Dec 302014

The Fish and Wildlife Service will conduct a status review on the threatened coastal California gnatcatcher in response to a delisting petition, the service said in a 90-day finding to be officially published Dec. 31.

Pacific Legal Foundation filed the petition earlier this year, claiming the bird was not a valid subspecies.

The service's finding was brief, to say the least. In its entirety, it reads, "Based on our review of the petition and sources cited in the petition, we find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted for the coastal California gnatcatcher (Polioptila californica californica).

"Thus, for the coastal California gnatcatcher, the service requests information regarding the species taxonomy and listing factors under section 4(a)(1) of the Act."

A news release was more specific. It said FWS "is particularly interested in receiving new morphological, genetic or other relevant information about the bird; analyses or new interpretations of existing morphological, genetic or other information; the methods, results and conclusions of 2000 and 2013 research by Robert Zink et al., on which the 2014 petition heavily relies; and information related to consideration of the coastal California gnatcatcher as a Distinct Vertebrate Population Segment (DPS) under the ESA."

An earlier petition filed by PLF resulted in a negative 90-day finding. But this time, the petitioners have a new study of DNA evidence.

Polioptila californica californica (photo from FWS)

The petition was filed by PLF on behalf of Property Owners Association of Riverside County, the Center for Environmental Science, Accuracy & Reliability (CESAR), and the Coalition of Labor, Agriculture, and Business (COLAB). The California Building Industry Association and the National Association of Home Builders, represented by Robert Thornton, a partner with Nossaman LLP, joined the petition.

"[T]he petition is based on a peer-reviewed study of gnatcatcher DNA by Dr. Robert Zink of the University of Minnesota and several other scientists," PLF said in a news release. "The 2013 study, published in the respected ornithological journal The Auk, confirms earlier genetic studies of gnatcatcher DNA by Dr. Zink. The new study concludes that gnatcatchers in California are not genetically distinct from the abundant populations of gnatcatchers south of the border. The new DNA evidence is precisely the information that federal officials have suggested would warrant removing the ESA listing."

Zink's study is contained in the delisting petition

Gnatcatcher docket

Dec 292014

FWS agrees to conduct status review

The Fish and Wildlife will review the status of the monarch butterfly before deciding whether to propose listing it as threatened or endangered, the agency announced Dec. 29.

The 90-day finding, the first step the service takes in responding to listing petitions, will be published Dec. 31 in the Federal Register. (The notice was released for public inspection Dec. 30.)

In today's announcement, FWS said that threats to the butterfly "include habitat loss – particularly the loss of milkweed, the monarch caterpillar’s sole food source – and mortality resulting from pesticide use. Monarch populations have declined significantly in recent years."

Chrysalid and monarch (from, a renewable energy company in Scottsdale, Ariz.)

The petition was filed by the Center for Biological Diversity, Center for Food Safety, Xerces Society and "renowned monarch scientist Dr. Lincoln Brower," the petitioners said in their own news release, which asserted:

The butterfly’s dramatic decline is being driven in large part by the widespread planting of genetically engineered crops in the Midwest, where most monarchs are born. The vast majority of genetically engineered crops are made to be resistant to Monsanto’s Roundup herbicide, a potent killer of milkweed, the monarch caterpillar’s only food. The dramatic surge in Roundup use with Roundup Ready crops has virtually wiped out milkweed plants in Midwestern corn and soybean fields. In the past 20 years it is estimated that these once-common iconic orange and black butterflies may have lost more than 165 million acres of habitat — an area about the size of Texas — including nearly a third of their summer breeding grounds.

Monarch docket

Dec 232014

Dec 222014

San Luis & Delta-Mendota Water Authority v. Locke (12-15144) (D.C. No. 09-1053-LJO-DLB)

Panel: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Thomas O. Rice, District Judge, sitting by designation from the Eastern District of Washington. Opinion by Tallman.

Here's the opinion and here's the summary of the decision from the court:

The summary "constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader."

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded for entry of summary judgment in favor of defendants, federal agencies and intervenor-environmental groups, in an action pertaining to a formal Biological Opinion developed by the Commerce Department’s National Marine Fisheries Service pursuant to the Endangered Species Act regarding the impact of continuing water extraction in the California Central Valley on certain threatened and endangered Salmonid species.

The Marine Fisheries Service in its 2009 Biological Opinion determined that the Department of Interior Bureau of Reclamation’s proposed water project in the Central Valley would jeopardize some of the Delta’s endangered Salmonids. To remedy this problem, the Marine Fisheries Service has required the Bureau to change the way it pumps water out of the Central Valley’s rivers. A number of groups that depend on the Central Valley’s water sued to halt this change. On summary judgment, the district court found, in part, that the Marine Fisheries Service violated the Administrative Procedure Act’s arbitrary or capricious standard when developing much of the Biological Opinion.

On an initial evidentiary question, the panel held that the district court went beyond the exceptions, set forth in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2004), when it admitted extra-record declarations and substituted the analysis in those declarations for that provided by the Marine Fisheries Service.

The panel held that the district court did not give the Service the substantial deference it was due under the Administrative Procedure Act. The panel found that the components of the Biological Opinion invalidated by the district court were reasonable and supported by the record and therefore the panel upheld the Biological Opinion in its entirety.

Specifically, the panel found that: (1) the Service acted within its substantial discretion when it used raw salvage data instead of data scaled to fish population to set flows in the Old and Middle Rivers; (2) the Service’s jeopardy opinion components were not arbitrary and capricious as they pertained to the winter-run Chinook, the Southern Resident orca, the steelhead critical habitat, and the impact of indirect mortality factors on the listed species; and (3) the Biological Opinion’s challenged reasonable and prudent alternative actions were not arbitrary and capricious.

Affirming, on cross-appeal, several components of the district court’s opinion, the panel held that the Marine Fisheries Service did not need to distinguish between discretionary and non-discretionary actions; that the Biological Opinion’s indirect mortality factors were direct effects under the Endangered Species Act; and that Bureau of Reclamation was not independently liable under the Endangered Species Act.

Dec 192014

The Ninth Circuit has found Sea Shepherd, founder Paul Watson and six volunteer members of the Sea Shepherd US board in contempt of court for violating an injunction that forbade the group's ships from coming within 500 yards of Japanese whaling ships (Institute of Cetacean Research v. Sea Shepherd, 12-35266).

Order and amended opinion from May 24, 2013  |  Tweets

"Our thorough review of the record in this case, and the concessions of counsel at oral argument, compel us to hold Sea Shepherd US, Watson, and Sea Shepherd US’s volunteer board members in contempt for violating our injunction," Chief Judge Alex Kozinski and Circuit Judges A. Wallace Tashima and Milan D. Smith said in their 51-page opinion, on which Smith took the lead.


Here's the opinion's first paragraph:

Institute of Cetacean Research (Cetacean), Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki Miura (collectively, Plaintiffs) filed this
contempt proceeding against Sea Shepherd Conservation Society (Sea Shepherd US), its founder Paul Watson, its administrative director Susan Hartland, and six volunteer members of the Sea Shepherd US board (collectively, Defendants). The Plaintiffs allege that the Defendants violated our injunction prohibiting Sea Shepherd US, Watson, and “any party acting in concert with them” from physically attacking or coming within 500 yards of the Plaintiffs’ whaling and fueling vessels on the open sea.

Excerpts from the end (Full opinion embedded below)

We hold that the Plaintiffs are entitled to recover attorney’s fees and costs incurred in bringing and prosecuting these contempt proceedings. “[T]he cost of bringing the violation to the attention of the court is part of the damages suffered by the prevailing party and those costs would reduce any benefits gained by the prevailing party from the court’s violated order.” Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir. 1985). At a minimum, the Plaintiffs shall recover their fees and costs against Sea Shepherd US and Watson. The Plaintiffs are also entitled to compensation for any actual damages suffered and resources (such as fuel and personnel costs) that were wasted as a result of the Defendants’ contumacious acts interfering with the Plaintiffs’ mission. We will re-refer this matter to the Appellate Commissioner to determine the appropriate amount of attorney’s fees and costs as well as compensatory damages to award. The Commissioner shall determine whether the volunteer directors should also be held liable, and the extent to which each of them should be held liable, jointly and/or severally.

The Plaintiffs’ requests for coercive sanctions and an order to compel compliance should be directed to the district court. Our opinion of February 25, 2013, as amended May 24, 2013, provided that the preliminary injunction “will remain in effect until further order of this court.” Inst. of Cetacean Research, 725 F.3d at 947. However, we issued our mandate on June 7, 2013, at which time the district court assumed supervision over the Defendants’ present compliance with the preliminary injunction. While we retain jurisdiction to order remedial relief for acts of contempt that took place prior to the issuance of our mandate, because these coercive sanctions are forward-looking, we believe that policing the Defendants’ continuing compliance with the preliminary injunction is better left to the district court, subject to our review on appeal. This panel retains jurisdiction over all appeals in this case.

Dec 192014

Opinion and order (latter embedded below) in Humane Society of the U.S. . Jewell (13-00186-BAH, D.D.C.)

Howell, in D.C., reinstates protections
in Michigan, Minnesota and Wisconsin

In a news release, the Humane Society said that in her opinion, U.S. District Judge Beryl Howell "chided the USFWS for failing to explain why it ignored the potential for further recovery of wolves into areas of its historic range that remain viable habitat for the species.  The court also noted that the USFWS has failed to explain how the “virtually unregulated” killing of wolves by states in the Great Lakes region does not constitute a continued threat to the species."

HSUS complaint  ♦  Final rule delisting Great Lakes wolf (12/28/11)  ♦  FWS Western Gray Lakes gray wolf page  ♦  ECOS page  ♦  CBD page  ♦  "Policy Issues Regarding Wolves in the Great Lakes Region"  ♦  Dateline Minnesota  ♦  AP (in Detroit News)  ♦  Selected court documents:  FWS brief  ♦  HSUS brief  ♦ Minnesota brief  ♦  Minn. 2012 wolf rules  ♦  HSUS opp. to AFWA amicus request  ♦  Declaration of Edward K. Boggess

From AP story about Minnesota:

ST. PAUL, Minn. — State officials say Minnesotans can no longer kill wolves unless their lives are in danger.

The change was brought about by a federal judge's ruling Friday effectively restoring gray wolves to the endangered species list in Great Lakes states.

Department of Natural Resources spokesman Chris Niskanen says that means farmers and ranchers concerned about wolves preying on cattle can't kill the wolves themselves. Instead, they should call conservation officers.

U.S. District Judge Beryl Howell's decision could also halt Minnesota's wolf hunting and trapping seasons. But Niskanen says the federal government's stance could change again before the state sets its wolf hunting season next summer.

Photo links to Legal Times story in unrelated case  



Dec 182014

A district court judge has let stand NMFS' Biological Opinion for the Atlantic sea scallop fishery, but remanded the matter to NMFS "for the limited purpose of addressing the deficiencies in the Incidental Take Statement" (Oceana v. Pritzker 08-1881 PLF, D.D.C).

Oceana lost on most of its challenges. But District Judge Paul Friedman said the agency had not adequately explained how it would monitor take of loggerhead sea turtles.

Opinion | Coverage by Seafood News | You also can scroll down to read the opinion.


The Court agrees with Oceana that the agency must address both the survival and recovery prospects of the loggerhead. But its argument based on that premise extends no further than the conclusory statements that the Court has quoted above; if there is some logic to its contention that NMFS’ construction of “reduce appreciably” necessarily reads “recovery” out of the regulation, Oceana does not elucidate that linkage.

Nor is the Court persuaded by Oceana’s related contention, advanced in its reply brief, that the agency’s analysis of the Fishery’s effect on loggerheads’ recovery prospects is “perfunctory,” and, in effect, no different than its analysis of the Fishery’s effects on survival. See Oceana Reply at 9-10. The BiOp includes a fairly extensive discussion of recovery impacts, centered on the recovery criteria established in the 2008 Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle. See SAR 13148-49, 13265-68. NMFS specifically finds in the BiOp that interactions between loggerheads and the Fishery will not lessen the species’ genetic heterogeneity, see SAR 13268, and it further determines that the continued operation of the Fishery will not affect two of the loggerheads’ recovery criteria— the number of nests and nesting females, and trends in abundance on foraging grounds — to such an extent that there would be an appreciable reduction in their likelihood of recovery.

Thus, the Court does not agree with Oceana’s suggestion that the ESA’s plain language is unambiguous — equating “jeopardize the continued existence” with any degree of reduction in the likelihood of a species’ survival and recovery. To the contrary, the statutory text simply does not speak directly to the question of how jeopardy to a species’ continued existence is to be assessed.

NMFS, as an expert agency charged with administering the ESA, may reasonably conclude that a given agency action, although likely to reduce the likelihood of a species’ survival and recovery to some degree, would not be likely to jeopardize the continued existence of the species. Of course, this does not mean that NMFS has unfettered discretion to permit any degree of reduction in the likelihood of a species’ survival and recovery.

The Court shares Oceana’s concerns regarding the effectiveness of a monitoring mechanism that is only able to assess every five years whether an annual take limit has been exceeded.

But the BiOp’s terse treatment of trawl take monitoring makes it difficult for the Court to discern NMFS’ rationale in this regard. As noted, the long gap in measuring trawl takes stands in marked tension with the regulatory requirement that NMFS reinitiate Section 7 consultation “immediately” if “during the course of the action the amount or extent of incidental taking . . . is exceeded.” 50 C.F.R. § 402.14(i)(4). The single paragraph that NMFS devotes in the BiOp to explaining its monitoring choice is insufficient to allay this concern. Nor does the paragraph addressing trawl take monitoring discuss in any detail the nature of NMFS’ statistical model and its data needs. NMFS also fails to address whether any monitoring alternatives exist that might be operable on a shorter timetable. Given these serious uncertainties about the effectiveness of the five-year monitoring framework, the Court must remand to the agency so that it can either provide a more thorough explanation of its choice, or, if unable to do so, reach a different conclusion.

Dec 172014

The Ninth Circuit yesterday affirmed a lower court order upholding federal agencies' review and approval of the Beaverslide Project and its effect on the threatened Northern spotted owl (Conservation Congress v. Finley, 12-16916).

See below for a summary of the decision, which addresses claims brought under the ESA, NFMA and NEPA. Follow the link in the first paragraph for the whole decision, or scroll down to read it.

The judges on the decision were Chief Judge Sidney R. Thomas and Circuit Judges Diarmuid F. O’Scannlain and M. Margaret McKeown. Thomas wrote the opinion.

The district judge whose opinion was affirmed is Samuel Conti. (District court opinion)

 Summary (which "constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.")

The panel affirmed the district court’s summary judgment in an action brought under the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act concerning a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project, and its effect on the threatened Northern Spotted Owl.

The panel first held the district court properly held that plaintiffs provided sufficient notice of intent to sue to confer jurisdiction on the district court to entertain the Endangered Species Act claims. The panel further held that the Endangered Species Act claims were not moot because the Forest Service’s and Fish and Wildlife Service’s newer post-2012 consultation on the Northern Spotted Owl’s critical habitat focused specifically on addressing the redesignation of critical habitat, and did not remedy the alleged failures in prior consultations to address information in a revised 2011 Recovery Plan for the Northern Spotted Owl.

The panel held that the district court properly granted summary judgment to the government on the merits of plaintiffs’ claims under the Endangered Species Act. The panel held that the district court properly concluded that the Forest Service did not violate the consultation requirements of 50 C.F.R. § 402.16 because the Forest Service did not fail to consider any allegedly “new information” covered by the 2011 Recovery Plan that was not previously considered. The district court also properly concluded that the agencies did not fail to use “the best scientific and commercial data available,” as required by the Endangered Species Act.

The panel held that the Forest Service’s and Fish and Wildlife Service’s consultations and conclusions that the Beaverslide Project was not likely to adversely affect the Northern Spotted Owl were adequate under 50 C.F.R. § 402.16, 16 U.S.C. § 1536(a)(2), and the “hard look” standard of National Environmental Policy Act. Their actions therefore were neither arbitrary nor capricious.