Biodiversity Committee Report

I. Administrative Developments

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

The United States Fish and Wildlife Service (FWS) issued a final rule revising 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 codify the 1999 Five Point policy on Habitat Conservation Plans (HCPs). Based on clarification of its authority to issue incidental take permits for non-listed species, FWS eliminated candidate conservation agreement permits by rescinding 50 C.F.R. §§ 17.22(d) and 17.32(d). Candidates and other non-listed species are now covered by an Incidental Take Permit or a Safe Harbor Agreement permit. The term Safe Harbor Agreement was also changed to “Conservation Benefit Agreement.”

B. Issuance of Final Rule to Reinstate Blanket Section 4(d) Rule

FWS issued a final rule to reinstate the “blanket rule” prohibiting take of newly listed threatened species under section 4(d) of the Endangered Species Act (ESA), “with the continued option to promulgate species-specific section 4(d) rules.” The final rule also extended to federally recognized Tribes “the exceptions to prohibitions for threatened species that the regulations” provide to employees or agents of FWS and other agencies to aid, salvage, or dispose of threatened species.

C. Issuance of Final Rule to Revise Section 4 Listing Regulations

FWS and the National Marine Fisheries Service (NMFS) jointly issued a final rule to revise portions of the ESA regulations addressing listing of species and designation of critical habitat under Section 4. The five main revisions in the final rule include: (1) reinstated prior language affirming that listing determinations are made without reference to possible economic impacts of a listing; (2) revised the interpretation of “foreseeable future” for assessing whether a species meets the definition of threatened; (3) clarified the standards applicable to delisting species, (4) revised the circumstances for when designation of critical habitat may be not prudent; and (5) revised the criteria for identifying unoccupied critical habitat.

II. Judicial Developments

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

1. Listings and Delistings

In Basinkeeper v. Bernhardt, environmental plaintiffs filed an action against FWS challenging the decision to delist the Louisiana black bear. The United States District Court for the Middle District of Louisiana denied plaintiffs’ motion for summary judgment and entered judgment in favor of FWS, finding that defendants had successfully argued that all three recovery criteria for the bear’s delisting had been met, as set out in the original 1995 recovery plan for the species, including viable subpopulations, immigration and emigration corridors, and extensive habitat gains. FWS analyzed potential threats to the species under the factors set out in Section 4 of the ESA and also performed a “significant portion of its range” analysis to determine whether there were significant portions of the range where the bear was in danger of becoming extinct or likely to become so in the foreseeable future. First, the court entertained plaintiffs’ argument that genetic hybridization between subpopulations of the bears represents a threat. Here, the court gave the agency’s scientific findings an “extreme degree of deference” where FWS had considered the impact of hybridization and believed that encouraging gene flow from nearby populations was one of the best strategies for long term preservation of the bear. Finding that FWS rationally analyzed the issues criticized by plaintiffs, the court stated, “[s]imply put, Plaintiffs' disagreement with the Service's conclusions on these points does not render the Service's conclusion arbitrary and capricious.”

In New Mexico Cattle Growers' Association v. United States Fish and Wildlife Service, plaintiff petitioned delisting of the southwestern willow flycatcher based on new scientific information released in 2015. Plaintiff argued that while the ESA protects subspecies, new genetic data indicated the southwestern willow flycatcher is not a valid subspecies and because the broader willow flycatcher species is not endangered, the southwestern willow flycatchers does not warrant protection under the ESA. FWS performed a 12-month review and reaffirmed that the southwestern willow flycatcher is a valid subspecies. Plaintiff challenged this finding, contending that FWS’s denial of the delisting petition was arbitrary and capricious because FWS did not define the term “subspecies.” The district court denied plaintiff’s motion for summary judgment, stating that nothing in the ESA or Administrative Procedure Act (APA) requires FWS to pick a “single bright-line definition to apply woodenly across its listing decisions.” The court upheld the FWS determination, noting that FWS relied “on standard taxonomic distinctions and the biological expertise of the Department and the scientific community” and surveyed four specific methods for classifying a bird subspecies. Appeal is pending before the D.C. Circuit.

In Alaska v. National Marine Fisheries Service, plaintiffs challenged NMFS’s decision not to delist the Arctic ringed seal as an endangered species following plaintiffs’ 2019 delisting petition. NMFS found that the listing petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted. Plaintiffs alleged that NMFS applied the wrong legal standard during its analysis and failed to credit the “new information” provided by plaintiffs. Plaintiffs argued that NMFS’s decision not to delist the Arctic ringed seal is directly in conflict with FWS’s recent decision not to list the Pacific walrus. However, the court found that NMFS did evaluate the Pacific walrus decision and determined that there were key distinguishing facts between Pacific walruses and Arctic ringed seals, notably that Arctic ringed seals require access to ice with suitable depths of snow and Pacific walruses do not. Applying a deferential standard, the court found that NMFS provided a reasonable explanation concerning its decision and denied plaintiffs’ challenge. Appeal is pending before the Ninth Circuit.

In Friends of Animals v. Williams, plaintiff challenged FWS’s decision to list distinct population segments of the scarlet macaw as threatened instead of endangered and to allow limited import, export, and interstate trade of the bird without an ESA permit. In making its listing determination, FWS determined that the size of the population was currently stable (and likely increasing), so it was reasonable to conclude that the species was not currently in danger of extinction and did not meet the definition of an “endangered species” under the ESA. Plaintiff asserted that the listing decision was arbitrary and capricious because FWS did not adequately explain the basis for its determination and failed to rely on the best scientific data available. Undertaking a “highly deferential” review, the court found that the FWS did provide a sufficiently reasoned explanation of its assessment of the threats and the population stability that led it to conclude that the species was not at risk of imminent extinction. Plaintiff also argued, and the court agreed, that the FWS procedurally failed to abide by APA notice-and-comment requirements relating to its “significant portion of its range” analysis. Thus, the court ordered vacatur and remand of the FWS’s range analysis on that basis alone. Plaintiff unsuccessfully argued that section 4(d) should not allow for the threatened species to be imported, exported, and conveyed in interstate commerce without an ESA permit. The court determined that the FWS’s decision was made in part on the fact that cross-border trade of the bird is already significantly restricted by existing regulatory regimes. Also, the court noted that Congress gave the FWS broad discretion “to determine what measures are necessary and advisable to provide for the conservation of the threatened species.” Appeal is pending before the D.C. Circuit.

In Center for Biological Diversity v. Haaland, environmental plaintiffs challenged the FWS’s revised 12-month finding on a petition to list the Upper Missouri River DPS of Arctic grayling (a salmonid fish) under the ESA. In the 2020 revised finding, FWS concluded that listing of the Arctic grayling was not warranted at that time. In its challenge, plaintiffs alleged that FWS failed to analyze the adequacy of existing regulatory mechanisms and failed to use the best available scientific evidence, rendering FWS’s finding arbitrary and capricious. While the court determined that FWS adequately assessed the best available scientific evidence, such as that relating to climate change impacts and population size, the court found that FWS failed to adequately consider the upcoming termination of a Candidate Conservation Agreement. Specifically, the court highlighted that the FWS relied on the benefits of the conservation agreement in reaching its “not warranted” finding, yet the FWS failed to consider the impact of the conservation agreement expiring in 2026. Thus, the court found that it was arbitrary and capricious for FWS to ignore this issue and vacated the finding and remanded to the agency for further analysis. Appeal is pending before the Ninth Circuit.

2. Critical Habitat

In Alaska v. National Marine Fisheries Service, the State of Alaska challenged NMFS’s final rules designating more than 160 million acres of waters around Alaska as critical habitat for the Beringia distinct population segment (DPS) of the bearded seal and for the Artic ringed seal. The State argued that the unprecedented size of designations, which included “virtually all of the geographic area occupied by each seal within the jurisdiction of the United States,” violated the ESA requirements limiting critical habitat designations. The court held that the critical habitat designations were arbitrary and capricious because NMFS failed to explain why the entirety of each designated area is necessary to the seals’ survival and recovery, or why a smaller area would be inadequate for their conservation. Given that much of the range of the two species occurs outside of United States jurisdiction, the court also found that NMFS’s failure to consider foreign nation efforts when designating critical habitat was arbitrary and capricious “because it ‘entirely fail[ed] to consider an important aspect of the problem.’” The court vacated both critical habitat designations and remanded to NMFS for further proceedings. Appeal is pending before the Ninth Circuit.

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

In Center for Biological Diversity v. Regan, plaintiff challenged the programmatic Biological Opinion (BiOp) issued by FWS to EPA for the approval of the State of Florida’s application to assume Clean Water Act § 404 permitting authority. Plaintiff alleged that FWS’s issuance of the BiOp and Incidental Take Statement (ITS) violated the ESA by finding no jeopardy and conferring blanket incidental take authorization for all future Florida § 404 permittees. The court granted plaintiff’s motion for partial summary judgment, finding the BiOp and ITS failed to satisfy ESA requirements and the non-statutory technical assistance process established in place of stepped-down ESA consultation was not a lawful substitute. The court found that the BiOp failed to undertake any species-specific analysis, failed to consider the cumulative effects of EPA’s action, and the technical assistance process had no legally binding effect as it was not subject to notice and comment rulemaking. Further, the ITS set no numerical take limit, offered no surrogate, and provided no clear standard for determining when the level of anticipated take had been exceeded. The court vacated the programmatic BiOp and ITS and EPA’s approval of Florida’s § 404 permit assumption application.

In Defenders of Wildlife v. United States Forest Service, plaintiff challenged the BiOp that FWS issued to the U.S. Forest Service (USFS) for a revised Land Management Plan for logging in the Rio Grande National Forest (the “Plan”), asserting that it violated the ESA. Plaintiff alleged the FWS BiOp violated the ESA and USFS improperly relied on it in preparing revisions to the Plan. The court held USFS appropriately relied on the BiOp as the BiOp reasonably concluded the revised Plan would not be likely to jeopardize the Canada lynx population because the Plan only affects 2% of the habitat for Canada lynx. The court found that the BiOp relied on the best available science in determining the northern part of the Rio Grande National Forest was a low-use Canada lynx habitat, and reasonably considered how changes in management standards for low- and high-use areas would affect the Canada lynx population. The court affirmed the district court’s denial of plaintiff’s claim.

In Nantucket Residents Against Turbines v. United States Bureau of Ocean Energy Management, plaintiffs challenged the United States Bureau of Ocean Energy Management’s (BOEM) approval of the Vineyard Wind offshore wind project off the coast of Massachusetts. Plaintiffs alleged the BiOp prepared by NMFS violated the ESA because the project will jeopardize the critically endangered North Atlantic right whale. The court held that the BiOp was adequate as it properly analyzed the status and environmental baseline for North Atlantic right whales, relying on recent studies indicating the presence of North Atlantic right whales in southern New England waters. The court also found that BiOp adequately considered the effects of the Vineyard Wind project on North Atlantic right whales and created effective mitigation measures, including installing technology that reduces the distance pile driving noise can travel underwater, requirements to install whale noise monitoring equipment, and employing observers who can alert to North Atlantic right whales entering the construction area. The court affirmed the district court’s judgment.

In Rocky Mountain Wild v. Dallas, plaintiffs challenged a BiOp and ITS for the Canada lynx in granting a developer a right-of-way across USFS land in the Rio Grande National Forest to access the Wolf Creek Ski Area. Plaintiffs argued the proposed development should not have been included within the scope of the section 7 review of the right-of-way and the developer should have completed separate section 10 permitting. The district court ruled in plaintiffs’ favor, vacated FWS’s BiOp, and remanded USFS’s Record of Decision approving the easement. USFS and FWS appealed the district court’s decision. On appeal, the Tenth Circuit held that there was no legal error in including the proposed development within the BiOp and ITS because the plain language of the ESA includes actions that are incidental to the agency action and the proposed development is incidental to granting the right-of-way. The court affirmed the BiOp and ITS and vacated the district court’s order.

In Center for Biological Diversity v. Culver, plaintiffs challenged BLM’s approval of land management plans that designate route networks for off-highway vehicles in the Western Mojave Desert. First, plaintiffs challenged BLM’s determination that the route network project would have no effect on Least Bells’ Vireo, Southwestern Willow Flycatcher, and Yellow-Billed Cuckoo. The court found that BLM adequately consulted with FWS and made a reasoned decision in reaching the no effect determinations. Second, plaintiffs challenged FWS’s conclusion that the route network project would not jeopardize the Mojave Desert Tortoise. The court found merit in plaintiff’s argument that FWS did not address two key studies and relied on unenforceable, non-specific BLM minimization and mitigation measures. Third, plaintiffs alleged FWS used an improper surrogate for measuring take of Mojave Desert Tortoise. The court again agreed and found FWS’s rationale as inconsistent and unsupported by the record, and that the ITS did not contain reasonable and prudent measures as require. The court partially granted the plaintiffs’ motion for summary judgment and partially granted the defendants’ motion for summary judgment.

In Swan View Coalition v. Haaland, plaintiffs challenged a 2022 Revised BiOp for the Flathead National Forest's 2018 Revised Land Management Plan (Plan). A court decision invalidated an earlier FWS BiOp on the Plan because it failed to consider the impact of ineffective road closures on the baseline population for grizzly bears or the effects of the Plan on the grizzly species as a whole, among other reasons. Plaintiffs challenged the 2022 revised BiOp, alleging that FWS and USFS violated the ESA by failing to consider threats to grizzly bears and bull trout. The court ruled that FWS still failed to adequately consider unauthorized motorized use and failed to properly address the impacts of unused roads on grizzly bears. As to plaintiff’s claims that FWS failed to rationally consider the impacts on bull trout from allowing culverts to remain on impassable roads, the court agreed. The court remanded the Revised BiOp without vacatur for further consideration.

In Sierra Club v. National Marine Fisheries Service, plaintiffs challenged a NMFS 2020 BiOp on the impact that oil and gas activities in the Gulf of Mexico will have on protected marine life. In the BiOp, NMFS concluded that oil and gas activities would jeopardize the Rice’s whale and developed a Reasonable and Prudent Alternative (RPA) that imposed restrictions on vessel activity in the area where Rice’s whales are found. NMFS concluded that no other protected species would be jeopardized by the proposed activity. Plaintiffs challenged the BiOp, asserting that the jeopardy analyses, RPA, and ITS violate the APA and ESA. The court found that the 2020 BiOp violated the ESA as it underestimated the risk and harms of oil spills to protected species, that the RPA was insufficient to address the stressors that jeopardized the Rice’s whale, and that the ITS failed to recognize take from oil spills as “incidental take” under the ESA. The court granted plaintiffs’ motion for summary judgment, remanding and vacating the 2020 BiOp.

C. Section 9: Prohibited Acts

In Puyallup Tribe of Indians v. Electron Hydro, LLC, plaintiffs challenged defendant’s rock dam/spillway for a hydroelectric dam on the Puyallup River as unlawfully harming and harassing threatened Chinook salmon, steelhead trout, and bull trout. The Tribe asserted that the rock dam/spillway not only impedes the fishes’ upstream progress and the ability to spawn, but also directs these fish away from a nearby fish ladder, which would allow for their passage. Plaintiffs sought summary judgment, arguing that the rock dam/spillway represents an unpermitted take of these species and must be removed. The court found in favor of plaintiffs, noting that by impeding safe passage the rock dam/spillway disrupts the species’ normal behavior patterns and is taking threatened species without an incidental take permit, which is unlawful. The court narrowly tailored the remedy to the source of the injury, requiring removal of the center portion of the rock dam/spillway to ensure safe passage for upstream and downstream migrating fish.

In Coastal Ranches Conservancy v. California Department of Transportation, plaintiffs challenged defendants’ emergency project to repair damage to U.S. Highway 101 in the Gaviota Creek watershed, asserting that it was resulting in the take of endangered steelhead without an incidental take permit or any other exception allowed under the ESA. Defendants argued that plaintiffs’ claim fails because they were “provisionally” allowed incidental take of steelhead under ESA regulations pertaining to emergency actions and a USACE permit for the project. The Corps’ authorization suggests that the Corps informally consulted with NMFS in some manner, but there is no indication that this consultation met the requirements of 50 C.F.R. §402.05 or 16 U.S.C. §1536(b)(4). The court denied defendants’ motion to dismiss, finding that it failed to establish that it sufficiently followed the statutory requirements prior to taking actions that result in take of endangered steelhead.

In Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, plaintiffs challenged the State of Montana, the Chair of the Montana Fish and Wildlife Commission, and the Montana Governor’s authorization of recreational trapping and snaring for wolves and coyotes, alleging that future take of grizzly bears in legal wolf and coyote traps is reasonably certain to occur under the regulatory scheme. Plaintiffs asserted that the regulatory program constitutes an unlawful “take” of grizzly bears under Section 9 of the ESA and the State’s program should be enjoined until it can secure an incidental take permit. The State insisted there have been no past ESA violations and can be no future violations because the mitigation measures–like the floating season start date and requirements like trap weights and breakaway devices and mandatory new trapper educations courses–eliminating the likelihood of any future accidental capture of grizzly bears. The State argued that because there is no “verified” proof that a grizzly bear has been captured by a legally set recreational wolf trap under the State regulations, none of the past data can be considered. The court disagreed and held that undisputed evidence of past take is not required to establish reasonable certainty of future take. The court stated it does not need to wait until a recreational wolf trapper – that complies with all State laws – actually reports a trapped snared or dead grizzly bear.

In Cascadia Wildlands v. Scott Timber Co., plaintiffs challenged a proposed logging project because it would cause take in violation of the ESA by clearing acres of trees that marbled murrelets used for breeding purposes. The court agreed with the district court’s finding that the proposed logging project would eliminate 49 acres of old-growth forest occupied by marbled murrelets, constituting a “significant habitat modification or degradation.” By eliminating 49 acres, the project prevents the breeding of murrelets by preventing return to that portion of the project site to nest and engage in other breeding activities for the next century, which constitutes take. The court also determined that the plaintiffs’ evidence showed a causal connection between the proposed project and the unlawful take. The court affirmed the district court’s determination that the proposed logging project would result in “take” of marbled murrelets in violation of the ESA.

In San Luis Obispo Coastkeeper v. County. of San Luis Obispo, plaintiffs sought a preliminary injunction to prevent defendant from harming steelhead located in AG Creek. Specifically, plaintiffs allege that defendant’s management of the Lopez Dam, waterflow release schedule, and culverts infrastructure collectively harm steelhead by modifying their habitat in a way that hinders their ability to migrate, spawn, and rear. The court found that the record overwhelmingly showed that defendant’s activity was resulting in harm and plaintiff was therefore entitled to an injunction.

D. Section 10: Exceptions

In Wildearth Guardians v. Fish and Wildlife Service, plaintiff challenged a section 10(j) rule issued by FWS to authorize experimental reintroduction of black-footed ferret populations in the State of Wyoming. Plaintiff alleged that a state-wide section 10(j) rule that was not tied to a specific release population could not meet the requisite criteria under section 10(j) and violated the ESA. Plaintiff also alleged that the section 10(j) rule violated the ESA by delegating authority to Wyoming to lead reintroductions of black-footed ferrets in the state. The district court for the District of Columbia ruled that the state-wide rule was permissible under the ESA and that FWS had not delegated its authority by promulgating a rule that relied on Wyoming to initially identify and vet potential reintroduction sites. The court determined that FWS had retained final decision authority and noted that existing case law provides that a federal agency may rely on outside entities such as a state agency to provide factual information and may also “’turn to an outside entity for advice and policy recommendations, provided the agency makes the final decision itself.’”