Jul 112014

Panel reverses district court

In a significant victory for the Environmental Protection Agency, the D.C. Circuit Court of Appeals reversed U.S. District Judge Reggie B. Walton and found that EPA and the Army Corps of Engineers acted within their legal authority when they adopted an Enhanced Coordination Process to review mountaintop mining “valley fill” permits in Appalachia (National Mining Association v. McCarthy, 12-5310):

We conclude that the Enhanced Coordination Process memorandum is a procedural rule that EPA and the Corps had authority to enact under the Clean Water Act. Under our case law, we conclude that the Final Guidance is not a final agency action subject to review at this time. We therefore reverse the District Court’s grant of summary judgment and remand to the District Court with instructions to grant judgment for defendants on the Enhanced Coordination Process and to dismiss the challenge to the Final Guidance.

The court also said that a guidance document adopted by EPA and the Corps was not a final agency action and thus not judicially reviewable at this time.

The judges on the panel were Thomas B. Griffith, Brett M. Kavanaugh and Sri Srinavasan. Kavanaugh wrote the decision.

http://www.eswr.com/docs/cts/dcc/12-5310-1502014.pdf  Opinion from ESWR and from D.C. Circuit site

Earthjustice news release

Greenwire story (Jeremy P. Jacobs and Manuel Quiñones)

Charleston Gazette story and Ken Ward Jr.’s Coal Tattoo blog

Rep. Nick Rahall (D-W.V.) slams decision (press release)

Coverage by The Hill newspaper

Earthjustice on Walton’s 7/31/2012 decision

Ward’s blog entry from Aug. 2, 2012 and right after Walton’s decision was issued

Walton will consider four extra-record documents in case (ESWR, 4/20/2012)

Write-up of Walton’s thinking in 2011

Related and recent: USGS study finds fish populations affected by mountaintop mining (Study)

For coverage of the D.C. Circuit arguments, which appeared in the latest issue of ESWR, please send an email to poplarav AT gmail.com

Audio of oral arguments

Jul 102014

The Turtle Island Restoration Network and Center for Biological Diversity have asked a federal court to order the National Marine Fisheries Service “to implement the Pacific Loggerhead Conservation Area, a fishery closure during June, July and August of predicted El Niño years,” the groups said in a news release today.

Loggerhead sea turtle (Caretta caretta) (Photo by Marco Giuliano)

Pacific loggerhead sea turtles come to the area to feed during El Niño years’ warmer-than-usual waters,” the groups said. “The drift gillnet fishery, which uses mile-long nets soaked overnight to catch swordfish and thresher shark, catches and drowns more sea turtles during El Niño conditions.”

The case is Center for Biological Diversity v. Pritzker (14-3125, Cal. N.D.).

In another suit filed July 8, CBD challenged Forest Service plans to cut more than 5,000 acres of burned trees in the Tahoe and Sierra national forests (Earth Island Institute v. Quinn, 14-3101 JST, Cal. N.D.)

California spotted owl in cedar (Photo by Marek Jakubowski via SNAMP.)

“The areas at issue provide crucial habitat for wildlife such as California spotted owls, imperiled black-backed woodpeckers, bats, bluebirds and many other species that use the fire-killed trees and native shrub patches that fires create,” the center said in a news release.














SNAMP (Sierra Nevada Adaptive Management Project)




Jul 102014

U.S. District Judge Barbara Jacobs Rothstein will not reopen a case against the Interior Department over its 2008 stream buffer zone rule (Coal River Mountain Watch v. Jewell, 08-2212 BJR, D.D.C., 7/9/14).

In February, Rothstein found in a separate case that the Office of Surface Mining should have consulted under Section 7 of the ESA before promulgating the 2008 rule (National Parks Conservation Association v. Jewell, 09-115 BJR, D.D.C). She vacated the rule and did not rule on other claims brought by NPCA. She also dismissed the Coal River Mountain Watch action as moot.

Coal River and nine other environmental plaintiffs claimed, however, that they were “still entitled to a decision from the court as to whether, in addition to the [ESA], OSM’s promulgation of the 2008 Rule violated the SMCRA, the APA, and the NEPA,” Rothstein said in her July 9 order.

“The Coal River Plaintiffs have not met their burden of showing extraordinary circumstances, such as an intervening change of controlling law or the availability of new evidence, which would warrant granting their motion. Rather than point to extraordinary circumstances, the Coal River Plaintiffs instead ask this court to reconsider arguments that were previously made and rejected, arguing that this court committed clear legal error in deciding that their claims are moot.”

But the judge said the plaintiffs’ claims are indeed moot, and any opinion she might issue on whether the 2008 rule violated the APA, CWA or NEPA “would necessarily be advisory, something a federal district court is prohibited from doing.”

Jul 092014

The National Marine Fisheries Service and Fish and Wildlife Service have released final rules designating critical habitat for threatened loggerhead sea turtles in the Northwest Atlantic. (NMFS page on loggerhead CH) (FWS page). The rules are scheduled to be published in the Federal Register Thursday, July 10.

The NMFS rule includes marine areas; the FWS rule includes the beaches that loggerheads use as nesting areas.

The Center for Biological Diversity hailed the decision, saying that the largest CH designation in history — including 685 miles of beaches from Mississippi to North Carolina and more than 300,000 square miles of ocean — “promises to conserve areas necessary for recovery.” (More from CBD)

FWS noted that its rule includes “88 nesting beaches in coastal counties located in North Carolina, South Carolina, Georgia, Florida, Alabama and Mississippi. These beaches account for 48 percent of an estimated 1,531 miles of coastal beach shoreline used by loggerheads, and about 84 percent of the documented numbers of nests, within these six states.”


Map from NMFS

Jul 092014

July 9 — In his opening statement at a markup of the Interior and Environment spending bill, subcommittee chairman Ken Calvert (R-Calif.) made a point of addressing some of the ESA provisions:


Rep. Ken Calvert (R-Calif.), before subcommittee hearing on FY 2015 Interior-Environment appropriations bill (Click for video of Calvert)

“This subcommittee has no interest in forcing any species to go extinct. What we’re concerned about is federal regulatory action based more on arbitrary legal deadlines than on common sense. Nowhere is this more evident than with sage-grouse.

“States are rightfully concerned that a federal takeover of sage-grouse will jeopardize existing conservation partnerships with states and private landowners which are necessary to save sage-grouse. This takeover would eliminate jobs and curtail future job growth; devastate state and local economies; and undermine the nation’s ability to develop conventional and renewable resources for energy independence.

“So long as sage-grouse are not under imminent threat of extinction, cooperative conservation must be given a chance to work. That is why this bill includes a one-year delay on any decision to list sage-grouse along with a strong cross-cutting budget to help implement these collaborative conservation plans.”



SEC. 116. None of the funds made available by this Act or any other Act may be used before October 1, 2015, for any study, nor to withdraw or finalize any rule, with regard to the valley elderberry longhorn beetle under the Endangered Species Act of 1973 (16 U.S.C. 1351 et seq.), except that the Secretary of the Interior shall accept for the record additional public comments on the Peer Review of the Scientific Findings in the Proposed Rule to Delist the Valley Elderberry Longhorn Beetle, dated January 2013, for a period of no less than 180 days following the date of the enactment of this Act.


SEC. 117. None of the funds made available by this or any other Act may be used by the Secretary of the Interior to write or issue pursuant to section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533)—

(1) a proposed rule for greater sage-grouse (Centrocercus urophasianus);
(2) a proposed rule for the Columbia basin distinct population segment of greater sage-grouse;
(3) a final rule for the bi-state distinct population segment of greater sage-grouse; or (4) a final rule for Gunnison sage-grouse (Centrocercus minimus).


SEC. 118. The United States Fish and Wildlife Service shall release for public comment and submit for scientific peer review not later than December 30, 2015, individual or multi-species recovery plans for the Sierra Nevada yellow-legged frog; the northern distinct population segment of the mountain yellow-legged frog; and the Yosemite toad. The plans shall include analyses of social and economic impacts of implementing recovery actions as well as efforts to minimize such impacts as required by the policy published on July 1, 1994 (59 Fed. Reg. 34272 et seq.).


SEC. 429. None of the funds made available in this Act or any other Act for any fiscal year may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), including the provisions of the rules dated November 13, 1986 and August 25, 1993, relating to said jurisdiction, and the guidance documents dated January 15, 2003 and December 2, 2008, relating to said jurisdiction.


SEC. 430. None of the funds made available by this Act may be used to develop, carry out or implement (1) guidance, policy, or directive to reinterpret or change the historic interpretation of 30 C.F.R. § 816.57, which was promulgated on June 30, 1983 by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior (48 Fed. Reg. 30,312); or (2) proposed regulations or supporting materials described in the Federal Register notice published on June 18, 2010 (75 Fed. Reg. 34,667) by the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior.


SEC. 432. None of the funds made available by this Act may be used to develop, propose, finalize, administer,
or implement the National Ocean Policy developed under Executive Order 13547. Not later than 60 days after the
date on which the President’s fiscal year 2016 budget request is submitted to the Congress, the President shall
submit a report to the Committees on Appropriations of the House of Representatives and the Senate identifying
all Federal expenditures by fiscal year since 2011, by agency, account, and any pertinent subaccounts, for the
development, administration, or implementation of such National Ocean Policy. The President’s budget submission
for fiscal year 2016 shall identify all funding proposed for the implementation of such National Ocean Policy.


SEC. 439. None of the funds made available in this Act or any other Act may be used by the Environmental Protection Agency to develop, adopt, implement, administer, or enforce any change to the regulations in effect on October 1, 2012, pertaining to the definitions of the terms “fill material” or “discharge of fill material” for the purposes of the Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.).


A few quotes

Rep. Harold Rogers (R-Ky.), chairman of the full appropriations committee, also spoke. A couple of highlights:

Administration “has tried to find new regulations that hamper economic activity.”

On waters of the U.S. proposal: “EPA seeks to gain jurisdiction over most of the country.”

On getting requested information from agencies. No agency, he says, is worse than EPA; “they just simply will not respond to inquiries.” EPA’s congressional affairs and budget office funding cut by 50 percent. Funding for EPA Administrator’s office also cut by half. “So let the word go forth. We want info.”

Moran: “Obviously there are going to be amendments at the full committee level. This is as good a bill … as we could have gotten out of subcommittee.” The issues “will be fully debated at the full committee level.”


Jul 082014

Editor’s note: The original article was missing a “not” before “spend any money” in the first sentence of the second paragraph.

Also: Judge tells EPA to respond to petition on PG&E power plant pollution

The House Appropriations Committee’s subcommittee on Interior and Environment has released its draft spending bill for DOI and EPA, taking aim at both the EPA/Corps proposal to define waters of the United States and a couple of species of grouse being considered for ESA protection.

Interior could not spend any money on a final rule to list the Gunnison sage-grouse or on proposed rules to list the greater sage-grouse, the bill says. Nor could money be spent to make any changes to current Clean Water Act regulations on “waters of the U.S.”

The bill also would halt funding for the Fish and Wildlife Service’s Landscape Conservation Cooperatives, designed to address the impacts of climate change on ecosystems.

House Appropriations Cmte: Subcommittee markup of Interior and Environment FY 2015 spending bill

Petition on PG&E power plant should get a response

A federal judge issued a terse order directing EPA to “either grant or deny Wild Equity [Institute]’s petition by 10/17/14. Wild Equity may pursue summary judgment if the EPA has not acted on its petition by that date. The case is referred to Magistrate Judge Spero for a settlement conference to be held by 8/15/14, subject to his availability.”

The petition seeks action on pollution from PG&E’s Gateway power plant, near the Antioch Dunes, home to the endangered Lange’s metalmark butterfly.

News release

Jul 082014

Group wants to know why whistleblowing scientists haven’t gotten redress

Public Employees for Environmental Responsibility is suing the Fish and Wildlife Service to obtain documents about a scientific misconduct case that has dragged on for years.

PEER wants to know why FWS Director Dan Ashe has not released documents that might explain why the two managers who violated scientific integrity standards were not disciplined, while the scientists who blew the whistle on them were suspended without pay. Those employees continue to work at the service but have not received their back pay or had their records cleared.

The PEER news release, issued today, notes that a paper on the range of the American burying beetle, which was withdrawn for use by FWS in Section 7 consultations, continued to be posted by an online journal until the journal was contacted by ESWR. [Update: The paper is still online, despite a commitment by the publisher to remove it. We have sent another email inquiry to M. Ilyas Khan, Managing Editor of Bentham OPEN.]

Here is a story from the latest issue of ESWR on the misconduct.

For Immediate Release:  Tuesday, July 8, 2014
Contact:  Kirsten Stade (202) 265-7337


Records Show Why Director Did Not Act After Investigations Proved Misconduct

Washington, DC — The U.S. Fish & Wildlife Service is wrongfully withholding documents detailing why top agency officials refused to act on findings of scientific integrity reviews confirming serious scientific misconduct by agency managers, according to a federal lawsuit filed today by Public Employees for Environmental Responsibility (PEER). This stalemate signals that the vaunted new scientific integrity program inside FWS has broken down completely, apparently at the instigation of its Director Dan Ashe.

In spring of 2013, two separate panels found two managers of the FWS Oklahoma Ecological Services field office guilty of scientific misconduct in two separate cases.  Months followed without any action by FWS leadership.  Approximately one year ago on July 11, 2013, Deputy Interior Inspector General Mary Kendall issued an extraordinary public rebuke in the form of a Management Advisory stating:

“The Office of Inspector General (OIG) requests that immediate action be taken to address an unreasonable and inappropriate response regarding the discipline of two Fish and Wildlife Service (FWS) supervisors who engaged in scientific misconduct and apparently retaliated against three FWS employees in 2012. The failure to take timely and appropriate management action by FWS senior leadership, including Director Dan Ashe, damages the credibility and integrity of the Department of Interior (DOI) and the FWS Science Program as well as senior leadership.”

Besides Ashe, the OIG named Regional Director Benjamin Tuggle and Deputy Director Rowan Gould.  Days later, FWS issued a statement that it “is pursuing all appropriate disciplinary actions to address the matters raised in the Inspector General’s Management Advisory.”  Subsequent events, however, suggest that statement was untrue.  A year later, there is no sign of the “appropriate” actions promised by FWS:

  • The two guilty managers were not demoted or suspended.  Instead, they were kicked upstairs through prestigious details until they ultimately found other jobs.  One, Luke Bell, left to work for an oil company. Dixie Porter, the senior manager, eventually secured a high-level position with the U.S. Forest Service, although it is unclear if her new employer was apprised of the scientific integrity review findings about her deliberate misconduct;
  • The three whistleblowing scientists who suffered a series of unpaid suspensions and other punishments have yet to get FWS to agree to redress the career damage they suffered; and
  • FWS took no steps to withdraw a fraudulent paper cooked up by Porter and Bell to create a phony paper trail supporting their actions.  The journal moved to withdraw the paper only after being contacted by a journalist.

“The Service leadership is itself guilty of scientific misconduct in how it handled these findings,” stated PEER Executive Director Jeff Ruch. “Dissembling about its actions to ensure integrity speaks volumes.”

The scientific integrity report about the two cases came to light only after PEER pursued an appeal of their denial under the Freedom of Information Act.  Today these redacted reports can be seen only on the PEER website. The agency, however, continues to balk at turning over report exhibits and the communications from FWS leadership following those reports.  After it became clear that further appeals would not secure production, PEER filed suit in the U.S. District Court for the District of Columbia to force their release.

“How can official efforts to guarantee scientific integrity have any credibility if they are exercised only in secret?” Ruch asked, noting that the FWS never even made the reports available to the scientists who brought the complaints.  “Progress in protecting science from political interference requires that the courageous scientists who exposed this corruption are fully vindicated.”




Jul 072014

FWS plans to list the northern Mexican gartersnake and the narrow-headed gartersnake as threatened, according to a rule to be published in tomorrow’s Federal Register.

The species are native to Arizona and New Mexico. The service also is publishing a 4(d) rule that specifies measures needed to help conserve the northern Mexican gartersnake, which is also endemic to the Mexican states of Sonora, Chihuahua, Durango, Coahuila, Zacatecas, Guanajuato, Nayarit, Hidalgo, Jalisco, San Luis Potosí, Aguascalientes, Tlaxacala, Puebla, México, Veracruz, and Querétaro.

Also scheduled for publication in tomorrow’s FR: a notice announcing the initiation of five-year status reviews for 11 species.

Those species are the Gray bat (Myotis grisescens), Indiana bat (Myotis sodalis), Piping plover–GreatLakes breeding population (Charadrius melodus), Piping plover–Atlantic Coast and Northern Great Plains populations (Charadrius melodus), Scioto madtom (Noturus trautmani), Curtis’ Pearlymussel (Epioblasma florentina curtisi), Purple cat’s paw (Epioblasma (=dysnomia) obliquata obliquata), Scaleshell mussel (Leptodea leptodon), Higgins eye (Lampsilis higginsii), Pitcher’s thistle (Cirsium pitcheri), and Lakeside daisy (Hymenoxys herbacea (=H. acaulis var.glabra)).

See www.eswr.com/latest-listings for more FR notices.


Jul 072014

Climate change may not be so crippling to wildlife after all.

I got your speculation right here! (credit: Steve Kroschel)

Wolverine (credit: Steve Kroschel)

That’s one conclusion that could be drawn from a recent decision by a Fish and Wildlife Service Regional Director to withdraw a proposal to list the wolverine as threatened.

The Los Angeles Times‘ Louis Sahagun reported Saturday that the service was preparing the withdrawal of the proposed rule. Today,  the Center for Biological Diversity posted a memo from FWS Mountain-Prairie Regional Director Noreen Walsh, directing scientists to prepare a Federal Register notice withdrawing the proposal.

[Addendum: A final decision to withdraw the proposal has not been made yet by FWS Director Dan Ashe, Assistant Director for Endangered Species Gary Frazer told ESWR. "The decision document is still under development," he said July 7.]

CBD said the service was caving to state interests and ignoring science that supports the listing. Said the center in a news release:

On May 17, 2014, the assistant regional director of ecological services at the Fish and Wildlife Service sent a memo to the regional director in Denver transmitting the recommendation of the Montana field office that “the wolverine listing be finalized as threatened.” The memo further concludes that, “In our review we have been unable to obtain or evaluate any other peer reviewed literature or other bodies of evidence that would lead us to a different conclusion.”

In contrast, the recently leaked memo overrules and ignores the substantial evidence and conclusions of the proposed rule, the independent science panel report [see below], and the strong conclusions of the Montana field office, which is staffed with the agency scientists who have the greatest knowledge of wolverines.

CBD pointed out that Montana, Idaho and Wyoming had all opposed the listing, submitting comments that raised questions about the extent to which wolverines are dependent on snow for habitat. In her memo, Walsh took pains to say that the decision to withdraw the proposal was hers alone, and was not influenced by conversations with state officials. “I emphasize that while state agencies are our primary partners in conservation, the determination I have come to as stated in this memo about the wolverine’s status under the Endangered Species Act is mine alone, and has not been influenced in any way by a state representative.”

She also said that two other regional directors, who oversee regions containing wolverine habitat, agreed with her.

Because of the scientific disagreements, FWS convened an expert panel to take a closer look. It released its report in April.

————  More  ————

From proposed rule, Feb. 4, 2013:

“Due to dependence of wolverines on deep snow that persists into late spring both for successful reproduction and for year-round habitat, and their restricted distribution to areas that maintain significant snow late into the spring season, we conclude that deep snow maintained through the denning period is required for wolverines to [[Page 7875]] successfully live and reproduce. Reduction of this habitat feature would proportionally reduce wolverine habitat, or to an even greater extent if habitat reduction involved increasing fragmentation.”

“[B]ased on our current knowledge of occupied wolverine habitat and wolverine densities in this habitat, it is reasonable to estimate that the wolverine population in the contiguous United States numbers approximately 250 to 300 individuals (Inman 2010b, pers. comm.). The bulk of the current population occurs in the northern Rocky Mountains, with a few individuals in the North Cascades and one known individual each in the Sierra Nevada and southern Rocky Mountains.”

From Walsh memo, May 30, 2014:

“Since I do not accept the underlying premise that climate change is in fact a threat to wolverine, I also do not believe that the identified secondary threats are threats to the species. As I do not accept the conclusions that wolverine populations will decline in the foreseeable future due to habitat loss associated with climate change, I do not believe the genetic and demographic effects will be realized.”

“Since the proposed rule was published, Inman et al. (2013) published estimated available habitat capacity to be approximately 644 wolverines (95% CI = 506-1881) and estimated that current population size is currently approximately half of capacity.”

L.A. Times story by Louis Sahagun (7/6/2014)

Jul 022014
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Scalloped hammerhead (Credit: NOAA)

Here’s the listing, to publish in tomorrow’s Federal Register.

Summary from the final rule:

“In response to a petition submitted by WildEarth Guardians and Friends of Animals, we, NMFS, are issuing a final determination to list the Central and Southwest (SW) Atlantic Distinct Population Segment (DPS) and the Indo-West Pacific DPS of scalloped hammerhead shark (Sphyrna lewini) as threatened species under the Endangered Species Act (ESA). We are also issuing a final determination to list the Eastern Atlantic DPS and Eastern Pacific DPS of scalloped hammerhead sharks as endangered species under the ESA. We intend to consider critical habitat for the Central & SW Atlantic, Indo-West Pacific, and Eastern Pacific DPSs in a separate rulemaking.”


NMFS scalloped hammerhead shark page

NMFS Office of Protected Resources T&E species page

Announcement of proposed rule (4/4/2013) | Rulemaking docket


Click for a larger version of this map