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    FWS 12-month finding on Arizona bald eagles thrown out

    Posted by Steve Davies at 7:30 pm Court calls, Daily Links, ESA, Fish and Wildlife Service, Listings
    Nov 302011

    The Fish and Wildlife Service’s 12-month finding on bald eagles in Arizona was procedurally flawed, a federal judge ruled today.

    Bald eagle (Photo by Mike Lockert, FWS)

    (Editor’s note: We initially reported that the judge found the delisting decision was “illegal,” but it appears that for now, the eagle is still off the list in Arizona. As the judge said in his order, “Plaintiffs also ask the court to enjoin [FWS] from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand. Defendants [FWS] seek an opportunity to brief the propriety of injunctive relief before the court imposes such a remedy. The court will establish a short briefing schedule and resolve the issue of injunctive relief in the next several weeks.”)

    The judge directed the parties to submit briefs by Dec. 16 on the plaintiffs’ request that the court enjoin FWS “from applying the 2007 delisting rule to the desert eagle until the 12-month finding has been revised on remand.”

    A couple of quick excerpts from U.S. District Judge David G. Campbell’s opinion:

    “The Court will set aside the 12-month finding as an abuse of discretion and require FWS to complete a new 12-month finding. Because it does not appear that the status review process was procedurally flawed, the Court will not require FWS to start the process over again with notice and public comment. The Court instead will require FWS to complete a new 12-month finding based on information gathered and consultations completed during the status review conducted in response to Judge Murguia’s order. The Court expresses no view on the proper outcome of the new 12-month finding.”

    “This Court agrees that the 2007 delisting rule was not a valid status review for the desert eagle. FWS did not comply with the notice, comment, and consultation requirements established by statute and regulations for a status review and 12-month finding. See 16 U.S.C. § 1533(b)(3)(A), (B); 50 C.F.R. § 424.14(b)(3), 15(a) & (c). As a result, the 2007 delisting rule should not have become FWS’s de facto decision on the DPS issue, to be departed from only for compelling reasons. An invalid status review should not trump a valid status review. Findings reached without appropriate notice, comment, and consultation should not become an agency’s presumptive decision. Such a procedure flies in the face of the notice, comment, and consultations requirements of the law.”

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    Sharp Park injunction to protect frog, S.F. garter snake denied

    Posted by Steve Davies at 6:00 pm Court calls, Daily Links, ESA, Wetlands
    Nov 302011

    U.S. District Judge Susan Illston has rejected environmental groups’ request for an injunction to stop certain activities at a public park in San Mateo County, California, because of the impacts on two federally listed species — the threatened California red-legged frog and the endangered San Francisco garter snake (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

    S.F. garter snake (Photo by Sue Gardner)

    The plaintiffs said they would continue to trial (scheduled for May 2012) in their fight to halt water pumping and restrict golf course operations. (See their press release, reprinted below.)

    Here is the San Francisco Public Golf Alliance‘s opposition to the motion for a preliminary injunction.

    In her Nov. 29 order, Illston said the plaintiffs had not shown “irreparable harm” to the species, a necessary test for obtaining a preliminary injunction.

    “The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction,” Illston said. “However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm.”

    Here is the relevant portion of her order:

    Plaintiffs argue that this means that in the context of the ESA, “under Supreme Court and Circuit precedent, so long as it is likely that ongoing, illegal — and especially, as here, lethal — take will occur, injunctive relief to address that take must be crafted, because Congress has afforded listed species the ‘highest of priorities,’ and has eliminated the equitable balancing otherwise required.” Pl.’s Mot. at 21 (citing TVA v. Hill, 437 U.S. 153, 194 (1978)). In other words, according to plaintiffs, they need only show that defendants’ activities are likely to cause take of a listed species. Pls.’ Mot. at 21. Plaintiffs make no mention of the requirement of showing irreparable harm absent injunctive relief in their moving papers.

    However, “even in the Ninth Circuit, plaintiffs ‘must establish the likelihood of irreparable harm in the future.’” ABA Section of Environment, Energy, and Resources, “Endangered Species Act,” 172 (Donald Baur et al., eds., 2nd ed. 2010) (citing National Wildlife Federation v. Burlington Northern R.R., Inc., 23 F.3d 1508, 1511 (9th Cir. 1994)); see also Defenders of Wildlife v. Salazar, 2009 U.S. Dist. Lexis 131058, *6 (D. Mt. 2009) (although plaintiffs likely to succeed on the merits that delisting wolves violated the ESA, they failed to show irreparable harm to the wolf population, instead of individual wolves). In support of their proposed legal standard, plaintiffs rely on a variety of cases that grant permanent injunctive relief, not preliminary injunctive relief. See Pls.’ Mot. at 21; citing Marbled Murrelet, 83 F.3d at 1067 (affirming permanent injunction upon finding that “implementation of Pacific Lumber’s harvesting plan would likely harm marbled murrelets”); Ctr. for Biological Diversity v. Marina Point Development Associates, 434 F. Supp. 2d. 789, 795 (C.D. Cal. 2006) (granting permanent injunction against developer); Animal Protection Institute v. Holsten, 541 F.Supp. 2d 1073, 1081 (D. Minn. 2008) (issuing injunction on summary judgment where the “Court finds it likely that additional takings may occur unless further regulations are implemented.”) Plaintiffs might be correct that at the final judgment stage, they need only show the likelihood of future take of a protected species to warrant injunctive relief. However, that question is not before the Court; instead, plaintiffs seek the extraordinary remedy of a preliminary injunction. Plaintiffs provide no support that the issuance of a preliminary relief should occur absent a showing of irreparable harm.

    The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction. However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm. See Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 109 (D. Me. 2008); Alabama v. U.S. Army Corps of Engineers, 441 F. Supp. 2d 1123, 1135-36 (N.D. Al. 2006) (collecting opinions); Defenders of Wildlife, 2009 U.S. Dist. LEXIS 131058 at *14 (“[T]o consider any taking of a listed species as irreparable harm would produce an irrational result” because the ESA allows for incidental take permits.) The court in Pacific Coast Federation of Fisherman’s Association v. Gutierrez, 606 F. Supp. 2d 1195 (E.D. Ca. 2008) (Wanger, J.), considered the types of harms that a plaintiff must show to demonstrate a reasonable likelihood of irreparable harm in the Ninth Circuit. The Gutierrez court noted that the standard does not require a showing of likely “extirpation” of the species, id. at 1207, but rather considers whether the action sought to be enjoined “will reduce appreciably [the species’] likelihood of survival or recovery or appreciably diminish the value of their critical habitat.” Id. (citing National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 931 (9th Cir. 2007)). The court accepted the FWS’ definition of “appreciably diminish” to mean “considerably reduce.” Id. at 1208 (citing USFWS/NMFS, ESA Section 7 Consultation Handbook (March 1998), at 4-34).

    In sum, the plaintiffs must demonstrate both that they are likely to succeed on the merits of their claim, and demonstrate that there will be a reasonable likelihood of irreparable harm absent injunctive relief.

    More from the order:

    On September 23, 2011, plaintiffs filed a motion requesting a preliminary injunction to halt defendants’ water pumping activities at Sharp Park, as well as its lawn mower and golf cart usage on holes 9 through 18 of the Sharp Park Golf Course.

    Plaintiffs, a collection of non-profit conservation groups, filed suit against the City and its officials for violation of the Endangered Species Act. Plaintiffs allege that defendants’ operations and activities at Sharp Park Golf Course have caused the “taking” of the threatened Californian red-legged frog and the endangered San Francisco garter snake and that therefore, defendants should have obtained an Incidental Take Permit (“ITP”) pursuant to Section 10 of the ESA, 16 U.S.C. § 1539(a)(1)(B).  Specifically, plaintiffs contend that defendants’ water management at Sharp Park has exposed frog egg masses to the air, causing fatal desiccation of the egg masses, thereby reducing the frog population. Plaintiffs also claim that other golf course operation activities — lawn mowing and golf cart usage — harm the Snake and Frog by running them over. Along with other relief, plaintiffs seek a declaration that defendants are violating the ESA by illegally taking the Frog and the Snake without an ITP, and an injunction against defendants to prevent ongoing activities allegedly causing take. Defendant City owns and operates the park; the Court allowed the SFPGA to intervene as a defendant in this action as well.

    PRESS RELEASE BY ENVIRONMENTAL PLAINTIFFS

    For Immediate Release, November 30, 2011

    Contact:   

    Brent Plater, Wild Equity Institute, (415) 572-6989
    Jeff Miller, Center for Biological Diversity, (415) 669-7357
    Michelle Myers, Sierra Club, San Francisco Bay Chapter, (415)-646-6930

    Lawsuit Over Sharp Park Golf Course Harm to Endangered Species Will Continue to Trial

    Judge Denies Temporary Emergency Protections for Endangered Species

    SAN FRANCISCO— A federal district court judge has denied a request for an immediate injunction against golf-course operations documented to kill and harm endangered species at Sharp Park in Pacifica. The court referred to a temporary injunction as “extraordinary relief,” and will wait until the scheduled trial next summer to consider measures to address the San Francisco Recreation and Parks Department’s pumping of water from wetlands where California red-legged frogs lay eggs and mowing of vegetation used by critically endangered San Francisco garter snakes.

    “The judge did not think that immediate restrictions on the golf course are necessary and intends to address these matters at trial,” said Brent Plater, executive director of the Wild Equity Institute and legal counsel on the suit. “We are excited to go to trial and expect the judge to craft appropriate relief once she has heard the merits of the case.”

    “It’s shameful that San Francisco intends to continue draining and mowing sensitive wetlands for another winter — you’d think the ‘green city’ would do right by its namesake endangered species,” said Jeff Miller, conservation advocate with the Center for Biological Diversity. “Because San Francisco garter snake numbers are so dangerously low, golf-course mismanagement that kills a single snake threatens the species as a whole.”

    The interim ruling does not affect the ongoing lawsuit filed by conservation groups over the Parks Department’s documented killing of endangered species. Although the court declined immediate relief, it is reserving judgment on the merits of the lawsuit until trial, which begins in July 2012. The Parks Department has no viable plan to comply with the Endangered Species Act or adequately protect endangered species.

    “Though we are saddened there will be another season where harm will fall on these fragile creatures, we are confident in our ability to make a strong case for protection of both species in trial,” said Michelle Myers of the Sierra Club.

    The judge ruled conservation groups did not show irreparable harm would occur before the case is resolved at trial. Although San Francisco does not deny golf-course operations harm endangered species and the city lacks required permits, the judge relied on assertions by Parks Department staff and hired biologists that ongoing stranding and killing of frog eggs is not hurting the overall frog population and the department’s “compliance plan” can adequately protect frogs and snakes in the short term.

    Background

    Ongoing killing of endangered frogs at the golf course and a Parks Department “restoration” plan that would actually evict endangered frogs and garter snakes from Sharp Park led to conservation groups filing suit under the Endangered Species Act and asking for an injunction on certain golf-course activities hurting endangered wildlife. Leading experts submitted declarations supporting the temporary injunction.

    The city’s Parks Department cited increased observations of frog eggs last winter as evidence of an improving population trend for red-legged frogs in Sharp Park, yet restored habitat conditions at adjacent Mori Point, managed by the National Park Service, a wet winter, and increased surveys and scrutiny by biologists are more likely explanations. Leading scientific experts, with collective experience of more than seven decades of research and study of California amphibians and reptiles, have explained that the golf course is a “population sink” that kills more frogs than are bred and alters suitable habitat, threatening the long-term survival and recovery of both frogs and snakes. The experts also objected to the Parks Department’s alleged compliance plan, which is not being followed, as “unworkable.”

    Sharp Park Golf Course faces crumbling infrastructure, annual flooding problems and ongoing environmental violations. Dozens of San Francisco community, recreation, environmental and social-justice groups are calling for a more sustainable public park at the site. A San Francisco Board of Supervisors committee will vote Dec. 5 on legislation introduced by Supervisor John Avalos that would create a long-term solution for Sharp Park by transitioning management to the National Park Service’s Golden Gate National Recreation Area. This change would not only protect endangered wildlife but also improve recreation and public access and save San Francisco taxpayers’ money. The proposed partnership would end the city’s legal and financial liabilities for Sharp Park and put the National Park Service in charge of protecting endangered species and providing public recreation, allowing San Francisco to reinvest its scarce resources in city-based parks, recreation centers and golf courses.

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    Corps did not scrutinize Fla. mall's impacts on Eastern indigo snake, D.C. Circuit finds

    Posted by Steve Davies at 12:25 pm Army Corps of Engineers, Clean Water Act, Court calls, Daily Links, Fish and Wildlife Service, NEPA, Wetlands
    Nov 292011

    Opinion is here

    Corps didn’t properly review Fla. mall’s effects: D.C. Cir. (from page 1)

    The Army Corps of Engineers should have looked more closely at the expected impact on the threatened Eastern indigo snake from construction of a large shopping mall, the D.C. Circuit Court of Appeals has ruled (Sierra Club v. Van Antwerp, 10-5284).

    The currently dormant Cypress Creek Town Center project, located outside Tampa, would result in displacement of more than 50 acres of wetlands, including habitat for the snake and the endangered wood stork.

    In its Nov. 29 decision, the circuit court essentially did the opposite of U.S. District Judge Royce Lamberth, who had issued a scathing opinion finding against the Corps on the plaintiffs’ NEPA and Clean Water Act claims (Sierra Club v. Van  Antwerp, 719 F.Supp.2d 58 (D.D.C. 2010) (07-1756 RCL).

    Instead, Circuit Judges Stephen Williams, Brett Kavanaugh and Merrick Garland upheld the Corps’ evaluation of alternatives as required by Section 404 under the CWA. The proposed mitigation is enough to compensate for the loss of the wetlands, which lack “uniqueness,” the court said, using the Corps’ word.

    The plaintiffs had argued that the court should be skeptical about the value of wetlands creation as mitigation, given its often lackluster results. But the court said “the ultimate CCTC plan called for creation and preservation of substantial substitute wetlands, the sort of mitigation measures that we have found ‘sufficiently reduce the impact to a minimum.’ Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861).”

    The court had no problem with the Corps’ acceptance of the developer’s reason for having more parking spaces than nearby malls, because there are more restaurants.

    “[B]oth sides agree that CCTC’s parking ratio exceeds that of nearby malls,” the court said. “But CCTC defends its above-average ratio by pointing to the above-average proportion of restaurants in its project. While the Sierra Club does not contest the restaurant-parking link, it argues that there is no reason for so many restaurants. CCTC, in turn, seeks to justify the high proportion by saying that it aims to create more than a traditional mall. Whereas traditional malls use 4.8 percent of their square footage for restaurants, ‘lifestyle centers’ use 11.3 percent; CCTC, a self-described ‘town center,’ is between these two figures at 8.08 percent.”

    “The Corps’ acceptance of CCTC’s parking ratio was not arbitrary or capricious in light of the practicability regulations,” which require the Corps to evaluate whether alternatives are practicable “in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations provide that “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.”

    The Corps also properly concluded that the impacts to the wood stork were not significant enough to warrant formal consultation, the court said. “[T]he Corps’ conclusions rested on the project’s mitigation measures, which will bring about a net gain of wood stork foraging habitat.”

    Sierra Club, however, contended in its opening brief that the government did not “address near term adverse impacts on breeding colonies while off-site mitigation is being implemented.”

    “Given the relatively marginal role of the lost habitat, it does not seem arbitrary or in contravention of its statutory mandate for the Corps to find that the mitigation’s more than ‘one-to-one replacement ratio’ made up for the temporary deprivation.” The court concluded.

    Snake needed more scrutiny, court says

    However, “[i]n both ESA and NEPA contexts, we . . . find that the Corps failed to adequately address indications of an adverse effect on the indigo snake.”

    In both of its findings of no significant impact, the Corps did not address possible the fragmentation of snake habitat. The second time, it was after submission of a declaration by Dr. Kenneth Dodd,  who as  Staff Herpetologist for FWS’s Office of Endangered Species had written the rule listing the snake as threatened. Dodd said “the project site was an important ‘wildlife corridor’ linking protected areas to the north and south, [and] noted that ‘movements over large areas of fragmented habitats expose Eastern Indigo Snakes to increased road mortality,’ and that ‘the more edge there is in relation to protected habitat [i.e., ratio of perimeter to surface area], the less likely large snakes can be maintained.’ ”

    Nevertheless, “In its second FONSI, issued in August 2009, the Corps again did not address the impacts of habitat fragmentation.”

    Said the court: “Given Dr. Dodd’s expertise and experience, and the seeming logic of his analysis, as well as CCTC’s own acknowledgment of the snake’s vulnerability to fragmentation risk, we think his comment qualifies as the sort of ‘relevant and significant’ public comment to which an agency must respond, lest its action be arbitrary and capricious.  See Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011). Accordingly, we must remand for further explanation by the Corps of its determination that the project was ‘not likely to adversely affect’ the indigo snake.  We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes.”

     

     

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    U.S. files brief in Sackett wetlands enforcement case

    Posted by Steve Davies at 1:15 am Court calls, Daily Links, Wetlands
    Nov 272011

    Solicitor General Donald B. Verrilli Jr. has filed the government’s brief in a wetlands enforcement case to be argued before the Supreme Court Jan. 9 (Sackett v. EPA, 10-1062).

    The Sacketts' lot in Priest Lake, Idaho

    In the brief, docketed with the court Wednesday, Nov. 23, the United States contends that Chantell and Michael Sackett, Idaho landowners who filled a half-acre of wetlands on their Priest Lake property with dirt and rock in preparation for building a home, “have no constitutional right to immediate judicial review” of EPA’s 2007 compliance order requiring them to remove the fill and restore the wetlands to their original state.

    “Petitioners cannot be subjected to civil penalties for violating the order unless and until a court determines that a CWA violation has occurred and considers the statutory factors bearing on the appropriate penalty amount,” the government brief says. “Although the risk of civil-penalty liability might deter some persons from engaging in discharges that would not actually violate the CWA, that potential deterrent effect would exist even if EPA had not issued a compliance order because the Act itself imposes liability for unlawful discharges. Petitioners have no generalized constitutional entitlement to an advisory opinion assessing the legality of conduct in which they wish to engage. Petitioners, moreover, face a choice between complying with the order and defending against a possible enforcement action only because they discharged fill on their property without first seeking a permit or consulting with EPA or the Corps. If petitioners had sought a permit, they could have obtained a final agency determination on the question of CWA coverage, and immediate judicial review of that determination, without exposing themselves to potential penalties.”

    Compliance orders “fall within the broad range of communications that agencies use to in­form regulated parties of governing legal requirements and existing violations, to encourage voluntary compli­ance or remedial measures, and to initiate consultation between the agency and the regulated person,” the government said. “Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the gov­ernment’s legal or factual assessments generally has no right to immediate judicial resolution of the disagree­ment. A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regu­lated parties, by discouraging interactive processes that can obviate the need for judicial action.”

    In addition, the compliance order is not “final agency action,” the brief said. Here’s the excerpt from that section of the government’s summary of its argument:

    The compliance order is not “final agency action.” See 5 U.S.C. 704. A Section 309(a)(3) order marks only a step in EPA’s decision-making process, not its consum­mation.  The order invited petitioners to contact EPA if they believed that the allegations in the order were inac­curate or that the specified compliance measures were infeasible. Even if petitioners failed to implement the specified measures, moreover, they could be subjected to monetary sanctions for violating the order only if (a) EPA commenced a Section 309(b) enforcement action against petitioners, and (b) the court in that suit deter­mined that petitioners had violated the CWA as well as the order.  The order therefore did not have the kind of concrete legal consequences that generally are neces­sary to constitute “final agency action.” See Bennett v. Spear, 520 U.S. 154, 177-178 (1997); FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-243 (1980) (Standard Oil).

    Links

    Pacific Legal Foundation (representing the Sacketts)

    Google search results with more

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    Responding to court's order, FWS will consider availability of whitebark pine as food source for Greater Yellowstone grizzlies (news release)

    Posted by Steve Davies at 12:16 pm Court calls, Daily Links, Fish and Wildlife Service, Listings
    Nov 242011

    For Release on November 23, 2011
    Contact: Christopher Servheen, 406-243-4903

    Greater Yellowstone Area Population of Grizzly Bears Remains Under Federal Protection
    Service to Evaluate New Information Regarding Whitebark Pine as Food Source

    The 9th Circuit Court Appeals ruled on November 22, 2011 that the population of grizzly bears in the Greater Yellowstone Area, which includes northwestern Wyoming, southern Montana, and northeastern Idaho, should remain federally protected under the Endangered Species Act (ESA).

    While the ruling means that the population will remain listed for the time being, the court also affirmed the U.S. Fish and Wildlife Service’s (Service) determination that the existing regulatory mechanisms are adequate to protect grizzlies in the Yellowstone area. The Service believes the ruling provides a clear path for eventual delisting of grizzly bears in the area once the agency analyzes and clarifies the relationship between declines in whitebark pine and grizzly bear recovery.

    “Our next step will be to better explain the relationship between whitebark pine and grizzly bear population recovery and health in the Yellowstone area. We will work with Federal and State agencies and can also call on the Great Northern Landscape Conservation Cooperative and our management partners including the Interagency Grizzly Bear Committee to help provide robust scientific information to support this effort,” said Steve Guertin, the Service’s Director of the Mountain-Prairie Region. “Through this cooperative effort, we will ensure the best available science regarding climate change and other stressors on grizzly bears and other wildlife species in the Northern Rockies is used to support our decision-making.”

    This finding for the Service recognizes the excellent work and commitment of federal and state partners to conserve grizzly bears by continuing to implement the conservation strategy developed by federal and state scientists, which incorporates intensive monitoring of the Yellowstone bears, their food sources, and their habitat.

    In moving forward, the Service will carefully assemble all the biological information on the relationship between whitebark pine cone production and grizzly recovery and develop a detailed analysis of these relationships. This scientific analysis will be the basis for a new proposal to recover and delist this grizzly population.

    The Service’s efforts to delist grizzlies in the area dates back to March 2007 when the Service announced that the Greater Yellowstone Area population of grizzly bears was a recovered and should be removed from the list of threatened or endangered species. However, in September 2009, the Federal District Court in Missoula issued an order vacating the delisting of the Greater Yellowstone Area grizzly population. In compliance with this order, the Yellowstone grizzly population was once again protected as a threatened population under the ESA.

    The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals and commitment to public service. For more information on our work and the people who make it happen, visit: www.fws.gov

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    FWS did not adequately consider loss of whitebark pine in delisting of Yellowstone grizzly, 9th Circuit finds, affirming lower court ruling

    Posted by Steve Davies at 3:09 pm Court calls, Daily Links, Fish and Wildlife Service, Listings
    Nov 222011

    The Ninth Circuit has partially affirmed a lower court ruling that found the Fish and Wildlife Service’s delisting of Yellowstone grizzly bears was unlawful (Greater Yellowstone Coalition v.  Servheen, 09-36100).

    Ursus arctos horribilis (credit: USFWS)

    Specifically, FWS did not “articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly,” the court said.

    “[O]f critical importance …, the [service's delisting] rule repeatedly acknowledges a  ‘well-documented association’ between reduced whitebark pine seed abundance and increased grizzly mortality,” the court said.

    In a news release issued the day after the decision, FWS said it would evaluate the availability of whitebark pine as a food source.

    “Based on the evidence of a relationship between reduced whitebark pine seed availability, increased grizzly mortality, and reduced grizzly reproduction, it is logical to conclude that an overall decline in the region’s whitebark pine population would have a negative effect on its grizzly bear population,” the court said. “The service advances several rationales in the rule to support its conclusion that food shortages caused by whitebark pine declines are nonetheless ‘not a threat’ to the Yellowstone grizzly.” However, the court found “all of [those rationales] lacking.”

    Circuit Judge Sidney R. Thomas partially concurred with his fellow judges, but also partially dissented, concluding that FWS relied on voluntary measures that may or may not be implemented. (See below for an excerpt.) The two judges in the majority were Circuit Judges Susan P. Graber and Richard C. Tallman. Tallman wrote the opinion.

    Here are a couple of paragraphs from the beginning of the opinion that summarize the issues and the court’s conclusion:

    The service’s delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the service’s delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA’s staunch protections.

    As to the first issue, we affirm the district court’s ruling that the service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the service’s determination regarding the adequacy of existing regulatory mechanisms was reasonable.

    In his dissent, Circuit Judge Thomas said he agreed with the majority’s conclusion that FWS did not “articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear.” But breaking with the majority, Thomas also said he would have agreed with U.S. District Judge Donald Molloy “that the agency also erred in concluding the Yellowstone grizzly is not threatened by  ‘the inadequacy of regulatory mechanisms,’ ” specifically the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area.”

    The service’s reliance on voluntary action is contrary to law. The phrase  “regulatory mechanism” plainly does not encompass voluntary, unenforceable measures such as the Strategy and many of its components. Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (interpreting 16 U.S.C. § 1533(a)(1)(D) to mean that “the [agency] must base its decision on current, enforceable measures”). The service therefore erred by considering the strategy’s voluntary and unenforceable components in its Factor D determination. Good intentions are not rules of law. Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement. See Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (noting that monitoring is not a legally binding commitment under the APA). Thus, the rule must be vacated for non-compliance with 16 U.S.C. § 1533(a)(1)(D).  See State Farm, 463 U.S. at 43 (“[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .”).

    Links

    Grizzly bear species profile from FWS

    FWS FR notice reinstating threatened status for Greater Yellowstone grizzlies (3/26/10)

     

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    Judge upholds NMFS' "endangered" listing of Cook Inlet beluga

    Posted by Steve Davies at 8:18 pm Court calls, Daily Links, Listings, NMFS
    Nov 212011

    Go here for U.S. District Judge Royce Lamberth’s opinion in State of Alaska and Escopeta Oil Company v. NOAA and Alaska Center for the Environment (10-927 RCL, D.D.C.)

    Thanks, Royce. Stop by if you're in the neighborhood.

    Here’s the judge’s summary of his 25-page opinion, issued Nov. 21, 2011:

    “The absence of an expected change is sometimes indistinguishable from the presence of an observed one. So when the best available science predicts that a recently enacted ban on subsistence hunting will reverse the abrupt depletion of a species, a decade without any noticeable recovery in the species’ population should raise a concern that the true cause of its decline has not been fully addressed. The species in this case—beluga whales in Alaska’s Cook Inlet—was nearly wiped out by a catastrophic spree of subsistence whaling between 1994 and 1998. More than a decade later, and despite the passage of a legislative moratorium on subsistence hunting in 1999, the population of Cook Inlet beluga whales has failed to show any appreciable signs of recovery. For this and other reasons, the National Marine Fisheries Service granted a petition to list the species as endangered under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The Service’s decision is rational and is supported by the administrative record, and the defendants are therefore entitled to summary judgment.”

    More to come — SD

    Links

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    Judge refuses to halt DOE assistance for Mississippi coal plant

    Posted by Steve Davies at 3:12 pm Daily Links
    Nov 182011

    A federal judge in Washington, D.C., has rejected Sierra Club’s attempt to stop the Department of Energy from providing money or a loan guarantee on a 582-MW coal-fired power plant in Mississippi, until it has fully examined environmental impacts (Sierra Club v. U.S. Department of Energy, 11-514 JDB, D.D.C.).

    The issues are not ripe for adjudication, U.S. District Judge John D. Bates said in a 21-page opinion issued today.

    DOE “has not yet made an ‘irreversible and irretrievable commitment of resources’ with respect to loan guarantees,” Bates wrote, referring to DOE’s pending decision on whether to provide guarantees for up to 80 percent of the project cost, estimated to exceed $2 billion.

    “Until [DOE] issues a Record of Decision on a guarantee, it is not committed to making one,” Bates said. “The Sierra Club may be correct that the department is closer to making a decision than the agencies were in Wyoming, Center for Biological Diversity, or Nevada.”

    But “[u]ntil DOE actually commits to a loan guarantee, it is not relevant that DOE has committed other resources to the Kemper project or that DOE seems to the Sierra Club to have made up its mind,” the judge said. “Furthermore, it is not clear that there will be no further development of the issues here. Although the EIS did discuss a loan guarantee and was entitled ‘final,’ the EIS does not itself commit resources, and the agency could very well undertake further analysis (environmental or otherwise) before actually committing resources or deciding not to commit resources. Finally, it is not relevant that deferred review might make the agency more likely to continue on its course of action or make the ultimate decision harder to undo, since that is true in virtually every situation in which courts defer review on ripeness grounds.”

    Arguing for a preliminary injunction, Sierra Club said, “Mississippi Power’s current activities at the construction site are destroying acres of forest, degrading local air quality, and disrupting an otherwise peaceful, rural community. Further construction and eventual operation of the coal plant and strip mine will destroy over 50 miles of streams and thousands of acres of wetlands, industrialize an estimated 13,925 acres of prime farmland and undeveloped forest, and burden surrounding communities with toxic air and water pollution.”

    The plaintiffs also asserted that the project “is expected to lead to electricity rate hikes of nearly 50 percent for local residents” and that “[w]hile DOE and Mississippi Power seek to justify this project’s expense and enduring environmental impacts on grounds that it will advance the development of carbon capture technology, the plant will not be required to capture, much less sequester, the 5.7 million tons of carbon dioxide equivalent1 (“CO2e”) that it will generate each year.”

    Bates said issuing an injunction would not provide the relief sought by Sierra Club:

    “Mississippi Power has provided a sworn affidavit indicating that it will proceed with the Kemper project with or without [Clean Coal Power Initiative] assistance or a loan guarantee. The Sierra Club has produced evidence that the project was unlikely to have commenced without federal funding, but has not made such a showing regarding the continued viability of the project without federal funding.  Hence, the Sierra Club has failed to meet its burden of showing that it will be irreparably harmed by DOE’s funding of the Kemper Project absent the injunction it seeks.”

    Excerpts from opinion

    [T]he court will deny the Sierra Club’s motion for a preliminary injunction and grant the federal defendants’ motion to dismiss.  The case shall proceed only on the Sierra Club’s remaining claims.

    The Sierra Club’s complaint presents five causes of action.  First, the Sierra Club alleges that DOE violated NEPA by selecting the Kemper project for CCPI funding without giving detailed consideration to alternatives other than building the plant proposed by Mississippi Power.  Compl. ¶¶ 46-49.  Second, the Sierra Club alleges that DOE violated NEPA by selecting the Kemper project for a loan guarantee without giving detailed consideration to alternatives. Compl. ¶¶ 50-53.  Third, the Sierra Club alleges that DOE violated NEPA by preparing the EIS with a specified “purpose and need” that was too narrow.  Compl. ¶¶ 54-58.  Fourth, the Sierra Club alleges that DOE violated NEPA by neglecting to consider the cumulative impact of emissions from the Kemper project in combination with emissions from other coal plants.  Compl. ¶¶ 59-62.  Fifth, the Sierra Club alleges that DOE violated NEPA by failing to disclose all the environmental impacts of the Kemper project and failing to identify mitigation measures.  Compl. ¶¶ 63-64.

    Excerpts – Sierra Club brief in support of P.I. motion (5/16/2011)

    DOE’s final EIS authorizes “a $270 million grant award and federal loan guarantees of up to $1.9 billion. Without this federal assistance, the Mississippi Power Company, a subsidiary of Southern Company, would be unable to finance its proposed ‘Plant Ratcliffe’—a new 582-megawatt (“MW”) coal plant that will burn lignite coal from a proposed 12,275-acre strip mine.  Already, DOE has disbursed nearly $50 million, which is funding ongoing construction work at the Ratcliffe site.”

    More links coming. I have to go pick up my kid.–SD

    BLM's Pinedale Anticline EIS survives appeal

    Posted by Steve Davies at 11:48 am Daily Links, NEPA
    Nov 182011

    The D.C. Circuit Court of Appeals today affirmed a lower court decision finding that BLM complied with NEPA and FLPMA when it prepared an Environmental Impact Statement for the Pinedale Anticline natural gas project in Wyoming (Theodore Roosevelt Conservation Partnership v. Salazar, 10-5386, 11/18/2011).

    Sage-grouse on the Pinedale Anticline (pic from operators' web page)

    Circuit Judges David B. Sentelle (author), Judith W. Rogers and Thomas B. Griffith determined that BLM reasonably defined its objective, examined an adequate range of alternatives, and rationally balanced competing interests when it approved an increase in wells and year-round drilling in certain areas, instead of seasonal restrictions to protect wildlife.

    The nearly 200,000 acres of the PAPA (the Pinedale Anticline Project Area) include the third-largest natural gas field in the United States. But it also includes habitat for Greater sage-grouse, a candidate species under the Endangered Species Act, as well as for mule deer and pronghorn. TRCP contended that BLM should not have abandoned the seasonal restrictions and should have provided larger buffer zones to mitigate for the effects on sage-grouse.

    The court said, however, that “even where TRCP offers evidence that a particular mitigation measure likely will be ineffective, it fails to provide any other solution that still would permit significant recovery of natural gas—a use [the Federal Land Policy Management Act (FLPMA)] requires the Bureau to balance with conservation. Specifically, TRCP argues that there is no evidence that the Bureau’s one-quarter-mile buffer for greater sage-grouse leks will prevent the sage-grouses from abandoning their leks or attending in smaller numbers. The Bureau concedes that one-quarter-mile buffers ‘will not avoid adverse consequences to the greater sage grouse,’ but the record shows that TRCP’s recommended two-mile buffer would prevent natural gas extraction in nearly the entire PAPA. Again, FLPMA prohibits only unnecessary or undue degradation, not all degradation.”

    As to the goals of the project, “Nothing in the record demonstrates that preventing all declines in wildlife populations was ever the Bureau’s management objective,” the opinion says. ”TRCP calls the Bureau’s stated objective ‘unreasonably narrow’ because it focuses only on the operators’ need to increase production, but TRCP misreads the Bureau’s explicit statement of purpose and need,” the court said. ” The Bureau does not state a purpose to enact or adopt the operators’ proposal to some degree; rather, its purpose is to ‘act upon’ that proposal.  The former language might be unreasonably narrow to the extent it presupposes approval of the proposal, thereby limiting the alternatives to be analyzed to only those that would enact the proposal.”

    BLM also adequately examined the impact of the proposed drilling on hunting and wildlife populations the court said. Here’s an excerpt:

    “The Bureau also engages in detailed analysis of the proposed development’s effects on the wildlife the TRCP members hunt, including mule deer and greater sage-grouse.  This analysis concludes that surface disturbance and loss of habitat function are likely to adversely impact the populations of several game species.  Given the direct and intuitive link between a decrease in game species and a corresponding decrease in opportunities to hunt those species, such an analysis reasonably supports the Bureau’s conclusion that hunting opportunities are likely to decrease.  Taken as a whole, the Bureau’s analysis of the proposed development’s impact on game species and hunting opportunities is ‘tolerably terse’ rather than ‘intolerably mute.’  See City of Alexandria, 198 F.3d at 870-71. We conclude that the Bureau’s discussion satisfies its hard-look mandate.”

    Nor did BLM fail to look closely at whether the drilling would cause “unnecessary or undue degradation,” one of the standards in FLPMA.

    Opined the court: “[B]y following FLPMA’s multiple-use and sustained-yield mandates, the Bureau will often, if not always, fulfill FLPMA’s requirement that it prevent environmental degradation because the former principles already require the Bureau to balance potentially degrading uses—e.g., mineral extraction, grazing, or timber harvesting—with conservation of the natural environment.  If the Bureau appropriately balances those uses and follows principles of sustained yield, then generally it will have taken the steps necessary to prevent unnecessary or undue degradation.”

    “In adopting the 2008 Record of Decision, the Bureau recognized the primary competing uses of the PAPA: the recovery of natural gas from the third-largest natural gas field in the continental United States and recreational use of the PAPA’s other natural resources. Pursuant to its multiple-use mandate, the Bureau decided to allow additional natural gas extraction in the PAPA while implementing significant measures to mitigate the degradation the Bureau conceded would be necessary to allow significant recovery. The record supports the Bureau’s determination that these mitigation measures would be adequate to prevent degradation that is unnecessary to, or undue in proportion to, the natural gas development that the 2008 Record of Decision permits.”

    The case was argued before the appeals court panel Sept. 20, nearly a year after U.S. District Judge Richard J. Leon issued his decision below.

    Background (from the decision)

    The PAPA encompasses just over 198,000 acres of federal, state, and private land in western Wyoming.  It contains what is now considered the third-largest natural gas field in the United States (Pinedale Field).  The PAPA also provides other natural resources, including recreational opportunities and wildlife habitat.  In particular, the PAPA supports part of the “winter range” for mule deer and pronghorn, which serves as survival habitat during harsh winter conditions.  The PAPA also provides year-round habitat for part of a significant population of the greater sage-grouse. This habitat includes mating-display grounds called leks as well as brood-rearing areas and wintering areas.  Mule deer, pronghorn, and sage-grouse are game species of particular interest to this region’s hunters.

    The Bureau manages the roughly 80 percent of the federally owned land and resources in the PAPA.  The government has leased most of its mineral resources, including most of the Pinedale Field, to oil and gas companies (the Operators). Energy development in the PAPA remained negligible until the 1990s, when new drilling technology allowed for commercially practicable recovery of the PAPA’s natural gas.

    More info

    District court citation: Theodore Roosevelt Conservation P’ship v. Salazar, 744 F. Supp. 2d 151 (D.D.C. 2010)

    Theodore Roosevelt Conservation Partnership page

    TRCP FAQ on litigation

    Complaint in district court (10-1047, D.D.C.)

    TRCP appeals district court decision (press release, 12/15/2010)

    Pinedale Anticline Project Office (BLM page) and SEIS page

    Pronghorn, sage grouse still above matrix “triggers” (Joy Ufford, Sublette (Wyo.) Examiner, 11/7/11)

     

     

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    Ninth rules for FWS, Revett Silver Co., on plans for silver/copper mine in NW Montana

    Posted by Steve Davies at 4:12 pm Biological Opinions, Court calls, Daily Links
    Nov 162011

    Pond above the proposed Rock Creek mine site. Credit: Doug Day

    Here are the first three paragraphs of the opinion in Rock Creek Alliance v. USFWS, 10-35596):

    “Plaintiff-Appellant Rock Creek Alliance appeals the district court’s grant of summary judgment in favor of Defendant-Appellee the U.S. Fish and Wildlife Service and Intervenor-Defendant-Appellee Revett Silver Company in an action brought pursuant to Section 7 of the Endangered Species Act, which requires federal agencies to consult with the Fish and Wildlife Service before undertaking any action “authorized, funded, or carried out” by the agency that might “jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat” used by any endangered or threatened species. 16 U.S.C. § 1536(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s well-reasoned opinion.

    “Revett Silver Company proposes to build and operate a copper and silver mine in northwest Montana, part of which will be on land managed by the U.S. Forest Service. Because the mine may impact two species listed as threatened under the Endangered Species Act—the bull trout and the grizzly bear—the Forest Service was required to engage in formal consultations with the Fish and Wildlife Service before approving the mine. 16 U.S.C. § 1536(a)(1). As a part of those consultations, the Fish and Wildlife Service issued two biological opinions that concluded that the mine would result in “no adverse modification” to critical bull trout habitat and would result in “no jeopardy” to the local grizzly bear population.

    “In the district court, Rock Creek Alliance challenged the biological opinions, arguing that the Fish and Wildlife Service’s conclusions were arbitrary, capricious, and violated the Endangered Species Act. The district court disagreed, and granted summary judgment in favor of the Fish and Wildlife Service and Revett Silver Company. Rock Creek Alliance then appealed, arguing that: (1) the Fish and Wildlife Service improperly relied on large-scale analysis in evaluating the mine’s impact on bull trout; (2) the Fish and Wildlife Service did not adequately address the mine’s impact on bull trout recovery; (3) the methodology for calculating grizzly bear mitigation habitat was flawed; and (4) the grizzly bear habitat mitigation plan was unreasonably speculative.”

     Links

    District court opinion (Rock Creek Alliance v. U.S. Forest Serv., 703 F. Supp. 2d 1152, D. Mont. 2010) (5/4/2010)

    Revett press release  (11/16/2011)

    Revett stock soars (The Street, 2:10 pm EST, 11/16/2011)

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