Federal Endangered Species Act
Listing of Species
Digest of Recent Case Law
November,
2002
by
Tara L. Mueller, Esq.
Deputy Attorney General
California Office of the Attorney
General
Land Law Section, Oakland CA
The views herein expressed are
solely those of the author, and do not necessarily reflect the views of the
California Attorney General, the California Department of Justice, or any other
California state agency.
Determination
Whether to List.
Listing
of Distinct Population Segments.
Case Summary
In this case, the Ninth Circuit held
that the Services must determine both whether a petitioned listing may be
warranted, and whether a petitioned listing is in fact warranted, within one
year after their receipt of the petition.
The Biodiversity Legal Foundation and several other environmental
organizations sued the U.S. Fish and Wildlife Service (FWS) for failing to comply
with the listing deadlines for several species which plaintiffs had petitioned
to list as threatened or endangered.
The ESA contains two major deadlines
for the FWS (or the National Marine Fisheries Service - NMFS) to act on
petitions to list. First, “to the
maximum extent practicable,” within ninety days of receipt of a petition, the
FWS or NMFS must make an initial finding as to whether a petition presents
substantial information indicating that the petitioned action may be
warranted. 16 U.S.C. §
1533(b)(3)(A). Then, within twelve
months after receipt of a petition which is found to present substantial
information, the FWS or NMFS must determine whether the petitioned listing is
in fact warranted, in which case the agency must “promptly publish” a proposed
listing rule in the Federal Register.
16 U.S.C. § 1533(b)(3)(B). In
Oregon Natural Resources Council v. Kantor, 99 F.3d 334 (9th
Cir. 1996), the court held that the FWS and NMFS have discretion to extend the
period for making the initial, “may be warranted” finding beyond ninety
days. However, the court also held in Kantor
that the FWS and NMFS do not have discretion to extend the period for
making the second, “is warranted” finding beyond one year.
The question in this case was whether
the one year deadline necessarily placed a limit on the wildlife agencies’
discretion to extend the ninety day period for making the initial finding. The court answered this question in the
affirmative, rejecting the FWS’ argument that it could extend the initial
ninety day period indefinitely, even beyond one year. The court held that the FWS’ interpretation would render the one
year deadline inoperative, contrary to the basic canon of statutory
construction that a statute should be interpreted to give effect to all
sections of a statute. The court
reasoned that the only way to give effect to both deadline provisions is to
apply the one year deadline to both the initial and final determinations. The court explained that “[i]f the final
determination must be made within twelve months, the only logical conclusion is
that the initial one must be made within that time as well.”
In another significant portion of the
opinion, the Ninth Circuit held that the district court did not err in
determining that it was required to grant an injunction in this case. The court affirmed the district court’s
holdings that: when the FWS fails to comply with a statutorily mandated
deadline, it has unlawfully withheld agency action in violation of the
Administrative Procedure Act (APA), and the APA requires the court to issue an
injunction when the FWS misses a deadline under the ESA. The court reasoned that, when a federal
statute is violated, the test for determining whether injunctive relief is
appropriate is “whether an injunction is necessary to effectuate the
congressional purpose behind the statute.”
With respect to the ESA, the court stated, the U.S. Supreme Court had
already declared that effectuation of congressional intent requires the court
to issue an injunction when an agency has violated section 7 of that statute
(the federal agency consultation provision) [citing Tennessee Valley
Authority v. Hill, 437 U.S. 153 (1978)].
The Ninth Circuit likewise applied this
standard to violations of section 4 (the listing provision), reasoning that the
congressional purpose behind the ESA applies equally to both provisions of the
statute. It held that, in the context
of the ESA, Congress has foreclosed the traditional exercise of discretion
possessed by a court of equity by making it “abundantly clear that the balance
of equities” has already been struck in favor of affording endangered species
protection the “highest of priorities” [quoting TVA v. Hill, 437 U.S. at
194]. The court stated that, regardless
of whether the FWS has violated section 7 or section 4 of the ESA, “Congress
has established procedures to further its policy of protecting endangered
species. The substantive and procedural
provisions of the ESA are the means determined by Congress to assure adequate
protection. Only by requiring
substantial compliance with the Act’s procedures can we effectuate the intent
of the legislature” [quoting Sierra Club v. Marsh, 816 F.2d 1376, 1384
(9th Cir. 1987)].
Justice Graber dissented on grounds
that plaintiffs lacked standing and that the case was moot.
Analysis
The Biodiversity Legal Foundation
case is significant in at least two respects.
First, it removes any doubt that the FWS and NMFS must act on petitions
to list within one year of receipt. In
the Ninth Circuit, the Services no longer will be able to rely on the
discretion afforded by the “maximum extent practicable” language in the
initial, ninety day finding provision of the ESA to allow listing petitions to
languish indefinitely. Second, the case
reaffirms the continuing validity of the U.S. Supreme Court’s landmark holding
in TVA v. Hill and expressly applies that holding to the listing
provisions of the ESA. The court’s
reasoning, however, is even more broadly applicable than that and could easily
be extended to all other sections of the ESA, and to all would-be violators of
the ESA, whether they be agency or private defendants. Thus, it will now be difficult, at least in
the Ninth Circuit, for defendants to argue that the district court has
discretion to refrain from granting an injunction if the court finds a
procedural or substantive violation of the ESA.
Case Summary
In this case, the Ninth Circuit held
that the Services must explain whether a species is endangered or threatened in
a significant portion of its range, even if it is currently protected in other
portions of its range. Plaintiffs,
Defenders of Wildlife and several other environmental groups, challenged the
FWS’ determination not to list the flat tailed horned lizard as a threatened
species under the ESA. Defenders argued
that this decision was arbitrary and capricious because at least four of the
five statutory listing factors indicated that listing was warranted. The FWS agreed that the evidence established
that the lizard was threatened on private lands, but contended that: (1)
adequate habitat existed on public lands to support the species and (2) a
candidate conservation agreement (CCA) signed by a group of federal and state
agencies would protect the species across its range. The CCA established five management areas subject to various
protective measures, some of which had been in place for years prior to the
FWS’ listing determination.
The Ninth Circuit rejected both of the
FWS’ arguments. The Court’s reasoning
turned upon its interpretation of the definition of a threatened species. A threatened species is one that is likely
to become endangered within the foreseeable future “throughout all or a
significant portion of its range.” 16
U.S.C. § 1523(20). Similarly, an
endangered species is one that is “in danger of extinction throughout all or a
significant portion of its range.” 16
U.S.C. § 1532(6). Defenders argued that
the lizard was threatened with extinction because private lands constituted a
significant portion of its range. While
the Court agreed with this premise, it rejected both the FWS’ and Defenders’
interpretation of the phrase “significant portion of [a species’] range.” The Court held that a species is endangered
throughout a significant portion of its range “if there are major geographical
areas in which it is no longer viable but once was.” These areas may, but need not, coincide with national or state
political boundaries. In addition,
while the FWS has a “wide degree” of discretion in delineating a “significant
portion of a species’ range,” where it is apparent that the area in which the
species is expected to survive is much smaller than its historic range, the FWS
must explain its conclusion that the area in which the species can no longer
live is not a significant portion of the range.
Here, the FWS had not addressed the
question whether private lands constituted a significant portion of the
lizard’s range, nor did the FWS “address the lizard’s viability in a
site-specific manner with regard to the putative benefits” of the CCA. For example, the FWS did not address the
fact that three of the five management areas had not yet been designated, nor
did it address how the purported benefits of the CCA would affect specific
portions of the lizard’s habitat or mitigate particular threats to the lizard.
Analysis
This case serves as an important
reminder of the independent meaning of the phrase “significant portion of [the
species’] range,” and the fact that a species need not be endangered or
threatened throughout its range in order to meet the test for listing. The case also reaffirms the courts’
unwillingness to consider speculative and prospective conservation measures in
CCAs and other pre-listing agreements as a substitute for listing, and is the
first appellate court decision to so hold.
Compare Fed’n of Fly Fishers v. Daley, 131 F. Supp. 2d 1158 (N.D.
Cal. 2001); Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d
1139 (D.Or. 1998); Save Our Springs v. Babbitt, 27 F. Supp. 2d 739 (W.D.
TX 1997); Friends of the Wild Swan v. FWS, 945 F. Supp.1388 (D.Or.
1996); Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D.D.C.
1996); Southwest Center for Biological Diversity v. Babbitt, 939 F.
Supp. 49 (D.D.C. 1996).
Plaintiffs challenged the FWS’ “not
warranted” finding with respect to listing of the Queen Charlotte goshawk. The FWS found that, because a 1997 land and
resources management plan (LRMP) for the Tongass National Forest protected 75%
of the “original productive old growth forest” (the goshawk’s primary habitat),
there would be sufficient habitat “to ensure that goshawks will persist in
well-distributed local populations in southeast Alaska.” The District Court referred the parties’
cross motions for summary judgment to a magistrate judge for a report and
recommendation. In their motion for
summary judgment, plaintiffs advanced two primary arguments: (1) listing of the
goshawk is warranted based on its status in southeast Alaska; and (2) listing
is warranted because it is threatened in British Columbia as a whole and
Vancouver Island in particular.
The judge first considered whether the
FWS had relied on the best scientific data available. On the one hand, the judge stated, this standard “prevents FWS
from manipulating its analysis by unreasonably relying on certain sources to
the exclusion of others.” On the other
hand, the best scientific data available requirement “does not mean that
relatively minor flaws in scientific data render that information
unreliable.” Additionally, the FWS
“must rely on even inconclusive or uncertain information if that is the best
available at the time of the listing decision.” The FWS cannot be required to compile new information. Citing Southwest Center for Biological
Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000). Thus, plaintiff’s criticism that the
evidence the FWS relied on was insufficient because it was “inconclusive” was
not well taken.
The judge also rejected plaintiff’s
contention that the FWS improperly relied on a “speculative regulatory
mechanism” in basing its not warranted decision on the 1997 Tongass LRMP. Plaintiff asserted that, although the 1997
LRMP was in effect, it was still speculative because its regulatory mechanisms
might not be effective in protecting the goshawk from extinction. The judge noted that “no regulatory
mechanism would meet plaintiff’s high bar, for there is always a possibility
that objectives will not be achieved.”
In the judge’s view, the critical question was whether the regulations are
“concrete and specific enough” to ensure that they will be implemented, and the
LRMP clearly met this standard.
The judge also dismissed the argument
that the FWS’ failure to consider a 1997 field study was a material
omission. Although the study reported
finding far fewer active goshawk nests in 1996 than in the prior two years,
fewer research hours were spent attempting to locate the nests. Therefore, the judge concluded, “it would be
surprising indeed if the researchers had not found fewer nests, given the
sharply reduced research effort.”
Turning to the merits of plaintiff’s
complaint, the judge addressed plaintiff’s assertion that the evidence
warranted an immediate listing of the goshawk in southeast Alaska. After a detailed discussion of the
scientific evidence relied on by both parties, the judge concluded that, at
bottom, plaintiff’s argument was based entirely on a scientific disagreement
with the FWS. Plaintiff pointed to no
material information that the FWS had failed to consider, and had not
identified any independent biologist who “flatly disagree[d]” with the FWS’
expert panel’s conclusions. Thus, the
judge concluded, “[f]or me to agree with plaintiff’s arguments would be to
accept their interpretation of the data on this highly technical matter over
the unanimous opinion of five goshawk experts,” which would be inconsistent
with the principle of agency deference.
The judge then addressed the contention
that listing was warranted in British Columbia as a whole, which comprises approximately
one half of the species’ range, and Vancouver Island in particular, which
constitutes one third of the species’ range.
The judge first concluded that the ESA permitted a species to be listed
only in a foreign country, relying on the findings and declarations and listing
provisions of the ESA, as well as the Ninth Circuit’s decision in Defenders
of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).
The judge then upheld the FWS’ finding
that listing was not warranted in British Columbia based on its conclusion that
65% of the productive old growth forest would be protected from logging. The judge did not believe that the FWS had
ignored the findings of the expert panel, despite the fact that a majority of
the panelists had concluded that it was more likely than not that the goshawk
was threatened with extinction in British Columbia. The judge felt that the panelists’ conclusions were not
conclusive enough to render the FWS’ decision unreasonable in light of the
overt lack of reliable information on timber management practices in British
Columbia.
However, the judge reached a different
conclusion with respect to listing on Vancouver Island. The judge first found that Vancouver Island
was a significant portion of the goshawk’s range because it contained one third
of the species’ remaining geographic range, as well as a relatively large
amount of suitable goshawk habitat (79% of the original productive old growth
forest in non-mainland British Columbia).
The judge then recommended that the case be remanded to the FWS for a
finding as to whether listing was warranted on Vancouver Island. The FWS had not previously made a finding as
to whether the goshawk is likely to become extinct in this region. The judge also found that any “questions
surrounding the implications of listing based solely on the goshawk’s
threatened or endangered status on Vancouver Island are not yet ripe.”
Case Summary
The court in this case held that NMFS’ decision to
list only naturally spawned (wild) coho salmon and to exclude hatchery fish from
the listed ESU was arbitrary and capricious.
Plaintiffs, a coalition of landowners, challenged the validity of NMFS’
decision to list the Oregon coho.
Although NMFS had included all nine populations of hatchery fish within
the Oregon coast “evolutionary significant unit” (ESU - e.g. distinct
population segment of anadromous fish), it had listed only the naturally
spawned coho in this region. NMFS excluded the hatchery fish based on its
determination that such fish were not essential to the recovery of the
naturally spawned fish. Plaintiffs
argued that the listing decision was invalid because the ESA does not permit
NMFS to list populations below that of a “distinct population segment” (DPS). Instead, plaintiffs contended, NMFS must
list all members of a DPS. The court
agreed, noting that Congress did not authorize listing distinctions below that
of DPS.
NMFS considers a population to be an
ESU, and hence a DPS eligible for listing, if it: (1) is “substantially
reproductively isolated from other conspecific population units”; and (2)
“represents an important component in the evolutionary legacy of the
species.” The court held that, while
this was a permissible agency construction of the ESA, NMFS listing determination with regard to the Oregon coho was arbitrary
and capricious because it excluded the hatchery populations from listing even
though NMFS had determined them to be part of the same DPS as the naturally
spawned coho. Once NMFS made the
determination that hatchery fish were part of the same DPS, the court held, it
was required to either include or exclude all members of the DPS from listing.
The court acknowledged that NMFS’
listing decision “could arguably be proper under the ESA if NMFS had defined
‘hatchery spawned’ coho as a separate DPS.”
However, the court stated in dicta that it did not believe that this was
possible because hatchery and naturally spawned coho share the same habitat and
seasonal runs, both types of fish interbreed when mature, hatchery fish account
for up to 87% of the naturally spawning coho on the Oregon coast, and NMFS
considers progeny of hatchery fish born in the wild to be naturally spawned
coho. The court rejected NMFS’ argument
that its listing decision was consistent with the ESA’s emphasis on protecting
natural species populations and genetic diversity of those populations. The court agreed that while genetic
diversity is one of the many underlying goals of the ESA, “genetics cannot, by
itself, justify a listing distinction that runs contrary to the definition of
DPS.”
Analysis
If upheld on appeal, the court’s reasoning could affect the
listing of numerous ESUs on the Pacific coast where NMFS has made similar
distinctions between naturally spawned and hatchery fish. In fact, in response to the court’s ruling,
NMFS is currently re-evaluating 25 ESUs of Pacific coast salmon and steelhead
and will promulgate a new policy on the role of hatchery fish in listing
decisions in September 2002. NMFS
stated that, while the court’s ruling only directly affected one salmon ESU,
“the interpretive issue raised by the ruling has the potential to affect nearly
all of the agency’s west coast salmon and steelhead listing determinations made
to date.” 67 Fed. Reg. 6215 (Feb. 11,
2002).
NMFS’ options include (1) delisting
certain ESUs altogether; (2) including hatchery fish within the listed ESU; or
(3) re-defining the ESU to include only the wild fish populations. At this point, it is unclear what direction
NMFS will take. NMFS recently made a
ninety day “may be warranted” finding on a petition to delist the Central
California coast coho in light of the court’s ruling in Alsea. 67 Fed. Reg. 48601 (July 25, 2002). At the same time, it found that a petition
submitted by several environmental and fishing organizations to redefine 15
ESUs to include only naturally spawned coho also may be warranted. Id. A decision to delist a salmon or
steelhead ESU based on the inclusion of hatchery fish in the population would
be problematic in light of the documented threats hatchery fish pose to the
genetic stock of naturally spawned fish.
In the American Wildlands case, discussed below, the D.C.
District Court recognized genetic hybridization of wild fish populations as a
distinct threat potentially justifying listing of such populations.
In September 2002, NMFS is expected to
circulate for public comment a draft revised policy regarding the relationship
between hatchery and wild fish populations.
A pre-publication draft released to the press requires protection of
natural, self-sustaining fish populations.
Case Summary
In this case, five environmental groups
challenged the FWS’ determination that listing of the westslope cutthroat trout
was “not warranted” under the ESA.
Plaintiffs argued that the FWS’ determination was arbitrary and
capricious because, among other things, the FWS included hybrid fish within the
trout population being considered for listing, even though the agency had
acknowledged that hybrid trout were a primary a threat to the wild trout.
After holding that the plaintiff
organizations had procedural standing to challenge the FWS’ “not warranted”
determination, the court granted plaintiffs’ motion for summary judgment and
remanded the matter to the FWS with instructions to reconsider its “not
warranted” finding in light of the court’s decision. The court first found that the FWS had failed to adequately
consider whether the threat of hybridization was sufficient to warrant listing
of the trout. Although the agency had
identified hybridization as an ongoing threat in each of the 15 watersheds
occupied by the trout, the court found the record “devoid of any evidence that
the agency evaluated the threat in considering whether the [trout] population
was viable.”
The court held that the FWS’ decision
not to list the trout was arbitrary not because the agency failed to consider
hybridization a threat, but because, once the agency identified hybridization
as a threat, it included the hybrid fish within the population it considered
for listing. The FWS did so without
first determining what degree of hybridization likely would cause the wild
cutthroat to become endangered or threatened through all or a significant
portion of its range. The court stated
that “[i]f hybridization is a threat to the species, it would seem logical that
hybrid stock should not be included in the population of [trout] reviewed for
protected status.”
The court rejected the FWS’ explanation
that hybrid stocks were included within the population because few of the
remaining trout stocks had been genetically classified. Although the court did not require the FWS
to consider only “genetically pure” stocks of fish, it held that the agency was
required to rely on the best available science in identifying the appropriate
trout population. However, in this
case, the FWS had not offered any scientifically based explanation for
its decision to include hybrid stocks within the population. The FWS did not explain how hybridized fish
might contribute to the viability of the species, nor did it contend that some
degree of hybridization is benign.
The FWS also failed to consider
Montana’s assessment of hybrid stocks, which distinguished among pure,
"slightly hybridized" (90% or more pure), and other hybridized
cutthroat. Second, as indicated above,
the FWS did not even attempt to reconcile its recognition of hybridization as a
threat to the trout’s overall viability with its inclusion of hybrid stock in
the population considered for listing.
Therefore, the court concluded, the FWS failed to rely on the best
available science in making its listing determination, as required by the ESA,
and failed to consider an important aspect of the problem, as required by the
Administrative Procedures Act. The
administrative record, in short, was devoid of any "reasoned
explanation" for "the inclusion of hybrid fish in the population
evaluated for protection."
The court also briefly addressed
plaintiffs’ remaining contentions that the FWS overstated the protections
afforded by existing regulations and did not adequately consider threats to
isolated headwater populations of trout.
The court found that the FWS’ analysis of these factors could be
affected by its initial determination of the size and distribution of the trout
population, and were therefore important factors for the FWS to consider on
remand. Thus, the court held that,
having identified hybridization as a threat to the trout, it should have
identified whether existing regulatory mechanisms were adequate to protect a
viable trout population. The court
directed the agency to consider the effect of existing programs (such as
non-native fish stocking) “in light of the population evaluated for
listing.” Similarly, the court held
that because the FWS’ identification of the appropriate population for listing
“may affect its evaluation of the risks to headwater populations,” this factor
also must be reevaluated on remand.
Analysis
This case could have important
implications for NMFS’ reevaluation of its determination to list 26 populations
of west coast salmon in light of the U.S. District Court’s ruling in Alsea
Valley Alliance v. NMFS, 161 F. Supp. 2d 1154 (D. Or. 2001) (discussed
above). In that case, the U.S. District
Court in Oregon held that NMFS’ decision to list only the wild fish, while
including the hatchery fish in the distinct population segment, was arbitrary
and capricious. This case is now on
appeal to the Ninth Circuit and involves the proper interpretation of the term
“distinct population segment” under the ESA.
The court’s reasoning in American Wildlands may cast doubt on
NMFS’ determination to include hatchery fish within the same population as wild
salmon, since hatchery fish likewise pose a serious threat to wild salmon
populations. In any case, both
decisions require the agency, which is now reconsidering its salmon hatchery
policy and its listing determinations for most of the west coast salmon
species, to make difficult scientific decisions concerning what constitutes the
appropriate fish population for listing purposes.