Groups Join Notice of Intent to Sue NMFS over Blue Whales

Yesterday, a group of environmental organizations, including the Center for Biological Diversity, Friends of the Earth, and Pacific Environment joined an earlier Notice of Intent to sue the National Marine Fisheries Service (NMFS) for the agency’s failure to implement the 1998 Blue Whale Recovery Plan issued under the Endangered Species Act (ESA). A press release can be read here.

Environmental Defense filed the original Notice of Intent to Sue in August. Yesterday's development gives CBD et al the right to sue NMFS for violation of the ESA after 60 more days have elapsed. The groups say they seek to prompt action, not to get embroiled in litigation. NMFS is part of the National Oceanic and Atmospheric Administration.

Environmental Groups Join DL and NJ Opposing Army Corps Dredging

On October 30th, as described in this earlier post, Delaware filed a suit to stop the U.S. Army Corps of Engineers from dredging the Delaware River for a new shipping channel. New Jersey joined the suit a few days later.

Yesterday, a coalition of environmental groups intervened in the suit, adding their own claims against the project, including alleged violations the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Clean Air Act (CAA), the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Act, the Fish and Wildlife Coordination Act, and Delaware State law. The groups include Delaware Riverkeeper Network, National Wildlife Federation, New Jersey Environmental Federation, Clean Water Action, and the Delaware Nature Society. You can read the groups' press release here, and an article from the Press of Atlantic City here. A hearing on a preliminary injunction is scheduled for December 8th.

Settlement in Gray Wolf Case

Defenders of Wildlife announced Friday that a coalition of environmental groups had reached a settlement with the Fish and Wildlife Service (FWS) in their effort to ensure protection for the endangered mexican gray wolf. These groups, represented by the Western Environmental Law Center, included Defenders of Wildlife, the Center for Biological Diversity, Western Watersheds Project, New Mexico Audubon Council, New Mexico Wilderness Alliance, University of New Mexico Wilderness Alliance, The Wildlands Network, Sierra Club, and Grand Canyon Wildlands Council.

Mexican gray wolf populations began to drop in the early 1900s due to ranching and development in the Southwest, and entirely disappeared from the wild by the 1970s. After being listed under the ESA in 1976, it was bred in captivity and finally reintroduced in 1998. (You can see a FWS chronology of the wolf's ESA recovery program and its milestones here.)

Just a few years later, in 2003, the Bush Administration handed control of managing mexican gray wolf populations in Arizona and New Mexico to the federal and state "Adaptive Management Oversight Committee," which was led by an official from Arizona Game and Fish. The Committee applied a set of "standard operating procedures, which included the rancher-friendly "Standard Operating Procedure 13" that required it to permanently remove a wolf from the wild (by killing or capturing it) if it killed three livestock in one year. According to Defenders' press release, this was done without regard to "an individual wolf’s genetic importance, dependent pups or the critically low numbers of wolves in the wild." According to this AP story on the case, there are only 50 Mexican gray wolves in the wild now, which is about half as many as the Recovery Plan envisioned by this time.

Defenders et al sued to stop SOP 13 in federal district court in Arizona in May 2008. Last week's settlement, which gets rid of SOP 13, settles the suit. FWS will also reassert control over the Committee under the settlement, as you can read in the press release and in the Arizona Daily Star, here. Arizona wildlife officials responded that the environmentalists are exaggerating--that they never controlled the committee, anyway. At the same time, the Arizona officials intimated that they would be working to make sure that the interests of ranchers continued to be represented in future Committee actions.

Suit filed against FWS over San Francisco Smelt

The Center for Biological Diversity announced last Friday that it had filed suit in federal court against the Fish & Wildlife Service (FWS) seeking increased protections for two small smelt native to the Bay Area in Northern California. The group's press release can be read here.

The two species of smelt, the delta smelt and the longfin smelt, are at the bottom of a long battle over supplying water for irrigation to farmers in the region, and drinking water to area residents. As in other areas out West, much of this water is supplied through heroic diversions from once free-flowing rivers and streams that have threatened the viability of native fish species. And last week, Governor Schwarzenegger signed an $11bn water bond bill that would fund more engineering feats to get water to thirsty farmers and residents--at the expense of the longfin and delta smelt, according to CBD.

CBD and other environmentalists have been battling to force state and federal officials to take the smelt into consideration in their water use decisions using the Endangered Species Act for some time now. FWS issued a Biological Opinion last December asking that diversions be stopped to protect the delta smelt, already listed as threatened under the Act. But local water districts petitioned to have the protective actions called for by the BiOp enjoined, and the Eastern District of California granted that injunction last May.

Now that the bond bill has been passed, CBD is upping the ante. It wants the longfin smelt in the Bay-Delta area to be granted protection under the ESA as a distinct population segment (DPS)--something that FWS declined to do in this decision from April. It also wants FWS to change the delta smelt's status from threatened to endangered, which would trigger additional protections under the ESA, and possibly change the scope of action California is able to take.

You can read a pretty good article untangling the legal battle and its significance here, and access a FWS timeline of actions in the case here.

Groups Sue to Save West Virginia Flying Squirrel

Today, the Friends of Blackwater, Wilderness Society, Center for Biological Diversity, Southern Appalachian Forest Coalition, and Wild South filed suit in the U.S. District Court for the District of Columbia against the Department of Interior for taking the West Virginia Northern Flying Squirrel off the Endangered Species List. (You can check out the flying squirrel's Wikipedia entry here--it looks like an adorable Super Squirrel!!) The delisting took place in August 2008 under the Bush Administration, and was decried by environmentalists as part of the Administration's attempt to "gut" the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. (The CBD's contemporaneous press release on the action can be viewed here, a more balanced discussion on the decision from ESAblawg here, and the delisting decision itself here. The decision was justified by the fact that the population had stayed stable for twenty years, and "persisted" in certain areas of its habitat, despite its scarcity--not that it had recovered.)

Today's complaint, which can be downloaded here, alleges that the Fish and Wildlife Service (FWS) ignored the criteria of its own 1990 recovery plan for the squirrel, see 16 U.S.C. § 1533 (requiring FWS to implement Recovery Plans), in its decision to delist. The complaint further charges that FWS failed to look at all the available science on the condition of the squirrel and its habitat in making its decision, something it was also required to do in any delisting decision by 16 U.S.C. § 1533. In fact, the complaint points out, FWS asserted in its decision that it was fine to delist a species "without all criteria [of its Recovery Plan] being met." See 73 Fed. Reg. 50226 (Aug. 28, 2008). The action, the complaint alleges, is therefore a violation of both the terms of the ESA and the APA, insofar as FWS acted in an arbitrary and capricious manner in violation of APA § 706.

The group's full press release can be viewed here.

[Update: The Courthouse News has a good article on the case, here.]

Brown Pelican Off Endangered Species List

The U.S. Fish and Wildlife Service announced today that the brown pelican, pelicanus occidentalus, and the state bird of Louisiana, is no longer considered endangered for the purposes of the Endangered Species Act. It has been listed under the Endangered Species Act (ESA) and its precursor since 1970, one of the first bird species recognized as being imperiled by the pesticide DDT.

DDT, an insecticide used to kill mosquitos, is especially dangerous to animals high up the food chain. It is very persistent, and so it sticks around and accumulates in larger and larger quantities as flies are eaten by fish, are eaten by larger fish etc.. This meant that birds such as pelicans, which rely on large amounts of fish, and lived in aquatic areas targeted for mosquito spraying, were exposed to a large amount of the insecticide. Populations of birds such as the brown pelican, bald eagle, and peregrine falcon plummeted, as DDT caused the shells of their eggs to become very thin, limiting their ability to successfully reproduce.

Use of the pesticide was banned in the U.S. in 1972, and worldwide in 2004 under the Stockholm Convention on Persistent Organic Pollutants. FWS credits the U.S. ban, along with extensive efforts by Louisiana and Florida to restore coastal habitat, for the recovery of the brown pelican. (The brown pelican, and a nefarious plot to sacrifice its habitat to drill oil, was the inspiration for John Grisham's The Pelican Brief.)

The FWS press release can be viewed here, and their fact sheet on the brown pelican here. A story on the announcement in the New Orleans Times Picayune (which includes some lovely pictures) can be read here. In a joint press release, Environmental Defense, National Wildlife Federation, and Audubon are all cheering the announcement, but call for continued commitment to coastal habitat and wetlands restoration. (No word yet from ESAblawg.)

A Little History Lesson

Elizabeth Garrett at USC Law Revisits TVA v. Hill.

When discussing yesterday's Ninth Circuit decision in National Parks Conservation Association v. BMA, I noted that, although the project at issue (a landfill adjacent to Joshua Tree National Park) could technically go forward after BLM goes back and complies with the panel's rulings on its NEPA evaluation, approval delayed is often approval denied.

The real nuclear bomb in environmentalists' arsenal is, of course, the Endangered Species Act, which absolutely forbids action that would constitute a "take" of listed species. (A substantive road block, rather than the procedural road block NEPA throws up.) The mother of all ESA cases, paving the way for decades of ESA-based attempts to litigate controversial projects to a halt is TVA v. Hill, 437 U.S. 153 (1978), in which the Tellico Dam was almost stopped by the Endangered Species Act for the sake of the infamous endangered snail darter.

Now Elizabeth Garrett, a scholar of legislative process at USC Law (and a former University of Chicago Law professor) is putting out a book on the subsequent legislative history of the controversy, in which Congress used appropriations legislation to overrule the Court. A preview of Professor Garrett's book, The Story of TVA v. Hill, Congress has the Last Word, can be read here, and a post on the book at Legal History Blog, here.

The book should be instructive, in light of the fact that Congress's tactic of using lines inserted into appropriations bills is alive and well. Far more recently, for example, Senator Domenici of New Mexico used an appropriations bill to override a ruling by the U.S. District Court for the District of New Mexico ordering the Army Corps of Engineers to release water set aside for farmers in the Rio Grande watershed back into the river to protect the endangered silvery minnow. You can read an article on the controversy, circa 2003, here.

FWS Makes Annual Announcement of Candidate Species for ESA

Apparently, though, it hasn't succeeded in actually protecting many of those in the past ten months.

On Friday, the U.S. Fish and Wildlife Service released its Candidate Notice of Review (CNR), an annual list of plants and animals that are considered candidates by the agency for Endangered Species Act (ESA) protection. The press release can be read here, and the list here.

According to FWS, "[c]andidate species [included on the list] are plants and animals for which the Service has enough information on their status and threats to propose them as threatened or endangered, but [for which] developing a proposed listing rule is precluded by higher priority listing actions." Apparently, four species have been removed from the list, five have been added, and eight have had their priority changed since last year.

The author of ESABlawg, a DoJ alumnus, explains the significance of inclusion on the list as follows:

The candidate list is the one significant place where the U.S. Fish and Wildlife Service takes into account priorities when implementing the Endangered Species Act. Under this three-part priority ranking system,

(1) threats to species are considered in magnitude as either “high” or “moderate to low”;
(2) immediacy of threats are categorized as either “imminent” or “nonimminent”; and
(3) three categories are created for taxonomic status: with
(a) species that are the sole members of a genus;
(b) full species (in a genus that has more than one species); and
(c) subspecies, distinct population segments of vertebrate species, and species for which listing is appropriate in a significant portion of their range rather than their entire range.

The result of the ranking system is that FWS assigns each candidate a listing priority number of 1 to 12.

This system has two important limitations. First, as FWS notes, it still results in lumping all the species together on the candidate list. . . . Second, it does not attempt to assign any value to one species over another based on biological characteristics or other traits. In other words, it does not matter whether a species is a plant that is in trial testing as a potential cure for cancer, nor a keystone species representative of an entire ecosystem that also creates habitat for dozens of other species. Either way, the ranking system assigns a 1 to 12 based on the individual status of the species, and all species struggle equally on the candidate list until FWS finds the money (or a court orders FWS) to list the species.

The Center for Biological Diversity--possibly the primary organization pressing for these court orders--notes that "The majority of candidates [on the CNR] are rated as either priority 2 or 3, meaning they are in immediate danger of extinction."

In a press release about the CNR, which also detailed full ESA listing activity, the Center for Biological Diversity noted that the Interior Department has only moved one species, a rare Hawaiian plant, under the umbrella of ESA protection since President Obama took office. CBD is extremely critical of this record, saying:

This review shows that the Obama administration has not substantially improved the dismal record of the Bush administration in providing protection to the nation’s critically endangered wildlife. . . . Protection of only one species in 10 months reflects a failure to enact substantial reforms in the U.S. Fish and Wildlife Service.

(FWS is moving toward listing the flat-tailed horned lizard in 2010, but this was just mandated by the federal district court in Arizona implementing a Ninth Circuit decision won by CBD in July.)

Maybe I'm naive, but I'm inclined to cut the Obama Administration a little slack, since turning around a bureaucratic ship can be quite a slow process. But it would be interesting to know what the process story is: According to the full CBD press release, the Bush Administration averaged 7-8 listings a year, and the Clinton Administration 65.

Roadless Rule Being Litigated . . . Again

Briefs were filed in the U.S. Court of Appeals for the Tenth Circuit yesterday in favor of the Roadless Area Conservation Rule (Roadless Rule), which bans new roads in national forests. Again.

The rule, which was issued in 2001 at the end of the Clinton Administration, has been the subject of nearly endless litigation ever since. In separate proceedings in the Ninth Circuit, environmentalists sued to overturn a Bush Administration reversal of the rule, via the so-called State Petitions Rule, which sought to give states authority over whether National Forests in their own states should remain roadless. Last August, in California v. USDA, the Ninth Circuit ruled that (1) it was unreasonable for the Forest Service to use a categorical exemption to exclude the State Petitions Rule from NEPA review, (2) it was arbitrary and capricious for it to find no significant impact under the ESA, and (3) the district court had been correct to reinstate the Roadless Rule. (As that case was argued prior to the end of the Bush Administration, DOJ supported the State Petitions Rule and opposed the reinstatement of the Roadless Rule.)

Meanwhile, the state of Wyoming challenged the Roadless Rule in federal district court in Wyoming--and won. In a 2008 decision, the U.S. District Court for the District of Wyoming ruled (for the second time) that the Roadless Rule violated NEPA as well as the Wilderness Act. This time, the Obama DOJ joined environmentalists and is arguing that the district court's decision should be overturned.

A brief AP article on the filing can be read here. And a colorful High Country News article on the judge in Wyoming who keeps overturning the Roadless Rule, as well as the endless litigation it has been subjected to, can be read here.

USFW Proposes Listing Red-Crested Cockatoo

Yesterday, according to this press release, the US Fish and Wildlife Service issued a proposed rule listing the Indonesian Red-Crested Cockatoo as threatened under the Endangered Species Act after protracted foot dragging.

Another Federalism Battle Brewing

On Friday, Delaware filed suit in the U.S. District Court for the District of Delaware to stop Army Corps (re)dredging the Delaware River for a shipping channel, as the Philadelphia Inquirer reports here, and the Delaware News Journal, here. The Army Corps says this is routine maintenance of an interstate shipping channel over which it has jurisdiction under the Commerce Clause, whereas Delaware is seeking to to protect its environment--including listed species under the federal ESA.

Delaware rejected the Army Corps' application under the state Subaqueous Lands and Wetlands Acts for the project in July, but the Army Corps decided to go ahead anyway on October 25, finding that the federal government's right to maintain navigability on interstate waterways trumps Delaware's rights in this case. Delaware is seeking an injunction to stop the Corps, saying that the "decision by the Army Corps of Engineers to begin deepening Delaware waters is a direct challenge to the territorial authority of the State of Delaware and violates federal and state law.”

The Delaware Attorney General's press release--in which he notes that New Jersey is also on board in the fight--can be read here.

[Update: New Jersey, at the behest of Governor Corzine, has joined Delaware in its actions, filing a suit in U.S. District Court in New Jersey. The Philadelphia Inquirer reports on this development, here.]

Suit Filed to Jumpstart ESA Listing for American Pika

Earthjustice attorneys again trying to use (California) ESA to regulate global warming

Earthjustice and the Center for Biological Diversity announced yesterday that they have filed a lawsuit in California state court against the California Fish and Game Commission, for its refusal to list the American Pika (which I have a soft spot for, because it is a lagomorph) under the California Endangered Species Act. The groups' theory is that the pika is threatened by the effects of global warming in California. The Commission rejected their petition once, and they succeeded in getting the decision remanded for reconsideration. This appeal is the groups' second.

[Ed's note: The animal pictured here is a lagomorph, but not a pika.]

Faster than Melting Ice ...

Apparently catching wind that the Department of Interior was about to announce a proposed habitat designation for polar bears in the Alaskan Arctic, (see prior blog post here), Alaska rushed into federal court earlier this week and supplemented its earlier suit to overturn the original listing that prompted the designation. Alaska filed papers (to supplement a suit originally brought by former Governor Palin in August 2008) in federal district court in Washington state on Tuesday, and announced that it had done so during a gubernatorial press conference yesterday. At the press conference Governor Parnell warned that habitat designation would in essence shut down resource extraction along Alaska's northern coast, and vowed not to let that happen.