Tag: Endangered Species Act

Eastern District of California Upholds Biological Opinion for Yuba River Dams Against Federal Endangered Species Act Challenge

On February 22, 2018, the U.S. District Court, Eastern District of California, issued a detailed written decision in Friends of the River v. National Marine Fisheries Service (E.D.Cal. 2018) 293 F.Supp.3d 1151, upholding the 2014 Biological Opinion (BiOp) and Letter of Concurrence adopted by the National Marine Fisheries Service (NMFS) under the federal Endangered Species Act (ESA) for the U.S. Army Corps of Engineers’ (Corps’) activities at the Daguerre Point and Englebright Dams on the Yuba River. RMM attorneys Howard “Chip” Wilkins, Laura Harris, and Elizabeth Sarine represented the defendant-intervenor Yuba County Water Agency (YCWA) in the matter.

The case is part of a long-standing dispute over whether the Corps’ ongoing activities at Daguerre Point Dam and Englebright Dam jeopardize the survival and recovery of three ESA-listed species or adversely modify their critical habitat. The primary purpose of both Daguerre Point Dam and Englebright Dam is to retain hydraulic mining debris. Both dams were constructed prior to Congress’ enactment of ESA.

In 2012, the Corps prepared a biological assessment (BA) as part of its ESA consultation for the Corps activities on Daguerre Point and Englebright. The 2012 BA excluded the future effects of the dams’ presence as part of the “agency action,” and instead posited that such effects should be included in the environmental baseline. The Corps made this determination on the basis that it did not have the authority to change the existence of the dams (e.g., the Corps had not authority to remove the dams). The 2012 BiOp issued by NMFS, however, concluded that the Corps’ activities—including those over which the BA stated the Corps had no discretion, such as the existence of the dams—were likely to jeopardize the listed species.

The Corps and YCWA had “serious concerns” regarding the 2012 BiOp and the Corps sought to reinitiate consultation. In 2013, the Corps reasserted its position that the dams’ continued existence was not an agency action because it was non-discretionary. The Corps also broke up what it had previously considered one “agency action” along the Yuba River into several parts, separating actions connected with the dams, and licensing.

In 2014, NMFS issued a “Letter of Concurrence” for the Englebright Dam, in which NMFS concurred with the Corps’ 2013 BA for that dam. NMFS agreed with the Corps that the Corps’ proposed action at Englebright was not likely to jeopardize listed species. NMFS also issued a new BiOp for Daguerre Point (2014 BiOp), also agreeing with the Corps that the Corps’ activities at Daguerre Point were not likely to jeopardize listed species.

Friends of the River (FOR) filed a lawsuit in the U.S. District Court, Eastern District, against NMFS and the Corps alleging the 2014 Letter of Concurrence and the 2012 BiOp violated Section 7 of ESA’s consultation requirements. FOR also alleged the Corps had violated Section 9 of ESA, which prohibits “take” of a listed species. YCWA moved to intervene as a defendant in the case, and the motion was granted. The court decided the case via motion and cross-motions for summary judgment.

At the heart of the dispute between FOR and the defendants was the question of whether the Corps and NMFS had properly defined the scope of the Corps’ actions on the Daguerre Point and Englebright Dams. In particular, FOR argued that the agencies violated ESA in excluding impacts arising from the existence of the dams from the agency action under consultation. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency action, was not arbitrary and capricious.

In particular, FOR argued to the District Court that the agencies violated the ESA in excluding impacts arising from the existence of the dams from the effects of the agency action. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency actions, was not arbitrary and capricious. The court also held: (1) NMFS consideration of voluntary conservation measures as part of the agency actions was not arbitrary or capricious; (2) the federal agencies were not required to include additional activities on the Yuba River as interrelated and interdependent actions in their evaluation of the agency actions; (3) federal defendants’ assessment of the action area was not arbitrary and capricious; (4) NMFS was under no duty to re-identify the agency actions defined by the Corps; (5) the conclusions that the Corps’ activities at the dams would not likely adversely affect listed species was not arbitrary and capricious; (6) NMFS adequately explained its change in position from the 2012 BiOp that took a different approach in defining the agency actions; (7) reinitiation of consultation was not required; and (8) the Corps could not be held liable under Section 9 for take caused by the existence of the dams because the Corps has no discretion over the dams’ existence.

The decision represents an important victory for YCWA and the federal defendants in the long-standing dispute concerning the Corps’ activities at Englebright and Daguerre Point Dams and their effects on listed species.

High Court Reverses Appellate Decision Limiting Use of Delisting Petitions under the California Endangered Species Act, But Avoids Reaching Merits of Fish and Game Commission’s Decision Denying Delisting Petition for Coho Salmon

On February 27, 2017, the California Supreme Court issued its unanimous opinion in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594, reversing an appellate decision holding that Plaintiff’s petition to delist coho salmon south of San Francisco from the register of endangered species was procedurally improper.

Background

In 1995, the Fish and Game Commission (Commission) listed coho salmon populations south of San Francisco as endangered under the California Endangered Species Act (CESA) (Fish and G. Code, § 2050 et seq.). In 2004, the Commission joined this population with coho Salmon north of San Francisco (to Punta Gorda in Humboldt County) as members of an “evolutionary significant unit.” That same year, Central Coast Forest Association and Big Lumber Creek Lumber Company (Plaintiffs) petitioned to delist coho salmon south of San Francisco Bay. The delisting petition argued that the coho salmon south of San Francisco had been artificially introduced into the area and have since then been maintained via hatcheries, and so are not “native” within the meaning of CESA. The Commission denied the petition.

The trial court found in favor of plaintiffs and the Commission appealed. In a 2–1 decision, the Third District Court of Appeal held that the petition to delist the endangered coho salmon under CESA failed for the procedural reason that, according to the Court of Appeal, CESA only authorizes delisting when a species is no longer endangered. Where, as in the case before it, plaintiffs challenge the original listing decision, they must do so via a mandamus action in state court. Based on this perceived procedural flaw, the Court of Appeal did not reach a decision on the merits of the case.

The Supreme Court granted review of the case in February 2013.

The Supreme Court’s Decision

The Supreme Court held that the Court of Appeal erred in concluding that a delisting petition is an improper vehicle for challenging an “original listing” decision of the Commission. The Court explained that no provision of CESA directly establishes that the Commission’s decision to delist cannot be based on new evidence showing that the listed species does not qualify for listing. Rather, CESA’s delisting mechanisms make clear that the delisting decision can be made “at any time based upon a petition or other data available to the [D]epartment and the [C]ommission.” (Fish and G. Code, § 2077, subd. (d).) Moreover, CESA includes requirements for the Department of Fish and Wildlife to make delisting recommendations based on the “best scientific information available,” reflecting a Legislative intent that the Commission’s decisions should evolve along with scientific understanding. Other provisions in CESA similarly suggest that the Commission has broad authority to reconsider its listing decision based on new information. The Court held, therefore, that the appellate court erred in holding that it is procedurally improper to use a delisting petition as a mean to challenge the Commission’s decision to list a species as endangered.

Although the Court had granted review of the question whether the delisting petition filed by plaintiffs for coho salmon contained sufficient information to warrant the Commission’s further consideration, the Court chose not to reach that question. Instead, given its reversal of the procedural ruling, the Court found it appropriate to remand the matter to the Court of Appeal to consider the unresolved issues on the merits in the first instance.

National Marine Fisheries Service Reverses Finding that CWA Streamlined Permitting Program Could Create Jeopardy Under ESA

In a newly issued Biological Opinion, the National Marine Fisheries Service (NMFS) has reversed its 2012 finding that the Clean Water Act’s (CWA) streamlined nationwide permitting program could result in jeopardy under the Endangered Species Act (ESA). Nationwide permits govern actions that have limited environmental impacts, and streamlining is intended to expedite the permitting process for those actions. In contrast, activities the Army Corps of Engineers (Corps) determines may discharge dredged or fill material into waters of the United States, but do not qualify for coverage under a nationwide permit, must be authorized under individual 404 permits.

NMFS emphasized that though streamlining of nationwide permits is now considered acceptable under the ESA, new measures promulgated by the Corps will ensure species are protected. These measures include amending notification requirements, holding semi-annual staff meetings, and improving tracking of the permits’ authorized activities. The Corps also plans to issue guidance specifying that regulated entities must report injuries or death of certain marine species listed under the ESA.

The Corps’ new rules will require pre-construction notifications for activities in jurisdictional waters where impervious surface materials will be used and where the waters are inhabited by listed species or are designated critical habitat under the species law. The Corps also plans to modify a nationwide permit covering utility lines and authorization of some oil and gas infrastructure. The oil and gas industry is concerned that the Biological Opinion might result in limitations on the permit, creating an impasse on new energy infrastructure.

Fish and Wildlife Commission Grants Emergency Petition to List the Tricolored Blackbird

The California Fish and Game Commission approved an emergency listing of the Tricolored Blackbird (agelaius tricolor) under the California Endangered Species Act at the Commission’s regular meeting on December 3, 2014. The Center for Biological Diversity filed the petition to list the Tricolored Blackbird with the Fish and Game Commission on October 8, 2014. The petition included a request for emergency action to protect the species.

The petition describes the Tricolored Blackbird as a nesting passerine largely endemic to California. The vast majority of the population occurs in the Central Valley and surrounding foothills. This bird is unique due to its formation of large nesting colonies (the largest of any North American passerine since the extinction of the Passenger Pigeon). A single colony site may include thousands of breeding pairs. The bird’s inclination to form vast nesting colonies makes the species particularly vulnerable to habitat destruction and human interference causing mass reproductive failures for the season. For example, large colonies will attempt to nest on active agricultural lands, and eggs and nests are then destroyed during harvest or weed abatement activities.

Audubon California, which supported the listing, cited a survey completed in the summer of 2014 which showed a 44 percent decline in the population of Tricolored Blackbirds since 2011. Over the last six years, the population has dropped 64 percent, to historic low numbers. The Commission found this and other evidence presented in the emergency petition compelling. The emergency petition allows six months of protection for the bird, at which time the emergency listing may be renewed for another six months. The Commission may consider a formal listing petition during this time.

The emergency petition and comment letters are available on the Commission’s website here.

Petition for Writ of Certiorari Submitted to the U.S. Supreme Court Contesting the Ninth Circuit’s Decision Upholding USFWS’s Biological Opinion on Delta Smelt

Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”

Second District Court of Appeal Holds EIR/EIS for the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan Complies with CEQA

In Center for Biological Diversity v. Department of Fish and Wildlife (Mar. 20, 2014) ___ Cal.App. ___, Case No. B245131, the Second Appellate District reversed the trial court judgment granting a petition for writ of mandate challenging the California Department of Fish and Wildlife’s (Department) approval of the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan. In the published portion of its opinion, the court held that the provisions of the Fish and Game Code supported a determination that live trapping and transplantation of a protected species of fish does not constitute an unlawful taking when undertaken by the Department for conservation purposes. The court also found the Environmental Impact Report’s analysis of cultural resources, alternatives, impacts to Steelhead smolt, and impacts to spineflower complied with CEQA.

The Newhall Land and Farming Company proposed an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003 and to be built out over a number of years. After the local county approved an environmental impact statement for the proposed development, the Department prepared and certified an EIR for the project—a Resource Management and Development Plan and Spineflower Conservation Plan. The EIR analyzed the potential environmental effects of issuing incidental take permits and a streambed alteration agreement under the project. The construction of the project would impact, among other things, the stickleback, a fish protected under Fish & Game Code §5515(a)(1) as a “fully protected species.”

The Center for Biological Diversity filed a petition for writ of mandate challenging the Department’s actions. The trial court granted the writ petition, finding, among other things, that the department failed to prevent the taking of the stickleback. The Department and the developer appealed. The court of appeal reversed, holding that the trial court erred in granting the petition.

The court found substantial evidence supported the Department’s conclusion that no take of the stickleback would occur. The court found that the EIR contained mitigation measures to exclude stickleback from any construction areas in the river and to trap and relocate any stranded stickleback to other parts of the river in temporary containers. The court found substantial evidence supported a determination that no mortality would occur given the extraordinary measures taken by the Department to ensure the sticklebacks’ safety, including undertaking surveys of stickleback habitat prior to developing its plan, preparation of ten different studies, and employing the expertise of one of the leading authorities on stickleback preservation. The extensive mitigation measures, coupled with the expert’s discussion, constituted substantial evidence no deaths would result.

The court also rejected CBD’s contention that the mitigation measures themselves would constitute a taking prohibited by Fish and Game Code §§86 and 5515(a)(1). Those sections defined a prohibited take as the “catch, capture, or kill” of protected fish. After a thorough review of pertinent sections of the code, along with their legislative histories, the court agreed with the Department and developer that the use of live trapping and transplantation techniques approved in Fish and Game Code §2061 would not constitute a prohibited take or possession. The court reasoned the entire statutory scheme must be construed together and section 2061 allows for live trapping and transplantation when performed for conservation purposes. Such techniques, as explained by the Department’s expert, can involve the possession and movement of the stickleback in containers to parts of the river that would not be impacted by construction. Therefore, the court concluded the mitigation measures would not result in an unlawful take or possession of stickleback.

The court also rejected CBD’s claims that the EIR failed to adequately address the cultural resources impacts of the project. As an initial matter, the court found CBD had forfeited its cultural resources claims by failing to raise such issues during the public comment period. As a result, the court held CBD failed to exhaust administrative remedies and Department had no obligation to respond to untimely comments. Though finding the claims waived, the court addressed these claims on the merits and rejected them, finding the cultural resource analysis was supported by substantial evidence. The analysis in the EIR was based on extensive research, surveys, and studies performed by consultants with expertise in the field. The consultants undertook excavations of areas that the research and studies indicated resources might be present. Furthermore, the court found there was no evidence that the consultant have failed to uncover any human remains. Though human remains had been found near the project site, the court found that those earlier, off-site discoveries did not require the Department to conduct additional plug tests on site to confirm the consultant’s conclusion. The court also upheld the cultural resources mitigation measures set forth in the EIR as adequate and in full compliance with CEQA Guidelines §15126.4(b)(3)(A).

The court rejected CBD’s claim that the Department’s determination regarding the feasibility of one of the alternatives was not supported by substantial evidence. The court found that, in general, the alternatives were appropriate because they were required to follow the Newhall Ranch Specific Plan. In considering the objectives of the specific plan, the alternative in question would not meet the project objectives to provide a new major community with industrial, commercial, and residential uses because the alternative lacked commercial uses in one planning area and had no connectivity to the easternmost portion of the project area. Furthermore, the alternative was economically infeasible based on application of an industry metric of the cost per developable acre compared to the proposed project. The court upheld this methodology and found substantial evidence supported the Department’s determination regarding the infeasibility of the alternative.

The court rejected CBD’s claims that the EIR failed to address the potential effects on steelhead smolt downstream of the project area due to dissolved copper discharges.  Again, the court found CBD had forfeited its claims for failing to raise them during the public comment period. Though waived, the court addressed the claims and found that there were no steelhead smolt in the project area because the habitat would be below the dry gap where the river goes underground. Furthermore, the dissolved copper discharged to the river would be below the California Toxics Rule Threshold with compliance with regulatory requirements and implementation of mitigation measures and design features. The court found substantial evidence supported the Department’s determination that the project’s impacts on steelhead smolt would be less than significant.

The court rejected CBD’s claims of flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location in Ventura County.  The Department issued an incidental take permit for spineflower, allowing take of 24% of the habitat within the Specific Plan area. The court found substantial evidence supported the mitigation plan for the spineflower. The Department had employed 43 biologists who conducted 21 surveys to identify the potential spineflower habitat. The Conservation Plan would dramatically expand the area for potential growth of the spineflower: from 13.88 acres of growth to 56.79 acres of core growth, 110.77 acres of buffer and 42.90 acres of expansion areas. The Plan would ultimately increase the preserve areas from two to five. The court also found that Department’s comprehensive monitoring plan did not constitute impermissible deferral of mitigation, but rather called for future research, which represented “sound ecological management.”

In an unpublished portion of the opinion, the court upheld the EIR’s greenhouse gas analysis. The Department employed a significance threshold for greenhouse gas emissions premised on the reduction target established under the California Global Warming Solutions Act (AB 32) where GHG emissions would be significant if the project would impede achievement of a reduction in statewide GHG emissions to 1990 levels by 2020.  The court held the Department had discretion to employ this threshold and concluded the threshold was appropriate.  The court found the GHG analysis complied with CEQA because it was consistent with the requirements for such analysis set forth in CEQA Guidelines §15064.4(b)(1)-(3) and was supported by substantial evidence.

USFWS Extends Eagle Take Permits to 30 Years

The U.S. Fish and Wildlife Service extended the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years. This means that renewable energy project developers – particularly wind project developers – can apply for permits that authorize recurring “take” (i.e., disturbance or killing) of eagles that is unavoidable even with mitigation. The rule eclipses the five-year limit on programmatic take permits instituted in 2009.

The act prohibits the “take” of bald and golden eagles, their nests, or eggs, unless allowed by permit; specifically, one cannot “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” the eagles without permission. Wind energy projects can result in accidental takes when eagles fly into the windmill blades. While most project developers implement measures to direct eagles away from the blades, such as by attracting the birds to reflective material above the blades and locating the projects in less-populated zones, some takes are unavoidable even with such mitigation.

Until now, many developers opted not to apply for programmatic take permits, given the inefficiency of the permit’s five-year duration compared to the decades-long timeframe of renewable energy project operations. Instead, developers would either apply for standard permits, which authorize individual takes, or not apply for any permits. The new regulations do not change the fact that project developers are not legally required to apply for take permits before proceeding with their projects. The downside to this approach, however, is that a developer faces civil and criminal penalties for unpermitted takes done “knowingly” or with “wanton disregard.”

Although the permits can now extend up to 30 years, the length of each permit will depend on the characteristics of the projects, such as the project’s duration and the projected impacts to eagles. Additionally, permits issued for longer than a five-year period will undergo evaluations every five years to assess fatality rates, conservation and mitigation effectiveness, and eagle population levels. Applicants for these longer permits are also required to commit to adaptive management, which involves system monitoring with the goal of continually understanding and improving a project’s effect on eagles.

The issuance of a take permit is a federal action requiring compliance with the National Environmental Policy Act, meaning applicants must prepare an environmental assessment or an environmental impact statement in order to obtain a permit. The rule went into effect on January 8, 2014.

Decision to List Polar Bear as Threatened Species under the Endangered Species Act Affirmed.

On March 1, 2013, the D.C. Circuit Court of Appeals upheld the listing of the polar bear as a threatened species under the federal Endangered Species Act.

The U.S. Fish and Wildlife Service listed the polar bear as threatened in 2008 because of shrinking sea-ice habitat. Industry groups challenged the listing determination under the Administrative Procedure Act’s “arbitrary and capricious” standard, arguing that the agency failed to establish a foreseeable extinction risk.  Environmental groups challenged the listing as insufficiently protective, arguing that the polar bear should be listed as endangered.

The District Court rejected all challenges on summary judgment, finding that the claims “amount to nothing more than competing views about policy and science” and therefore the agency receives deference.

The Court of Appeals emphasized that “a court is not to substitute its judgment for that of the agency”. The Court further noted, “The Listing Rule is the product of FWS’s careful and comprehensive study and analysis. Its scientific conclusions are amply supported by data and well within the mainstream on climate science and polar bear biology.”

The opinion is a win for both federal and state agencies that routinely base administrative decisions on scientific modeling and other complex data.