Biodiversity Committee Report

I. Administrative Developments

A. Issuance of Proposed Rule to Revise Endangered Species Act Section 10 Incidental Take and Enhancement of Survival Permit Regulations

The United States Fish and Wildlife Service (FWS) proposed revisions to the section 10 incidental take permit and enhancement of survival permit regulations to clarify that it has authority to issue a permit for non-listed species without also including a listed species on the permit, and to include the 1999 Five Point policy on habitat conservation plans (HCPs) in the regulations. Based on clarification of its authority to issue incidental take permits for non-listed species, FWS is proposing to eliminate candidate conservation agreement permits by rescinding 50 C.F.R. §§ 17.22(d) and 17.32(d). Candidate and other non-listed species would subsequently be covered by an incidental take permit or a Safe Harbor Agreement permit. The term Safe Harbor Agreement would also be changed to “Conservation Benefit Agreement.”

B. Issuance of Final Rule to Revise Endangered Species Act Section 10 Regulations Governing the Reintroduction of Experimental Populations of Listed Species

FWS issued a final rule revising the section 10(j) regulations concerning the reintroduction of experimental populations of listed species to remove language indicating that species reintroductions should generally be limited to areas that are within the historical range of the species. FWS stated that it “may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the species' habitat has undergone, is undergoing, or is anticipated to undergo irreversible decline and is no longer capable of supporting the species due to threats such as climate change or invasive species.”

II. Judicial Developments

A. Section 4: Listings, Critical Habitat Designation, and Recovery Plans

1. Listings and Delistings

In Center for Biological Diversity v. United States Fish & Wildlife Service, environmental plaintiff filed an action against FWS challenging denial of plaintiff’s second petition to list the Tucson shovel-nosed snake under the ESA. Plaintiff argued that defendants arbitrarily rejected substantial scientific or commercial information in reviewing the listing petition. The United States District Court for Arizona stated that whether a petition is granted or denied turns on

[W]hether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Substantial scientific or commercial information refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.

The court denied plaintiff’s motion, finding the record presented no new or substantial information requiring defendants to reconsider its genetics-based classification of the snake and resultant range. The court found that defendant considered the relevant factors and articulated a rational connection between the facts found and the ultimate finding. Plaintiff’s appeal of the court’s judgment to the Ninth Circuit is pending.

In Center for Biological Diversity v. United States Fish & Wildlife Service, environmental plaintiffs filed a complaint against FWS seeking an order declaring that defendants’ determination that the eastern hellbender should not be listed as either endangered or threatened is unlawful and should be vacated. The United States District Court for Southern District of New York denied defendant’s motion and granted plaintiffs’ motion, vacating defendant’s determination and remanding the matter to the agency for further proceedings consistent with the court’s opinion. Plaintiffs successfully argued that defendant’s finding failed to rely on the best scientific and commercial data available, which rendered the decision arbitrary and capricious. For example, the court determined that it was arbitrary and capricious for defendants to have considered uncertain or future conservation efforts as part of its reasonable best plausible scenario in reaching a “not-warranted” determination. Defendant’s were only permitted to consider future actions that are sufficiently certain to affect a species’ status. In contrast, prospective future conservation efforts have uncertain results, which could not serve as a valid basis for consideration in a listing determination. Defendant’s appeal of the court’s opinion and order to the Second Circuit Court of Appeals is pending.

In Center for Biological Diversity v. United States Fish & Wildlife Service, environmental plaintiff challenged FWS’s reclassification of the American Burying Beetle from “endangered” to “threatened.” According to the U.S. District Court for the District of Columbia, while the parties essentially agreed on the future challenges the beetle will face due to the effects of climate change between 2040 and 2069, the parties disagreed about how to categorize that risk to the beetle under the ESA. In granting summary judgment in favor of defendant, the court found that defendant relied on a reasonable interpretation of the statute when reclassifying the beetle as threatened. Plaintiff claimed that the existential threat of climate change has the potential to cause the extinction of the beetle in the future. The court found that FWS need not account for the seriousness of future threats faced by a species, only current threats, as a species is only endangered if it “is in danger of extinction.” By contrast, a species is threatened if it is likely to become an endangered species within the foreseeable future. Thus, there is a temporal distinction between endangered and threatened species. As noted by the court, “…it is permissible to conclude that a species is not endangered where extinction is unlikely to happen for at least 19 years.” In proposing to down-list the beetle as threatened, FWS explained that the “beetle's viability is higher than was known at the time of listing,” meaning that it did “not currently meet the definition of endangered under the [ESA] because it is not presently in danger of extinction.” Because the beetle’s risk of extinction had ameliorated since its original listing, the court held that FWS properly reclassified the beetle as threatened. Plaintiff’s appeal of the court’s opinion to the D.C. Circuit is pending.

2. Critical Habitat Designations

In Center for Biological Diversity v. United States Fish & Wildlife Service, environmental plaintiff challenged a biological opinion (BiOp) issued by FWS for a United States Forest Service (USFS) approval of a proposed mining project because of alleged effects to jaguar critical habitat. The project proponent intervened in the action and filed a crossclaim against defendants, arguing that the critical habitat designation for jaguar violated the Administrative Procedures Act (APA) and Endangered Species Act (ESA). The court found that the designation of unit 3 as occupied critical habitat was improper because FWS relied on materials outside the relevant time frame (occupancy at the time of listing). Photographs of jaguar sightings decades after the time of the listing decision should not have been considered by FWS with respect to the question of whether unit 3 had been occupied by jaguar at the time of the listing decision, as required by the ESA. The court also found that FWS’s designations of unit 3 and unit 4b as unoccupied critical habitat was arbitrary and capricious because FWS did not establish, as required by the ESA and regulations, that the unoccupied areas were essential to the conservation of the species. The court determined that “‘essential’ in the ESA's definition of ‘critical habitat’ is an area that is indispensable or necessary to conservation, not merely beneficial to such efforts.” In making the designation, FWS conceded there is nothing establishing that the jaguar would be unable to recover if unit 3 was not designated as critical habitat. Accordingly, FWS was unable to explain how unit 3 is essential for the conservation of the jaguar. Likewise, unit 4b was found by the court to not be essential to the conservation of the jaguar because even though it connects the mountains in the United States to Mexico (where there is a larger population of jaguars), there was no evidence that jaguars had used the specific travel corridor. The Ninth Circuit affirmed the district court’s vacatur of the designation of unit 3 as occupied critical habitat and reversed its grant of summary judgment to FWS regarding the designation of unit 3 and unit 4b as unoccupied critical habitat, remanding the critical habitat determination to FWS.

In Natural Resources Defense Council v. United States Fish and Wildlife Service, environmental plaintiffs challenged the decision by FWS not to designate critical habitat for the rusty patched bumble bee based on a determination that the designation would not be prudent. Plaintiffs argued that to use the narrow “not prudent” exception to the requirement to designate critical habitat, FWS needed to demonstrate that the designation would not be beneficial to the species and had failed to do that. The court granted plaintiffs’ motion for summary judgment, holding and that the record did not demonstrate that critical habitat would not be beneficial in any way to the species and FWS did not set forth a reasoned basis for using the not prudent exception.

B. Section 7: Federal Agency Conservation Duty, Jeopardy Standard Consultations, and Incidental Take Statements

In Center for Biological Diversity v. Haaland, environmental plaintiffs challenged a BiOp, alleging that the USFS and the U.S. Army Corps of Engineers (Corps) were in ongoing violation of the ESA and section 7 regulations for failing to reinitiate consultation after approving a land exchange and a § 404 permit for a copper mine project. Plaintiffs alleged that the BiOp was inadequate and that further consultation was required due to the revelation of “new information,” specifically: (1) disease devastated the population of northern long-eared bats in the area; (2) the extent and magnitude of other mining activity in the area had significantly increased; (3) the potential adverse impacts of copper mining in the region are better understood; and (4) mine owners had revised their wetland-mitigation plan. In its BiOp, FWS found that, although mining operations would likely have some impact on the number of bats, those operations were “not likely to jeopardize the continued existence.” The court denied the defendant’s motion to dismiss for the claim related to the bat population information, because, while the previously existing population was large enough to absorb the impact of mining operations, the new information could change that outcome, despite the population decline being unrelated to any mining operations. The court granted the motion to dismiss the remaining claims, finding that plaintiffs failed to present sufficient evidence to support the “new information” or failed to plausibly plead that the new information changed the project “in a manner that causes an effect to the listed species or critical habitat that was not considered.”

In Friends of Del Norte v. California Department of Transportation, environmental plaintiffs challenged a biological assessment (BA) prepared by the California Department of Transportation (Caltrans) on behalf of the Federal Highway Administration for proposed lane modifications to improve the passage of larger-sized trucks. Defendant argued that neither the APA nor the ESA authorized plaintiffs to challenge the BA, because it is neither an “agency action made reviewable by statute” nor a “final agency action for which there is no other adequate remedy in a court.” Plaintiffs argued that the NMFS’s letter of concurrence agreeing with the determinations in the BA constituted final agency action. In the alternative, plaintiffs argued that the ESA authorizes them to challenge the BA because Caltrans and NMFS did not engage in formal consultation. The court found that an agency's decision not to engage in consultation to the extent required by law is reviewable, at least when the agency has concluded its decision-making processes with respect to how and whether to consult. The court concluded that the BA adequately analyzed potential impacts to listed species, and therefore, it was not arbitrary and capricious for Caltrans and NMFS to conclude that formal consultation was unnecessary.

In White v. United States Army Corps of Engineers, plaintiff filed suit seeking a declaration that the Corps violated the section 9 prohibition against unauthorized taking of protected salmon species through its flood control operations at a dam. Plaintiff requested that the court enjoin the Corps from continuing to cause unauthorized take-through water releases and requiring the Corps to reinitiate formal Section 7 consultation with NMFS on the effects of operations at the dam. The Corps moved to dismiss the suit arguing that plaintiff’s claims were moot because the Corps had already reinitiated the consultation process with NMFS, or in the alternative, to stay the matter pending the processes’ completion. Defendants argued that no effective relief remains to remedy plaintiff's section 7 claim because defendants had already reinitiated formal consultation. Moreover, because an Incidental Take Statement would exempt the Corps from the ESA's take prohibition going forward, defendants argued plaintiff’s section 9 claim would also be moot once the reinitiated section 7 consultation is complete. The court disagreed and found that an injunction preserving the status quo could still provide plaintiff meaningful relief pending completion of the reinitiated consultation. The court declined to stay the litigation pending the completion of the consultation because a stay could harm plaintiff by allowing defendants “to engage in unlawful behavior with no concrete end date,” which outweighed the potential hardship to the Corps of continuing litigation.

In Center for Biological Diversity v. United States Maritime Administration, environmental plaintiffs sued the U.S. Department of Transportation Maritime Administration (MARAD), for failing to conduct a programmatic section 7 consultation with FWS and NMFS (Services) on the U.S. Marine Highway Program (the “Program”) in its entirety and failing to consult with the Services on its issuance of a grant to fund dredging in the James River. Regarding the programmatic challenge, the court held that the Program is not the kind of program that constitutes a discrete agency action requiring consultation. As to plaintiffs’ claim that issuance of the grant for the James River required section 7 consultation, the court found that MARAD’s contention that it was under no duty to consult because it had determined that the issuance of the grant would have no effect on the listed species ran counter to the evidence before the agency. The court therefore held that that agency’s decision not to conduct section 7 consultation on the issuance of the grant was arbitrary and capricious. The court granted in part and denied in part both parties’ motions for summary judgment. Both parties have filed notices of appeal.

In Nantucket Residents Against Turbines v. United States Bureau of Ocean Energy Management, plaintiffs alleged that the Bureau of Ocean Energy Management (BOEM) decisions approving an offshore wind energy project off the coast of Martha's Vineyard and Nantucket were based on inadequate environmental assessments in violation of the National Environmental Policy Act (NEPA), the ESA, and the APA. Plaintiffs claimed that the 2021 BiOp issued by NMFS was flawed because it failed to use the “best scientific and commercial data available” as required under the ESA, and that, as a result, NMFS and BOEM acted arbitrarily and capriciously in violation of the ESA. The court reasoned that neither the ESA nor its implementing regulations provide direction as to what constitutes the “best scientific and commercial data available,” and that determining which studies and data are the best available is “itself a scientific determination deserving deference.’ In light of the record and the deference accorded to NMFS in making such determination, the court found plaintiffs’ arguments unpersuasive, and held that plaintiffs had not shown that NMFS and BOEM violated the ESA by failing to rely on the “best commercial data available” during the consultation process.

In Maine Lobstermen’s Association v. National Marine Fisheries Service, the Maine Lobstermen’s Association appealed the district court’s decision on its challenge to a BiOp in which NMFS relied on legislative history indicating that it should err on the side of the species during section 7 consultation. The D.C. Circuit Court of Appeals held that NMFS acted contrary to law and was arbitrary and capricious in issuing the BiOp. The court held that the ESA did not authorize a substantive presumption in favor of a species in determining under ESA section 7(a)(2) whether a federally licensed fishery was not likely to jeopardize the survival of a protected species, but instead required applying the ordinary meaning of “likely” to mean “more likely than not,” and the agency gave no reasoned explanation for changing its practice. The court held that NMFS’s reliance on “a half-sentence in the legislative history” was “egregiously wrong,” reasoning that legislative history cannot bind the executive branch and compel a presumption in favor of the species that is not required by the ESA. The court directed the district court to vacate the BiOp as it applies to the lobster and Jonah crab fisheries.

In Los Padres Forestwatch v. United States Forest Service, environmental plaintiffs alleged that the FWS violated the ESA because it could not have reasonably concluded that the project was not likely to adversely affect the California condor or its critical habitat when it issued a BiOp for a USFS project authorizing the logging of an unspecified number of large trees on 755 acres within the Los Padres National Forest. The U.S. District Court for Central California concluded that FWS properly determined that the project’s effect on the California condor and its critical habitat was virtually nonexistent based on the information available and that the project would remove few, if any, large trees. The court further concluded that FWS’s determination that the project was “not likely to adversely affect” the California condor and its critical habitat was amply supported by the bird tracking data contained in the administrative record. The court stated that FWS reasonably concluded that any effects to California condor and its critical habitat as a result of the project activities will be insignificant and beneficial to the species, and that FWS’s conclusions are entitled to substantial judicial deference.

In Center for Biological Diversity v. United States Environmental Protection Agency, plaintiffs challenged the Environmental Protection Agency’s (EPA) failure to consult with the Services before approving Washington State’s limits on aquatic cyanide in 1993, 1997, and 2007. Defendant argued that plaintiffs’ 1993 and 1997 claims were time-barred by a six-year statute of limitations, and that the 2007 claim failed to assert any ground for relief. In 2007, EPA initiated consultation with the Services. In 2010, the Services released draft biological opinions finding approval of the cyanide criteria would likely jeopardize the continued existence of numerous listed species. In “2016, EPA terminated continued consultations without a completed section 7 consultation”. The court found that the present case met the “continuing violation doctrine” and that the obligation to consult under section 7 did not lapse; there is a current and ongoing duty to consult such that plaintiffs’ claim was not time barred. Finally, the court held that defendant’s claim that re-initiation is discretionary was not supported by the text of the ESA and denied defendant’s motion to dismiss as to all claims.

In Alliance for the Wild Rockies v. Marten, plaintiffs challenged USFS and FWS’s failure to reinitiate section 7 consultation for the BiOp issued on the Helena-Lewis and Clark National Forest Plan. Defendants admitted that unauthorized motor access occurs in the Forest, and recognized in other reports, that vehicular traffic posed significant threats to grizzly bear survival. Plaintiffs claimed that defendants did not properly consider unauthorized motor use and the ineffectiveness of USFS efforts to curtail it, or its potential or cumulative effects on grizzly bears in the BiOp. Plaintiffs claimed that USFS failure to reinitiate ESA consultation upon learning that their assumption that travel management regulations would be effective was proven false, which amounted to a failed conservation promise. The court agreed with plaintiffs that the BiOp did not explain a decision that ran counter to evidence, and issuance of the BiOp was therefore arbitrary and capricious.

In Western Watersheds Project v. McKay,environmental plaintiff challenged a BiOp issued by FWS to USFS for grazing in Oregon spotted frog critical habitat. The Ninth Circuit held that FWS failed to address information indicating that climate change would make low water conditions frequent or more severe and consider how that would impact the Oregon spotted frog. Although the BiOp considered how drought conditions might harm the frogs, the BiOp failed to consider how climate change would impact frogs in non-drought years or consider climate change as a cumulative effect or baseline condition. Although FWS claimed the mitigation strategies in the BiOp would address impacts to frog critical habitat during low water conditions, the court found that the BiOp contained no information that the mitigation strategies were developed with climate change in mind. Further, the mitigation measures were not tied to a clear, definite commitment of resources; were not subject to deadlines or enforceable obligations; and did not address threats to the species to satisfy jeopardy or adverse modification standards. The court held that it was, therefore, arbitrary and capricious for FWS to rely on the effectiveness of these mitigation measures to conclude there would be no jeopardy. The court vacated the BiOp and remanded to FWS for further consideration. In Center for Biological Diversity v. Haaland, environmental plaintiffs challenged a BiOp issued by FWS for the use of water by the U.S. Army from the San Pedro River Basin in Arizona. The Army pumps water from the Basin for use at Fort Huachuca in Arizona. As the Basin is home to several plant and animal species protected under the ESA, the Army proposed a conservation easement that would restrict agricultural development to save water and protect species that depend on the Basin. Environmental plaintiffs challenged the BiOp as lacking sufficient support for its conclusion that the easement would yield water savings. The Ninth Circuit agreed with plaintiffs, holding that FWS failed to show that the benefit from the conservation easement would be “reasonably certain” and that FWS relied mostly on speculation to claim water savings. Because the government could not claim water savings from the conservation easement, its no-jeopardy determination on protected wildlife was arbitrary and capricious. The court remanded the BiOp to FWS.

In Migrant Clinicians Network v. United States Environmental Protection Agency, environmental plaintiffs challenged the EPA’s amended pesticide registrations of streptomycin sulfate, an antibiotic used to combat citrus diseases. Plaintiffs claimed EPA failed to comply with the ESA as EPA did not evaluate the risk that streptomycin would pose to pollinators. EPA admitted that it did not comply with the ESA in amending its streptomycin registration and stated that it “has met its ESA obligations for less than 5%” of its thousands of pesticide registrations approved in the past decades. Given the backlog, EPA estimated that it could not complete Section 7 consultation for streptomycin before fall 2026. The Ninth Circuit vacated and remanded the amended registration to EPA to make a Section 7 effects determination, holding that “the EPA may not avoid compliance with the ESA merely because of its own internal regulatory priorities.”

In Sovereign Iñupiat for a Living Arctic v. Management, environmental plaintiffs alleged several violations of the ESA in the Services’ BiOp for an oil drilling operation on the North Slope of Alaska. Plaintiffs alleged that the Services erred in finding in the BiOp that there would be no incidental take of polar bears, that the consultation failed to evaluate carbon emissions, and that the Bureau of Land Management (BLM) unlawfully relied on a flawed BiOp. The court held that FWS's basis for finding that nondenning polar bears would not be harassed by the project was not arbitrary and capricious, such that the agency's misinterpretation of its definition of harass in the regulations was harmless error. With respect to carbon emissions, the court found that BLM and the Services considered relevant factors and articulated a rational connection between the facts found and their conclusion that the project’s greenhouse gas emissions did not constitute an effect of the action under the ESA. Because FWS's BiOp was not arbitrary or capricious, the court also found that BLM's reliance on the BiOp did not violate the ESA. The court further held that plaintiffs had not shown that FWS disregarded available scientific evidence better than the evidence it relied on, and FWS's use of the available scientific and commercial data was not arbitrary and capricious.

C. Section 9: Prohibited Acts

In Flathead-Lolo-Bitterroot Citizen Task Force v. State, environmental plaintiffs filed suit against the State of Montana to enjoin the implementation of regulations that authorized wolf trapping in areas of the state occupied by grizzly bear, alleging that wolf trapping was reasonably certain to result in the prohibited take of grizzly bear under section 9. The court held that state-authorized recreational trapping violates the ESA when it risks taking a threatened or endangered species even when trappers comply with all laws and regulations. In enjoining the wolf trapping regulations, the court found persuasive plaintiffs’ evidence that there is an increasing prevalence of grizzly bears with “trap-like” injuries in Montana. The court held that unauthorized taking of grizzly bear was reasonably certain to occur even if trappers complied with the regulations and that such taking would be “directly attributable to defendants’ authorization of the State’s trapping and snaring rule and regulations.”