Federal
Endangered Species Act
Section
4(d) - Special Take Conditions
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.
B. NMFS Finalizes 4(d) Rules for Several Listed
Salmonids
Case Summary
Plaintiffs in this case challenged
NMFS’ promulgation of a regulation pursuant to section 4(d) of the ESA for
fourteen salmon species listed as threatened under that statute. Section 4(d) requires NMFS to promulgate
“such regulations as [it] deems necessary and advisable to provide for the
conservation” of each threatened species.
Section 4(d) also gives NMFS discretion to extend the take prohibition
to threatened species. The challenged
regulation extends the section 9 take prohibition to the fourteen species, but
contains thirteen exemptions from that prohibition. Plaintiffs challenged two of these exemptions.
The first challenged provision of the
rule exempts certain municipal, residential, commercial, and industrial
development (MCRI) from the take prohibition, provided that such development is
undertaken pursuant to an ordinance or plan that NMFS determines will
adequately provide for the conservation of the salmon. The 4(d) regulation establishes a process
for local governments to obtain approval of an MCRI plan, including a thirty
day public comment period on an MCRI plan, and twelve criteria for NMFS to
consider in determining whether such plans adequately conserve listed
salmonids. The 4(d) rule also requires
local governments with approved MCRI plans to submit annual reports to NMFS on
the implementation and effectiveness of the plans. The rule provides that NMFS will approve a plan if it
“contributes to the attainment and maintenance of” properly functioning habitat
conditions, as defined, and includes authority for NMFS to withdraw plan
approval if it does not continue to meet this standard.
The second challenged provision of the
4(d) rule exempts timber harvesting on non-federal lands undertaken in
compliance with the Washington forest practice regulations (FPRs), provided
that NMFS finds these regulations are “at least as protective of habitat
functions” as a report prepared by various stakeholders recommending
environmental protections for logging practices (the “Forest and Fish
Report”). NMFS also must review the
Washington FPRs to determine whether they are consistent with the conservation
of listed salmonids’ habitat by contributing to the attainment and maintenance
of PFC. The 4(d) rule provides for a
public comment period and authorizes NMFS to withdraw the exemption if NMFS
finds that the FPRs no longer meet the criteria of the 4(d) rule.
The court held that Counts I and III of
the complaint were not ripe for review.
Count I alleged that NMFS abused its authority in issuing take exemptions
that are not based on standards that will ensure the conservation of the
species, as required by section 4(d) of the ESA. Count III alleged that NMFS acted arbitrarily and capriciously in
adopting the FPR exemption because the authors of the Forest and Fish Report
did not rely on the best available science.
First, the court found, plaintiffs
would not suffer undue hardship from delayed review because the take
prohibition would remain in place unless and until NMFS approved an exemption
under the MCRI or FPR provisions. Second, the court stated, plaintiffs would be
able to challenge the exemptions in the context of a site-specific application
of the 4(d) rule, which could include a challenge to the lawfulness of the rule
itself. Finally, the court noted, the
4(d) rule is “far from the culmination of the agency’s decision making
process,” because NMFS could revise the rule to address plaintiffs’ concerns,
MCRI plans and FPR proposals could exceed plaintiffs’ expectations, or NMFS
could reject exemption plans and proposals.
Thus, the court concluded, judicial review at this stage “would have to
proceed with little factual development.”
However, the court found that Counts I,
IV and V of the complaint were ripe because these counts were not directed to
the substance of the rule itself, but rather were challenges to NMFS’ authority
to promulgate the rule in the first instance, and its alleged failure to comply
with the ESA and NEPA in doing so. The
court found these counts ripe because they involved questions of law (not
fact), and/or challenged the legal procedures NMFS used in adopting the 4(d)
rule.
Turning to the merits of the ripe
claims, the court first addressed plaintiffs’ claim that NMFS does not have
authority to create a limited take prohibition under section 4(d) because
sections 7 and 10 of the ESA provide the only statutory mechanisms for
authorizing take of listed species.
Federal entities are exempt from the section 9 take prohibition if they
obtain an ITS from NMFS or the FWS pursuant to section 7, and non-federal
entities are exempt from the take prohibition if they obtain an incidental take
permit pursuant to section 10. The
court rejected this argument, finding that, under the plain language of section
4(d), NMFS has broad discretion to promulgate such rules as it deems “necessary
and advisable.” Such rules may, but
need not, include a take prohibition.
Thus, the court reasoned, because NMFS may choose not to impose a take
prohibition at all, it necessarily has discretion to impose a limited take
prohibition that includes exemptions.
The court made clear that its decision was limited to NMFS general
authority to promulgate the rule under section 4(d), and did not address the
substance of the rule at all, which claim it had found to be unripe.
The court next addressed plaintiffs’
claim that NMFS violated NEPA by failing to prepare an EIS on the 4(d)
rule. Plaintiffs argued that NMFS
should have evaluated the substance of the MCRI and FPR exemptions in particular
rather than focusing on the effects of the rule as a whole. The court held that because an EIS on the
exemptions would necessarily be highly speculative, NMFS did not act
arbitrarily and capriciously in deciding that it was not required to prepare an
EIS on the rule. The court also held
that plaintiffs’ contention that NMFS would not prepare an EIS before approving
individual MCRI plans or the FPR program was not ripe because NMFS had not
entirely foreclosed the possibility of conducting further environmental review.
The court reasoned that, if NMFS
subsequently determined not to conduct environmental review of the MCRI plans
or the FPRs, plaintiffs could seek judicial review at that time. The court emphasized, however, that it was
not ruling on whether NMFS must prepare an EIS “or otherwise fully comply with
NEPA in the context of decisions on specific plans.”
Finally, the court addressed
plaintiffs’ claim that NMFS violated the ESA in failing to engage in formal
section 7 consultation on the 4(d) rule.
The parties did not dispute that NMFS’ promulgation of the final rule
was a “federal agency action” subject to section 7 consultation. However, NMFS had determined through
informal intra-agency consultation that the rule was not likely to adversely
affect listed species and therefore it had not engaged in formal
consultation. In holding that formal
consultation was not required, the court adopted the same reasoning it employed
regarding the NEPA claim. The court
held that NMFS’ decision to conduct informal consultation on the rule as a
whole, rather than focus on the specific effects of the MCRI and FPR
exemptions, was reasonable considering that an examination of the exemptions in
the absence of a particular plan would have been highly speculative. The court further held that plaintiffs’
challenge to NMFS “refusal to guarantee” future section 7 consultation on
individual plans and programs was not ripe.
Analysis
This case reflects the importance of
the ripeness doctrine in section 4(d) rule challenges. These rules often are general in nature and
their effects difficult to assess until applied in a specific factual
context. The result is perhaps a mixed
blessing for NMFS, since it means as a practical matter that ESA and NEPA
compliance issues now must be considered in connection with each application of
the rule, and that the section 4(d) rule probably cannot be employed to shield
future decision-making pursuant to the rule from subsequent ESA and NEPA
compliance. The case is also important
because it upholds NMFS’ general authority to enact a 4(d) rule which
authorizes some take of threatened species.
NMFS has extended its section 4(d) rule
to apply to additional anadromous salmon and steelhead populations on the west
coast. In addition to the Southern
Oregon/Northern California coast coho salmon, Central California coast coho and
steelhead salmon, South-Central California coast steelhead, Central California coast
steelhead, and Central Valley California steelhead, the rule now applies to
applies to Central Valley spring run chinook salmon, California coastal chinook
salmon, and Northern California steelhead.
The rule applies the section 9 take prohibition to these listed
salmonids. However, the rule includes
several important exceptions to this take prohibition, and authorizes take in
connection with:
(1) Activities specified in an application for an enhancement of
survival permit received on or before specified dates;
(2) Fish harvest and fish hatchery activities that meet certain
requirements;
(3) Habitat restoration activities[1]
undertaken pursuant to a “watershed conservation plan” that meets specified
requirements;
(4) Water diversions from lakes and streams that meet certain
requirements; and
(5) Municipal, residential, commercial and industrial activities
that meet specified requirements. 65
Fed. Reg. 42422 (July 10, 2000); 50 C.F.R. § 223.203(a), (b)(1)-(13); 67 Fed.
Reg. 1116 (Jan. 9, 2002); 50 C.F.R. § 223.204(b)(14)-(22).
[1] “Habitat restoration activities” are defined as activities the primary purpose of which is to restore natural aquatic or riparian habitat conditions or processes. “Primary purpose” means that the activity would not be carried out but for its restoration purpose. 50 C.F.R. § 223.203(b)(8)(iv). Section 223.204(a)(6) sets forth additional criteria for exempting habitat restoration activities from the take prohibition with respect to Southern Oregon/Northern California coast coho salmon.