Endangered Species & Wetlands Report

The Supreme Court this morning declined to review a Ninth Circuit decision finding that regulation of the delta smelt under the Endangered Species Act does not violate the Constitution’s Commerce Clause.

The question presented by the petition, Stewart & Jasper Orchards v. Salazar (10-1551), was this:

Yup, I'm still covered by the Commerce Clause (Photo credit: Fish and Wildlife Service)

Did the Ninth Circuit err in holding that, under this Court’s decision in Gonzales v. Raich, the Endangered Species Act is a comprehensive regulatory scheme that “bears a substantial relation to commerce,” even though the Endangered Species Act, unlike the Controlled Substances Act in Raich, is not a market regulatory scheme that governs quintessentially economic activities?

The Ninth Circuit found that “the growers’ as-applied Commerce Clause challenge to ESA §§ 77 and 9 fails because the ESA “bears a substantial relation to commerce.” Gonzales v. Raich, 545 U.S. 1, 17 (2005).

Defenders of Wildlife senior attorney Jason Rylander, who filed an amicus brief on behalf of Defenders, the Institute for Fisheries Resources, and the Pacific Coast Federation of Fishermen’s Associations, had this to say:

“Six times now, the Supreme Court has rebuffed radical special interest attacks on the constitutionality of the Endangered Species Act. The ESA properly protects all species because of their actual and potential biological, economic, and aesthetic values. There can be no doubt that the Commerce Clause provides Congress ample authority to protect America’s wildlife heritage.”

 Rylander noted that five separate courts of appeal in six cases have found the ESA constitutional.  The citations (with links to follow) are:

• Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F. 3d 1250 (11th Cir. 2007), cert. denied, 552 U.S. 1097 (2008)
• GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005)
• Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004) (Supreme Court petition) (Denial of rehearing by D.C. Circuit)
• Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied sub nom., Gibbs v. Norton, 531 U.S. 1145 (2001)
• Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 104 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998). (we need to find this one)

Here’s the Solicitor General’s brief in opposition

FWS has released its annual list of candidate species (press release) (CNOR page) (FR notice)

Let's not ignore the appointment of James Kurth as chief of the National Wildlife Refuge System.

The service also has determined that coastal California gnatcatcher is a valid subspecies and should remain listed (news release) (FR notice), and will release a draft economic analysis on a proposal to designate critical habitat for slickspot peppergrass (pictured below) on Oct. 26.

Coastal California gnatcatcher

Lepidium papilliferum (© Ken Cole)

This has been reported in the press, but here’s a link to the decision and a couple of excerpts from the 120-page decision that reversed an injunction imposed by U.S. District Judge Clarence Brimmer in Wyoming. The subject? The controversial Clinton-era Roadless Rule.

The rule, adopted after Clinton imbibed the holy water of environmentalism, has survived long enough — including eight years of non-support from the Bush Administration — that it actually regained the backing of the federal government, which adopted it in the first place.

Excerpts:

Wilderness Act

“The district court’s conclusion that the Roadless Rule created de facto wilderness in violation of the Wilderness Act was based largely on its finding that ‘wilderness areas’ governed by the Wilderness Act and IRAs governed by the Roadless Rule ‘are essentially the same,’ and that ‘[i]n fact, uses in [IRAs] are even more restricted than those permitted in congressionally designated wilderness areas.’ Wyoming, 570 F. Supp. 2d at 1349. However, a comparison of the provisions of the Wilderness Act and the Roadless Rule demonstrates that IRAs and wilderness areas are not functionally equivalent or ‘essentially the same.’ To the contrary, the two types of areas are distinct. In fact, such a comparison demonstrates that the scope of the Wilderness Act is broader than the scope of the Roadless Rule; that is, the Wilderness Act is more restrictive and prohibitive than the Roadless Rule.”

“In reaching the contrary conclusion that ‘uses in Inventoried Roadless Areas [IRAs] are even more restricted than those permitted in congressionally designated wilderness areas,’ Wyoming, 570 F. Supp. 2d at 1349, the district court relied heavily on one exception found in the Roadless Rule. The district court stated that a road could be constructed in a wilderness area to “control fire, insects, and diseases,” whereas a road could only be constructed in a roadless area in the ‘case of an imminent flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property.’ Compare 16 U.S.C. § 1133(d)(1) with 36 C.F.R. § 294.12(b)(1). Id. at 1349–50 (emphasis added). However, this distinction alone, when viewed in light of the numerous distinctions discussed above, does not demonstrate that the uses in IRAs are overall more restricted than those permitted in wilderness areas. The district court’s reliance on this single distinction in concluding that the Roadless Rule is more restrictive than the Wilderness Act was erroneous.”

Organic Act and Multiple Use Sustained Yield Act

“Under MUSYA’s statutory scheme, which supplemented the broad authority granted in the Organic Act, Congress clearly authorized the Forest Service to regulate [National Forest System] lands for multiple uses, including those protected by the Roadless Rule, such as ‘outdoor recreation,’ ‘watershed,’ and ‘wildlife and fish purposes.’  16 U.S.C. § 528.”

NEPA – Scoping

“Turning to the Forest Service’s refusal to extend the scoping period, we conclude that it was not unreasonable—that is, not arbitrary, capricious, or an abuse of discretion—to limit the period to sixty days and to decline to extend it any further. As stated above, there is no requirement mandating a minimum number of days the scoping period must remain open or requiring the Forest Service to extend or reopen the scoping period.”

The district court likewise erred in holding that the Forest Service’s failure to present detailed maps of the areas impacted by the Roadless Rule during the scoping period was arbitrary and capricious. The district court found that the Forest Service violated NEPA by failing to provide ‘maps accurately depicting the areas covered by the Roadless Rule’ because without such maps ‘Wyoming could not meaningfully participate in defining the scope of a rule when it did not know what lands within its borders would be impacted by the rule.’ Wyoming, 570 F. Supp. 2d at 1333. Again, we disagree with the district court’s conclusion…”

As Wyoming acknowledges, neither NEPA’s provisions nor the CEQ Regulations require an agency to include detailed maps or a precise geographic description of the areas potentially affected by a proposed rule during the scoping process.

Footnote 21: In any event, we are convinced that Wyoming was given a meaningful opportunity to participate in the scoping process. A review of the record demonstrates that the Forest Service’s sixty-day scoping period was adequate because of the substantial input the Forest Service was able to obtain during that period. The Forest Service conducted 187 public meetings, several of which were held in Wyoming, and received approximately 517,000 comments during the sixty days. It is virtually certain that this process produced more than enough information to “[d]etermine the scope . . . and the significant issues to be analyzed in depth in the [EIS].” 40 C.F.R. § 1501.7(a)(2).

Cooperating-Agency Status

Although it is true that the CEQ Regulations permit Wyoming to request cooperating-agency status from the Forest Service, and further authorize the agency to grant such status, nothing in the regulations mandates or requires that the Forest Service grant such a request. More importantly, the applicable regulations provide no standard for a court to apply in reviewing the Forest Service’s denial of such a request, and are likewise devoid of any standards or directives that would guide the Forest Service in granting or denying such a
request. In other words, there is simply no law to apply.

Alternatives Analysis

The district court faulted the Forest Service for only considering alternatives that prohibited road construction, based on the court’s finding that Defendants had not “directed the Court to any evidence considered by the Forest Service to support th[e] conclusory premise” that “any road construction whatsoever would degrade the desirable characteristics of [IRAs] in contravention of the purpose of the Roadless Rule.” Wyoming, 570 F. Supp. 2d at 1339. However, this finding was clearly erroneous; the record is replete with evidence
supporting the Forest Service’s decision to sharply limit road construction in each of the action alternatives analyzed in the EIS.

Second, the district court erred in finding that the Forest Service failed to consider other alternatives, aside from the four alternatives considered in detail. Wyoming, 570 F. Supp. 2d at 1338. As discussed supra, “an agency need not independently evaluate alternatives it determines in good faith to be ineffective as a means to achieving the desired ends.” AWARE, 153 F.3d at 1130. For those alternatives considered but eliminated from detailed analysis, the Forest Service was required only to “briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a).

After reviewing the record, we . . .  conclude that the Forest Service took a “hard look” at the forest management activities, which the district court mistakenly asserted that the Forest Service so “cavalier[ly] dismiss[ed].” Wyoming, 570 F. Supp. 2d at 1339.29.

More on the way…

Brimmer bio

A new GAO report says that federal agencies have spent more than $626 million on work related to the BP/Deepwater Horizon oil spill, not far from the $1 billion per-incident cap set by the Oil Pollution Act.

“Once expenditures from the [Oil Spill Liability Trust] Fund reach the cap, [the National Pollution Funds Center] will be statutorily barred from reimbursing federal agencies for response and restoration work, or paying individuals and businesses to settle claimsm,” GAO said in the report, made available today. “Consequently, if federal agencies did not receive dedicated appropriations for oil spill costs, the federal agencies would be faced with reallocating their appropriated funding to cover oil spill costs, or seeking additional funding from Congress.”

Here’s GAO’s summary:

In Process

Both the individual circumstances of the Deepwater Horizon incident, as well as the overall framework for how the federal government responds to oil spills, present a mix of evolving, but as yet uncertain, financial risks to the federal government and its Oil Spill Liability Trust Fund (Fund). The extent of financial risks to the federal government from the Deepwater Horizon is closely tied to BP and the other responsible parties. BP established a $20 billion Trust to pay for individual and business claims and other expenses. As of May 31, 2011, BP has paid over $700 million of federal and state government costs for oil spill cleanup. Federal agency cleanup and restoration activities are under way and agencies continue to incur costs and submit them for reimbursement. However, the full extent of these costs, particularly those related to environmental cleanup, may not be fully realized for some time. As cleanup costs continue to mount, it is possible that expenditures from the Fund will reach the $1 billion total expenditure per incident cap. Expenditures were over $626 million on May 31, 2011. If these amounts reach the total expenditure cap of $1 billion, the Fund can no longer be used to make payments to reimburse agencies’ costs (or to pay valid individual or business claims if not paid by the responsible parties). At that point, government agencies would no longer be able to obtain reimbursement for their costs. In November 2010, GAO suggested that Congress may want to consider setting a Fund per incident cap based on net expenditures (expenditures less reimbursement), rather than total expenditures. Finally, GAO found the federal government’s longer-term ability to provide financial support in response to future oil spills is also at risk because the Fund’s primary source of revenue, a tax on petroleum products, is scheduled to expire in 2017. GAO’s testing of the Coast Guard’s internal controls over Deepwater Horizon claims processed and cost reimbursements processed and paid showed that adjudicated claims processed and costs reimbursed were appropriate and properly documented. In November 2010, GAO made four recommendations regarding establishing and maintaining effective cost reimbursement policies and procedures for the Fund. The Coast Guard changed its operating practices to reflect lessons learned from the initial response to the Deepwater Horizon incident, and it has updated its cost reimbursement procedures accordingly. However, the Coast Guard has not yet updated its procedures for processing significant claims, so lessons learned from its experiences processing Deepwater Horizon claims could be lost. The federal government has used a variety of approaches to oversee BP’s and [the Gulf Coast Claims Facility]‘s cost reimbursement and claims processing. Soon after the Deepwater Horizon oil spill, the federal government established a Deepwater Integrated Services Team (IST), which was initially responsible for monitoring BP’s claims process, among other things. Subsequently, the oversight of cost reimbursement and claims activities transitioned to the Department of Justice, which continues to lead this and other efforts. In addition, the Department of the Interior and the National Oceanic and Atmospheric Administration are serving as the federal government’s representatives for the natural resource trustees in evaluating the environmental impact of the Deepwater Horizon spill and selecting and implementing restoration projects to be funded by BP. GAO is (1) reiterating that Congress may want to consider setting a Fund cap per incident based upon net expenditures, (2) presenting a new matter concerning extending the barrel tax used to finance federal oil spill responses to sustain program funding, and (3) making a recommendation to improve procedures for future significant spills. In responding, the Department of Homeland Security concurred with the recommendation.

Here is the report’s conclusion:

Several factors contribute to financial risks that the federal government will continue to face for a number of years as a result of the Deepwater Horizon oil spill. Future uncertainties include the total expenses of fully addressing the impact of the Deepwater Horizon oil spill and the responsible parties’ and guarantors’ willingness and ability to continue to pay, possibly for the next several decades. Uncertainty over federal financial risks also arise from the per barrel oil tax expiration in 2017—the primary revenue source for the Fund—and the need for funding in response to other potential significant spills. Given these risks, it will be important for Congress to consider whether additional legislative action would help ensure that OPA’s $1 billion per-incident cap does not hinder NPFC’s ability to reimburse federal agencies’ costs, pay natural resources damages, and pay valid claims submitted by individuals and businesses. To this end, we are reiterating the Matter for Congressional Consideration in our November 2010 report that Congress should consider amending OPA, or enacting new legislation to take into account

The previous post is below (and linked — see left)

State of Oregon’s petition (with “statutes and regulations” portion of Appendix) (and docket of 11-338)

Amicus briefs in support of petition:

National Alliance of Forest Owners and American Farm Bureau Federation, Forest Resources Association, Empire State Forest Products Association (New York), Florida Forestry Association, Georgia Forestry Association, Louisiana Forestry Association, Maine Forest Products Council, Michigan Forest Products Council, New Hampshire Timberland Owners Association, South Carolina Forestry Association, Virginia Forestry Association, and Washington Forest Protection Association (filed Oct. 17)

Alabama Forestry Association (Oct. 17)

National Association of Counties and Assn. of Oregon Counties, Idaho Association of Counties, Association of O & C Counties, and Douglas County (Oregon) (filed Oct. 12)

Arkansas and 25 other states (Alabama, Alaska, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, New Hampshire, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, and Wyoming)

Mountain States Legal Foundation

A federal judge in Colorado has shut down a uranium leasing program in that state, finding that the Department of Energy violated the National Environmental Policy Act and Endangered Species Act (Colorado Environmental Coalition v. Office of Legacy Management, 08-1624-WJM-MJW, D. Colo.).

Here’s a copy of the 53-page ruling, which the environmental plaintiffs said in a news release “invalidates [DOE's] approval of the program; suspends each of the program’s 31 existing leases; enjoins the Department from issuing any new leases; and enjoins any further exploration, drilling or mining activity at all 43 mines approved under the program pending satisfactory completion of new environmental reviews under the National Environmental Policy Act and Endangered Species Act.

From DOE's Uranium Leasing Program page

In a footnote, Martinez distinguished the decision in The Wilderness Society v. Wisely, 524 F. Supp. 2d 1285 (D. Colo. 2007).

In Wilderness Society, the court ultimately held that the failure to consult with FWS constituted harmless error because consultation with the FWS took place only two months later, prior even to the issuance of any leases, and so there was no reason to believe that a conference prior to issuance of the EA would have yielded any different results from the actual conference that took place two months later. See id. at 1302. That state of affairs is very much different than the situation present here, where the EA was issued in July 2007, consultation with the FWS had still not occurred as of June 2011, and in the meantime DOE issued 31 leases, approved five exploration plans (with the exploratory boreholes already drilled), and approved 13 [Reclamation in-lieu-of Royalties (RILOR)] plans (with the reclamation activities already conducted). The court holds that, under these circumstances, a finding of harmless error is not appropriate.”

The plaintiffs argued that DOE unlawfully relied on categorical exclusions in approving the exploration and reclamation activities. The judge, however, agreed with DOE, even though he said that “[t]he use of this particular categorical exclusion for these reclamation activities presents a closer question.” See below for more of the judge’s discussion of this issue.

More excerpts (all direct quotes)

ESA consultation

The ESA requires consultation “at the earliest possible time,” and here DOE had already attempted to assess in the EA the impacts of leasing on the four endangered fish, coming to its own conclusion that affects [sic] on the fish would be “highly unlikely.” Also, there is no evidence in the record regarding what new information DOE learned between its issuance of the EA and its current position that consultation with FWS is proper. Therefore, following The Wilderness Society, the court holds that DOE acted arbitrarily and capriciously by failing to consult with FWS prior to or immediately following the issuance of the EA, in violation of the ESA.

The court holds that DOE’s determination that effects on listed species would be “highly unlikely” satisfies this low “may affect” standard. Thus, DOE’s own conclusion in the EA on this point triggered DOE’s duty to consult with FWS. This determination in the EA was made in July 2007. By DOE’s own admission, it still had not entered into formal consultation with FWS as of June 2011, although by that time it was planning to do so. (See ECF No. 82, Ex. B, at 2-3 ¶ 6.) In the meantime, DOE issued 31 leases, approved five exploration plans (with the exploratory boreholes already drilled), and approved 13 RILOR plans (with the reclamation activities already conducted). This failure to consult promptly with FWS upon its reaching its conclusion in the EA violated ESA. See 50 C.F.R. § 402.14(a).

[C]ontrary to DOE’s representations, it did not arrive at a “no effect” determination in the EA. Instead, the EA states, “Impacts to threatened, endangered, and sensitive fish in the Dolores River or downstream in the Colorado River would be highly unlikely due to the small scale of disturbances, implementation of storm-water controls, and lack of discharge into waterways during mining operations.” (AR002715 (emphasis added).) DOE has improperly conflated the EA’s conclusion that effects on endangered fish would be highly unlikely with its current position that the ULMP would have no effect on endangered fish. The EA does not include a “no effect” determination, it includes a determination that effects on endangered fish would be “highly unlikely,” a not unimportant distinction.

NEPA

In this section of the court’s decision, the Court has only held that DOE acted arbitrarily and capriciously by failing to analyze site-specific impacts in the EA. The court orders that DOE on remand conduct a NEPA analysis that considers and analyzes site-specific impacts of the various alternatives considered. DOE has represented that it will do so through its completion of an EIS.

The court applauds DOE for planning to conduct an EIS for the ULMP that will include site-specific impacts. However, the question before the court is whether DOE acted arbitrarily and capriciously in failing to analyze site-specific impacts in its 2007 EA. The court concludes that it did.

The court declines to make a determination regarding whether the ULMP will significantly affect the quality of the human environment. That is DOE’s role.

Alternatives analysis

Plaintiffs have not discharged their burden of showing that DOE’s selection of alternatives was arbitrary and capricious.

Cooperation with other agencies

[T]he court concludes that DOE violated NEPA by failing to request the participation of EPA in the NEPA process at the earliest possible time.

Supplemental analysis

[T]he EA/FONSI was issued in July 2007, and the leases were issued during 2008. Plaintiffs have not pointed out to the court “significant” new information that was available to DOE in 2008 that was not available to it in July 2007, which would require a supplemental environmental analysis. Thus, plaintiffs have not met their burden of showing that DOE acted arbitrarily and capriciously by issuing leases pursuant to the EA/FONSI without conducting further environmental analyses under NEPA.

Categorical exclusions

“It is a stretch to characterize the reclamation activities that took place as “[r]outine maintenance activities . . . for buildings, structures, rights-of-way, [infrastructures] (e.g., pathways, roads, and railroads), vehicles and equipment, and localized vegetation and pest control.” Further, the record does not indicate that the primary purpose of reclamation of abandoned uranium mines would be “erosion control” or “soil stabilization.” The use of this categorical exclusion is further questionable given that an entirely different section of DOE’s categorical exclusions (B6) are “Categorical Exclusions Applicable to Environmental Restoration and Waste Management Activities.” See 10 C.F.R. Pt. 1021, Subpt. D, App. B.38 Nevertheless, the reclamation activities that took place did involve soil work and reseeding.

Piñon Ridge Mill

DOE’s other two arguments – that the effects of the [Piñon Ridge Mill] need not be evaluated because (1) it is being built by a company on private land, and (2) approval of the mill is controlled by other governmental entities – lack merit. Regardless of whether an EA or EIS is being prepared, the agency conducting the analysis must consider the “cumulative impacts” of the proposed action.

Nevertheless, the judge found that DOE “did not act arbitrarily and capriciously by declining to analyze the effects of the planned Piñon Ridge Mill in the 2007 EA, given the preliminary nature of the mill at that time.”

Road access

As for road access, plaintiffs’ argument fails because the EA did explicitly consider, in detail, the effects that expansion of the ULMP would have on transportation. (See AR002643-53; AR002662-63.) In terms of other uses of off-lease lands by leaseholders, plaintiffs’ undetailed argument on this point fails to carry their burden of showing that the EA failed to sufficiently analyze such off-lease impacts. However, given that DOE is being ordered on remand to conduct a NEPA-compliant analysis of the ULMP, it makes sense to point out that DOE is incorrect in its arguments in its response brief for why off-lease land uses by leaseholders need not be analyzed under NEPA. First, it argues that “[t]he scope of off-lease land uses is speculative at best at the pre-leasing stage.” (ECF No. 82, at 22 n.7.) This argument is unpersuasive for the same reason the argument that site-specific impacts need not be considered is unpersuasive, namely, because such impacts are reasonably foreseeable given DOE’s history of managing the ULMP program and its detailed knowledge regarding the mining that would occur under the expanded ULMP (e.g., how much uranium would be mined, the number and size of mines, etc).

A couple of big decisions out of Washington today, as U.S. District Judge Emmet Sullivan concluded that the Fish and Wildlife Service violated NEPA by not preparing at least an initial assessment of its 4(d) rule for the polar bear. He declined to issue an order formally vacating the rule, however, electing instead to wait until the parties come back to him with a schedule for further proceedings.

But Sullivan also said the service’s special rule  did not violate the ESA.

In a separate opinion, Sullivan said the service properly determined that the polar bear was “depleted” under the Marine Mammal Protection Act. He said it was therefore within the law to stop work on applications to import sport-hunted polar bear trophies.

Sullivan’s opinions are here and here.  Environmental groups issued a statement. Here’s a quote from John Hocevar, oceans director at Greenpeace: “The court’s decision is bittersweet — it acknowledges the devastating impact of global warming on polar bears and requires further review of the 4(d) rule, but stops short of fully disallowing an exemption for greenhouse gases. We will redouble our efforts to protect the polar bear’s Arctic Ocean habitat, and continue to press the Obama administration to use all available tools, including the Endangered Species Act, to address greenhouse emissions and the climate crisis.”

Excerpts:

ESA

“In sum, having carefully considered the parties’ arguments and the full administrative record, the Court finds that the Service reasonably determined that the prohibitions and exceptions set forth in its Special Rule for the polar bear are “necessary and advisable to provide for the conservation of [the] species,” in accordance with Section 4(d) of the ESA. Particularly in view of Congress’s broad delegation of authority to the Secretary to determine what measures are necessary and advisable to provide for the conservation of threatened species, plaintiffs have failed to carry their burden to demonstrate that the agency’s conclusions were arbitrary and capricious.”

“As a threshold matter, and contrary to plaintiffs’ assertions, nothing in the Special Rule expressly exempts greenhouse gas emissions from regulation under the ESA or any other statute.  To the extent the Service discussed greenhouse gases in the preamble to its Special Rule, the Service noted that anticipated sea ice losses as a result of greenhouse gas emissions “would not be alleviated” by an additional overlay of incidental take provisions under the ESA.”

“The question at the heart of this litigation – whether the ESA is an effective or appropriate tool to address the threat of climate change – is not a question that this Court can decide based upon its own independent assessment, particularly in the abstract.  The answer to that question will ultimately be grounded in science and policy determinations that are beyond the purview of this Court.”

“Here, the Service concluded based on the evidence before it that Section 4(d) of the ESA is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and plaintiffs have offered no compelling evidence to the contrary.  Although the Court is sensitive to plaintiffs’ arguments for a strong mechanism to combat the effects of global climate change, the Court finds that the agency’s conclusion was not arbitrary, capricious, or contrary to law. The Court is therefore prohibited from substituting either the plaintiffs’ or its own judgment for that of the agency.  The question before the Court, then, is whether the Service reasonably concluded that its Special Rule provides for the conservation of the polar bear even if it does not reverse the trend of Arctic sea ice loss.  As will be discussed below, the Court is persuaded that the agency has done so.”

NEPA

“[T]he Court is persuaded that the Service erred when it failed to conduct any NEPA review prior to issuing its Special Rule for the polar bear. ”

“[T]he Court finds that the Service was required to conduct at least an initial assessment to determine whether its Special Rule for the polar bear warranted a full “environmental impact statement” (“EIS”).  Here, the Service conducted no analysis whatsoever; as a result, its Special Rule for the polar bear violates NEPA.”

“The Court finds that vacatur of the final Special Rule is the appropriate remedy for the Service’s NEPA violation. Upon vacatur of the final Special Rule, the prior May 15, 2008, interim final Special Rule for the polar bear shall remain in effect until further Order of the Court.”

“The Court declines to recognize the broad NEPA exemption that the federal defendants urge.”

“The Court does not conclude at this stage that the Service was required to prepare a full EIS.  Notwithstanding the arguments the federal defendants make in their briefs, the Service itself made no findings as to whether its Special Rule constitutes a “major Federal action significantly affecting the human environment.”  This Court cannot draw those conclusions on the agency’s behalf based solely on the arguments of counsel.”

“[T]he Court disagrees with the federal defendants that rules promulgated pursuant to Section 4(d) of the ESA are necessarily exempt from NEPA because they are “triggered” by a listing decision, as the federal defendants contend. Listing decisions under Section 4(a) trigger all of the protective measures of the ESA, including consultation requirements under Section 7, critical habitat designations, recovery plans, take prohibitions under Section 9, and special rules for threatened species under Section 4(d). The Court is not persuaded that all of these measures are therefore exempt from NEPA review. Indeed, this Court and others have recognized that many of these actions require NEPA analysis.”

“Finally, the Court finds wholly unpersuasive the federal defendants’ argument that rules promulgated pursuant to Section 4(d) are exempt from NEPA review because they are subject to the notice-and-comment rulemaking procedures of the APA, which sufficiently furthers the goals of NEPA.”

Next steps

“By no later than November 17, 2011, the parties are directed to submit a joint proposed timetable to the Court addressing the length of time within which NEPA review shall be completed. In the event that the parties are unable to reach an agreement on a joint recommendation, each party shall submit an individual recommendation by that time. The Court shall withhold issuance of its Order vacating and remanding the final Special Rule to the Service pending resolution of this issue.”

Hunting decision

Hunters lost their fight, as Sullivan ruled that the service had “properly concluded that the  polar bear is a depleted species within the meaning of the MMPA  as of the publication of the listing rule. The Court further finds that the MMPA mandates the Service’s conclusion that sport-hunted polar bear trophies are no longer eligible for import as a result of the species’ depleted status. Sport hunting is not among the narrow, enumerated exceptions to the MMPA’s ban on taking and importing depleted marine mammals.”

“Accordingly, the Court concludes that the Service did not err when it administratively closed permit applications that were pending when the Listing Rule took effect, including those submitted by plaintiffs Hershey and Kreider.”

Just a link and the press release from Alliance for the Wild Rockies, Friends of the Clearwater, and WildEarth
Guardians for right now; more coming online and in the next issue, out this week –Editor

Just reposted the press release at 1:04 pm; AWR initially said 53 wolves had been killed in Montana alone but did not mention Idaho. The numbers are 17 in Montana and 60 in Idaho.

For Immediate Release – October 17, 2011  

Contact: Mike Garrity, Executive Director, Alliance for the Wild Rockies 406-459-5936

Emergency Injunction sought to stop Montana-Idaho wolf hunts

“Seventeen wolves have already been killed during Montana’s early archery wolf-hunting season and 60 wolves in Idaho’s wolf-hunting season,”  said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “But with the general wolf rifle season opening in Montana and Idaho around the same time the general big game rifle season is also opening, the numbers of humans with rifles in wolf habitat is about to increase exponentially. This translates into a much higher chance of wolf-human interactions as well as a much more efficient mechanism available to kill wolves during those encounters. The only way to stop this senseless, politically-driven wolf slaughter is to seek an Emergency Injunction from the federal Ninth Circuit Court of Appeals to stop wolf hunts.”

The Alliance for the Wild Rockies, Friends of the Clearwater, and WildEarth Guardians filed their request Monday, October 17, just days before Montana’s statewide big game rifle hunting season opens. “The science and national attention are turning against the recreational killing of wolves,” Garrity explained. “Nationally, people are already suggesting boycotting Montana and Idaho’s important tourism industry, which is a top revenue producer for both states. Newly-released studies are highly critical of the states’ wolf population estimates. Add in the fact that wolves only accounted for a tiny fraction of livestock losses in Montana, and the wolf hunts are exposed for what they are, which is a politically-driven ruse.”

Idaho has already issued 25,500 wolf hunting permits, and Montana has issued 11,400. “Nearly 37,000 humans armed with high-powered rifles and long-range scopes will now be trying to kill the approximately 1000 wolves remaining in Montana and Idaho,” Garrity added. “Our only option is to seek an immediate halt to what we believe is the illegal killing of wolves, which is an endangered species we’re trying to recover in the Northern Rockies.”

“Not only is the science bogus, we also believe that Congress violated the U.S. Constitution when Senator Jon Tester (D-Montana) used a rider on an unrelated appropriation bill to overturn the Federal Court’s decision that wolves should remain protected by the Endangered Species Act,” Garrity added. “In the 37-year history of the Endangered Species Act, this is the first time an endangered species has been removed from protection by Congressional fiat.”

Pointing to a strongly-worded decision recently issued by Montana Federal District Judge Donald Molloy, Garrity explained that “although ruling that he was bound by previous decisions by the Ninth Circuit Court, Judge Molloy was very direct in his opinion on the use of non-related riders on appropriation bills such as used by Senator Tester. Not only did Tester circumvent the Endangered Species Act for pure political expediency, we believe that he also violated the Separation of Powers upon which our government is founded by exempting his rider from judicial review.”

As an example, Garrity offered the following quotes directly from Molloy’s decision:

“Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed.“

“Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. That legitimacy is enhanced by a meaningful, predictable, and transparent process.”

 “If I were not constrained by which I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 [Tester’s rider] is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein…”

“We’re continuing the battle to stop the wolf killing because Judge Molloy’s ruling fully supports our contention that there is a well-established legal process that applies to every other species — pure political expediency should not be thedriving force by which of our nation’s imperiled animals and plants will or will not be protected for future generations,” Garrity explained.

“Our appeal on the constitutionality of Tester’s rider will eventually be decided before the Ninth Circuit Court,” Garrity continued. “But with the killing about to increase exponentially, we’re seeking an immediate halt to the hunts while the Court considers our case.”

The groups charge in their Emergency Motion for Injunction Pending Appeal that the delisting rider, which was sponsored by Montana’s Democrat U.S. Senator Jon Tester and Idaho’s Republican Representative Mike Simpson, violates the U.S. Constitution because it requires implementation of an agency rule that violates a court decision, but instead of changing the law that the court decision was about, it simply exempts the illegal rule from judicial review.

“While Congress absolutely has the right to make and amend laws, the wolf delisting rider (Section 1713 of the budget law, PL 112-10) does not amend the Endangered Species Act — it circumvents the judicial process and then, by exempting it from judicial review, it basically nullifies the Constitutional checks and balances between Congress and the Judicial Branch of government.”

“Even Montana’s Department of Livestock acknowledges that problems between wolves and the state’s 2.9 million domestic livestock is a localized and insignificant issue at the state level, with so few livestock affected by wolves, that justification for wolf hunting is completely inadequate, ” Garrity stated. In 2009, wolves killed 379 domestic livestock, in 2010, they killed 151, and this year only 79 so far as 2011 draws to a close. Thus, less than one percent of Montana’s livestock is affected by wolves.

“We are doing all we can to hold back the tide of wolf-killing in Montana, Idaho, and elsewhere in the Northern Rockies,” explained Garrity. “This ecologically important species is being unfairly targeted out of ignorance and intolerance and now lack a federal shield from being killed.”

“This is not just about the Endangered Species Act or wolves, it’s about the upholding the Constitution. If Congress can exempt the Tester-Simpson wolf delisting rider from judicial review, it can likewise exempt anything it does. That not only spells disaster for endangered species, but for our entire form of government.

# # #

U.S. District Judge Reggie Walton didn’t leave much to the imagination Thursday as he ruled in favor of mining companies and against the EPA — and, by association, the Army Corps of Engineers –  in a case involving an additional screening process for mountaintop mining permitds.

“Upon examining the administrative record in this case in conjunction with this Circuit’s precedent, the Court finds no reason to depart from its earlier conclusion “that it is clear . . . that the EPA has implemented a change in the permitting process.” Nat’l Mining Ass’n, 768 F. Supp. 2d at 44; see also id. (“The EC Process Memoranda impose unequivocal requirements on the exercise of regulatory authority regarding the pending permit applications.”). Accordingly, because the EPA has exceeded the statutory authority conferred upon it by the Clean Water Act, and because the MCIR Assessment and the EC Process are legislative rules not exempt from the APA’s notice and comment rulemaking requirements, the plaintiffs’ motion for partial summary judgment is granted, and the federal defendants’ motion for partial summary judgment is denied. [FN 6]

SO ORDERED this 6th day of October, 2011.

For those who care about journalistic competition, the Charleston Gazette‘s Ken Ward Jr., naturally, reported the decision first. His write-up, which adds the helpful information that Walton is “a graduate of West Virginia State College,” is at that link right there, the one that says “his write-up.” [I'm not going to explain that forever. Just assume that if a word such as "write-up" is highlighted as a URL, it will take you to said write-up.]

More links

• Ky Coal Assn MSJ brief

• U.S. reply brief (8/10/11)

• Plaintiffs’ brief in reply (7/21/11)

• West Virginia’s amended complaint (10/14/11)

• Kentucky’s amended complaint (10/17/11)