foreign coral species (Cantharellus naumeae; Sierastea glynni; Tubastraea floreana), Dusky sea snake (Aipysurus fuscus), Banggai cardinalfish (Pterapogon kaudemi), the Tansanian DPS of African coelacanth (Latimeria chalumnae), Nassau grouper (Epinephelus striatus), and three angelshark species (Squatina aculeata; Squatina oculata; Squatina squatina).  The nonsubstantive corrections consisted of adding the citation to the final listing rule for each of the 10 species.

On Friday, April 5, 2019, the Service published a proposed rule, proposing to create a nonessential experimental population of California condor (Gymnogyps californianus) in the Pacific Northwest.  While the condor has been listed as endangered under the ESA since the ESA’s inception in 1973, this would establish a new population of condor in the Pacific Northwest, which is part of the condor’s historic range.  This experimental population would be subject to some amount of allowable take, because it is considered “nonessential” to the overall survival of the species.  The Service is accepting comments on this proposal until June 4, 2019.

On Thursday, April 4, 2019, the Service published a proposed rule finding that the petitioned action to list the eastern hellbender salamander (Cryptobranchus alleganiensis alleganiensis) as endangered or threatened was not warranted.  The proposed rule, however, found that a DPS of the species in Missouri should be listed as endangered under the ESA.  While the Ozark hellbender subspecies (Cryptobranchus alleganiensis bishopi) is already listed as endangered, the population is Missouri is a distinct subspecies.  The Service is accepting comments on its proposal to list the Missouri DPS until June 3, 2019.

On Thursday, April 4, 2019, the Service also published a notice of its finding that a petition to list eight species under the ESA was not warranted.  The species at issue were the Arkansas mudalia (Leptoxis arkansensis), Ashy darter (Etheostoma cinereum), Barrens darter (Etheostoma forbesi), Chihuahua scurfpea (Pediomelum pentaphyllum), Coldwater crayfish (Orconectes eupunctus), Eleven Point River crayfish (Faxonius wagneri), Spring River crayfish (Faxonius roberti), and Red-crowned parrot (Amazona viridignenalis).  The Service requested that any new or additional data on these species be submitted to the relevant regional offices.

Finally, on Friday, April 12, 2019, the Service published a proposed rule regarding the greater sage grouse (Centrocercus urophasianus).  Specifically, Friday’s proposed rule reopens the comment period regarding the Service’s 2013 proposal to list the bi-state DPS of greater sage grouse as threatened under the ESA and to designate critical habitat for the DPS.  The comment period will remain open for 60 days, and the Service intends to publish a final rule regarding the listing of the bi-state DPS and its critical habitat no later than October 1, 2019.  For our prior coverage on the greater sage grouse, please refer to our earlier posts here and here.