Court rules on agency interpretation of statutes regarding incidental take

Posted February 16, 2016

 

A U.S. District Court in Puerto Rico has determined that the Endangered Species Act does not require agencies to monitor incidental take in every location where take occurs. Critically, the court concluded that it can only interfere with an agency’s interpretation of a statute if that interpretation is unreasonable.

In Center for Biological Diversity v. National Marine Fisheries Service (NFMS), plaintiffs challenged a recent NFMS Biological Opinion concluding that the incidental take on elkhorn and staghorn coral, resulting from continued fishing levels for parrotfish and surgeonfish, would not jeopardize their existence or impact their habitat in the U.S. Caribbean. The coral are a “threatened species” under the Endangered Species Act (ESA).

The U.S. Fish & Wildlife Service issues incidental take permits to private, non-federal entities undertaking projects that might result in the take of an endangered or threatened species. Per the ESA, 'take' means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Application for incidental take permits is subject to certain requirements, including preparation of a conservation plan by permit applicants.

In this case, NMFS argued that it could use its monitoring results in St. Croix as a proxy for its take requirements in Puerto Rico and St. Thomas/St. John. Plaintiffs argued, on the other hand, that the Revised Incidental Take Statement omitting monitoring requirements in St. Thomas/St. Johns and Puerto Rico violated the Endangered Species Act.

The court found that NMFS's use of St. Croix as a proxy for the Puerto Rico and St. Thomas/St. John areas was reasonable despite plaintiffs’ contention that their method was not representative of coral populations elsewhere. The court determined that although NFMS’s decision to use St. Croix as a proxy was arbitrary, plaintiffs were unable to prove that St. Croix was an inadequate proxy for the rest of the U.S. Caribbean. Furthermore, the court found that plaintiffs did not offer legal authority supporting their theory that the Endangered Species Act requires monitoring incidental take “in every location where take occurs.”

The court also concluded that given the statutory and regulatory silence regarding the monitoring required of locations where incidental take occurs, they must defer to the agency's interpretation and may only interfere when it is unreasonable. In reaching this conclusion, the court cited Biodiversity Legal Found.v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998) which stated, “A challenge to an agency construction of a statutory provision must fail if, in light of Congress' ambiguity or silence, the agency's action ‘is a reasonable choice.’” 

(Image courtesy pixabay.com)

NOAA to Hold Nassau grouper Public Meeting

Posted November 24, 2014

The National Oceanic and Atmospheric Administration (NOAA) will hold a public hearing in St. Thomas, U.S. Virgin Islands, in December to hear public comments on the proposal to list the Nassau grouper (Epinephelus striatus) as threatened under the Endangered Species Act of 1973.

The meeting will be held on December 9, 2014, at 7 p.m. Atlantic Standard Time.

The Federal Register is available here.

Threatened Status and Critical Habitat Designation Issued for Gunnison sage-grouse

Posted November 21, 2014

On November 21, 2014 the U.S. Fish and Wildlife Service issued two final rules dealing with the Gunnison sage-grouse. 

The Gunnison sage-grouse is a bird species from parts of Colorado and Utah.  The first final rule, 79 FR 69191, added the Gunnison sage-grouse to the List of Endangered and Threatened Wildlife under the Endangered Species Act. The second final rule, 79 FR 69311, designated approximately 1.5 million acres of lands in Colorado and Utah as critical habitat for the Gunnison sage-grouse.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

 

Farm Groups to Remain on Gray Wolf Panel

Posted June 20, 2014

California Farm Bureau Federation (CFBF) and California Cattlemen’s Associations (CCA) leaders have decided to remain involved with the wolf management plan, despite their beliefs the wolf’s listing takes away options for protecting livestock, according to a Capital Press article by Tim Hearden available here. The Dallas Chronicle also published an article available here and KCET here.

Noelle Cremers, the CFBF’s natural resources and commodities director, said that she has known that there was a chance the wolf could be given protections under the California Endangered Species Act.

“I have always believed that what is best for livestock producers is also better for wolves, so if livestock producers have a broad set of tools at their disposal to protect their livestock, that will help train wolves to stay away from livestock,” Cremers said. “They are better off in wilderness areas where they’ll have no interaction with human activities.”

Maupin rancher Keith Nantz, president of the North Central Livestock Association, and Dufur Gap Road rancher Mike Filbin, one of the largest cattlemen in Wasco County, are seated on the committee, according to the Dallas Chronicle.

“This state needs to allow more flexible management of wolves,” said Nantz. “We are not against wolves but right now there’s no middle ground and no balance. Wolves are propagating and doing whatever they want and we need to make sure that our ranchers are compensated fairly for losses.”

In February, the California Department of Fish and Wildlife recommended against a vote to list the wolf, according to KCET.

The 3-1 vote took place shortly after two biologists with the Oregon Department of Fish and Wildlife confirmed the presence of two wolf pups in an area that previously had not been bred in decades.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

New Mexico Meadow Jumping Mouse Protected by Endangered Species Act

Posted June 11, 2014

The U.S. Fish and Wildlife Service (FWS) determined endangered species status under the Endangered Species Act of 1973 for the New Mexico meadow jumping mouse (Zapus hudsonius luteus). The Federal Register notice is available here.

The meadow jumping mouse can be found in Arizona, New Mexico, and Colorado, and will be added to the List of Endangered and Threatened Wildlife.

The rule is in effect July 10, 2014.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

Proposed Endangered Species Act Regulations Revise Protections for “Critical Habitat”

Posted May 27, 2014

The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service proposed two new rules and a policy related to their process of protecting and designating “critical habitat” for species under the Endangered Species Act (ESA), according to an article by JD Supra available here.  

Elizabeth Lake and Rafe Petersen of Holland & Knight LLP say the proposed rules “would radically change the regulatory definition and significance of ‘critical habitat,’ resulting in a considerable expansion of the impact of the ESA on private land.”

The first proposed rule would revise the definition of “adverse modification” of critical habitat.  The proposed rule responds to two court decisions that set aside the 1986 definition of “adverse modification.” 

The second proposed rule would amend the procedures related to designating “critical habitat.”  The rule would define the term “geographical area occupied by the species” as “the geographical area which may generally be delineated around the species’ occurrences, as determined by the Secretary (i.e., range).  Such areas may include those areas used throughout all or part of a species’ life cycle, even if not used on a regular basis (e.g. migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).”

The proposed policy aims to clarify how exclusions from “critical habitat” designation are considered, shifting to a case-by-case analysis and “focusing on conservation benefits both on the land and economics side.”

“Critical habitat” represents “the habitat essentials for a species’ recovery,” according to the agencies’ News Release is available here.

“Our goal in proposing these revisions is to make the process of designating and consulting on critical habitat more predictable, more efficient, and more easily understood,” said Gary Frazer, U.S. Fish and Wildlife Service Assistant Director for Ecological Services.  “We think these common-sense changes, reflecting lessons learned over the years, will improve conservation of species that need help and reduce the potential for conflicts and litigation.”

Elizabeth Ingram at Hydroworld said, here, “Hopefully, passage of these changes will, among other effects, shorten the time required for hydro projects to complete the endangered species consultation process during the Federal Energy Regulatory Commission licensing and relicensing process.”

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

Animal Welfare Groups to Pay Ringling Bros. $16 Million in Elephant Lawsuit

Posted May 15, 2014

Ending a 14-year long battle over the welfare of circus elephants, the Humane Society of the United States and other animal welfare groups have agreed to pay Feld Entertainment $15.75 million, according to an article by the Bradenton Herald available here.  The Associated Press and the Wall Street Journal also reported on the story here and here.

This settlement follows previous settlements of $9.3 million from the American Society of the Prevention of Cruelty to Animals (ASPCA) in 2012. 

“We hope this settlement payment and various court decisions that found against these animal rights activists and their attorneys, will deter individuals and organizations from bringing frivolous litigation like this in the future,” said Kenneth Feld, chairman and chief executive officer of Feld Entertainment.

In 2000, the Humane Society and co-defendants including a former employee Tom Rider, filed a lawsuit against Feld, parent company of Ringling Bros. and Barnum & Bailey Circus over the care of 43 Asian elephants.  The groups argued that the company violated the Endangered Species Act by improperly removing the Asian elephants from their habitat and abusing them.

In 2001, the case was dismissed, but an appellate court reinstated the case in 2003, provided that Rider could prove he was injured by the company’s care of the elephants.

The settlement also includes a case “Feld filed under the Racketeer Influenced and Corrupt Organization Act" (RICO).   During the “original suit, Feld found that the animal rights groups and their lawyers paid Rider $190,000 to be a paid plaintiff, which triggered the RICO suit, and found that Rider lied under oath.”

Feld has recovered more than $25 million in legal fees incurred defending the Endangered Species Act claims.

For more information on Animal Welfare and the Endangered Species Act, please visit the National Agricultural Law Center’s website here. 

Arkansas House Delegation Introduces “Common Sense in Species Protection Act”

Posted April 3, 2014

The U.S. House delegation from Arkansas recently introduced legislation that would require the U.S. Fish and Wildlife Service (FWS) to consider social and economic factors for landowners before issuing a Critical Habitat Designation (CHD), according to a press release from Rep. Rick Crawford’s (R-AR) office available here.  KY3 News also reported on the story here.

The Common Sense in Species Protection Act, H.R. 4319, is sponsored by Rep. Rick Crawford and co-sponsored by Rep. Tim Griffin, Rep. Steve Womack, and Rep. Tom Cotton.

“The Common Sense in Species Protection Act will ensure that a true economic impact study on the people, businesses, and municipalities in the proposed area will take place before any private or public property is put in a Critical Habitat Designation,” said Crawford. 

The bill has the support of various state and farm groups, including the Arkansas Farm Bureau.  

“Expanding the reach of the Endangered Species Act, through designating larger Critical Habitat Areas without taking into consideration their effects on agriculture, would add unnecessary burdensome regulations on farmers and ranchers,” said ARFB president Randy Veach.  Veach continued, “This could drastically affect the economy of the state’s largest industry, agriculture.”

For more information on environmental law, please visit the National Agricultural Law Center’s website here.  

Lesser Prairie Chicken Listed as “Threatened” Under the Endangered Species Act

Posted April 2, 2014

The U.S. Fish and Wildlife Service (FWS) recently announced its final listing of the lesser prairie-chicken as “threatened” under the Endangered Species Act (ESA), according to an article by Agri-Pulse available here.

A “threatened” listing means the species is likely to become in danger of extinction within the foreseeable future.

“The lesser prairie-chicken is in dire straits,” said the U.S. Fish and Wildlife Service Director Dan Ashe.  The population has been reduced by an estimated 84 percent over the last 15 years due largely to habitat loss and ongoing drought in the southern Great Plains.

FWS also included a final special rule under section 4(d) of the ESA to limit regulatory impact of the listing on landowners and businesses.  The rule allows five states, Texas, New Mexico, Oklahoma, Kansas, and Colorado, to continue to manage conservation efforts and not subject certain activities to further regulation.  

The rule also says that conservation practices through USDA’s Natural Resources Conservation Service’s Lesser Prairie-Chicken Initiative and through “ongoing normal agricultural practices on existing cultivated land” are in compliance with the ESA and not subject to further regulation.”

Agriculture Under Secretary for Natural Resources and Environment Robert Bonnie announced a renewed and expanded partnership with farmers and ranchers managing land with lesser prairie-chicken range, according to an NRCS news release available here.

“Our goal is to deliver a win-win for agricultural producers and wildlife,” said Bonnie.  “We want to help farmers and ranchers succeed for the long term while also protecting and improving habitat for the lesser prairie-chicken.  Often, what is good for prairie-chickens is good for ranching.”  More information on the Lesser Prairie-Chicken Initiative is available here.

For more information on environmental law and conservation programs, please visit the National Agricultural Law Center’s website here and here.

Rancher Group Critical of Nevada Plan to Protect Sage Grouse

Posted March 12, 2014

The Nevada Cattlemen’s Association recently urged its members to deny state Department of Wildlife employees access to private land in an effort to protest the agency’s proposals on protecting the sage grouse, according to an Associated Press article available here.

The wildlife agency “supports proposals favored by the U.S. Bureau of Land Management that would financially harm many ranchers” according to a statement by the Cattlemen’s Association.

Federal officials “are preparing a strategy to avoid the sage grouse’s listing as an endangered or threatened species,” given the economic consequences for ranching, mining and alternative energy development.

Wildlife department spokesman, Chris Healy, said that the controversy is a result of a “big misunderstanding that can be fixed by continued dialogue.”

“We have already scheduled a meeting with the board of the Nevada Cattlemen’s Association to explain our position and to remind them of our very good record of cooperation over major issues over the years,” Healy said.

Conservationists, on the other hand, are concerned that scientific opinions are being set aside.  Experts say 2 million sage grouse inhabited the West around 1805, while today, their number are estimated at about 200,000.

Some urge a solution that works for the benefit of all groups, according to a USA Today article available here.  The plan preferred by the Bureau of Land Management and the U.S. Forest Service would exclude or restrict new recreational facilities, wind and solar energy development and mineral development in sage grouse habitat.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

USFWS Reopens Comment Period for Proposed Designation of Critical Habitat

 

 

 

 

 

 

 

Posted September 4, 2013

The U.S. Fish and Wildlife Service (USFWS) announced that it will reopen the public comment period for a proposed designation of critical habitat for the Neosho mucket and rabbitsfoot mussels under the Endangered Species Act of 1973 (ESA), according to the announcement in the federal register, available here.  Sen. Mark Pryor (D-AR) and the Kansas FarmBureau requested that the USFWS reopen the comment period “to allow all interested parties an opportunity to comment on the proposed designation of critical habitat, draft environmental assessment, and draft economic analysis.” 

On October 16, 2012, the USFWS published a proposed rule to list the Neosho mucket as an endangered species and the rabbitsfoot as a threatened species under the ESA and to designate “critical habitat” for these two mussels.  The proposed designation for the Neosho mucket is approximately 779.1 kilometers or 484.1 miles of river in Arkansas, Kansas, Missouri, and Oklahoma.  The proposed designation for the rabbitsfoot is 2,664 kilometers or 1,655 miles of river in Alabama, Arkansas, Kansas, Kentucky, Illinois, Indiana, Mississippi, Missouri, Ohio, Oklahoma, and Tennessee.  The original comment period was reopened on May 9. 2013 for 30 days and reopened again on August 27, 2013.  This comment period ends on October 28, 2013.  Pursuant to a court-ordered deadline, however, USFWS must make a final determination on the listing of the two mussels by September 30, 2013.  As a result, the listing and the final determination on critical habitat will be published separately. 

The Chattanoogan reports that the USFWS estimates that the designation may cost $4.4 million to $5.9 million over 20 years, or $290,000 to $390,000 annually over the next 20 years.  According to the article, available here, the “majority of the costs are administrative and may be borne by the federal and state agencies, however, some costs may be incurred by local governments and businesses.” 

“Critical habitat” refers to “specific geographic areas that are essential to the conservation of a threatened or endangered species.”  The designation helps to ensure federal agencies and the public are aware of the mussels’ habitat needs.  The designation “does not set up a preserve or refuge and only applies to situations where federal funding or a federal permit is involved” and “does not allow access to private land.”