Weekly Newsletter – 10/30/15

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Weekly Newsletter – 10/30/15

Issues

Sagebrush restoration guide released. This week, the U.S. Geological Survey (USGS) released the first of three restoration guides for sagebrush habitat in the western United States, with a focus on restoring habitat for the greater sage-grouse. The guide details tools for restoring land impacted by habitat fragmentation and wildfire and controlling the spread of invasive grasses, including cheatgrass, medusahead and red brome.

According to the report, “restoration is likely to be most successful once we understand the parts of the ecosystem that are resilient to disturbances and are resistant to invasive plant dominance. By dividing lands into these components, we can anticipate where available resources for active restoration can achieve the greatest success, and also understand where mere management changes (passive restoration) may elicit desired responses.” The report is the first of three expected from USGS, including one focused on decisions related to restoration of the sagebrush landscape and one on site-specific restoration. Read the full report HERE.

Bat Week prompts increased attention on NLEB. In honor of this week’s Bat Week, new attention was paid to the northern long-eared bat and other bat species as organizations sought to increase attention and education around the animal across the globe.  The Interior Department released a new video highlighting conservation efforts and challenges facing bat populations today, while other groups supported an effort to set a world record for the number of bat houses built in a single day.

Interior’s principal deputy assistant secretary for Fish and Wildlife and Parks Michael Bean also spoke about the current threatened listing for the northern long-eared bat. Mr. Bean noted in E&E News (sub req’d) that efforts to remove the threatened listing are unlikely to move forward, stating that while “there certainly is interest, on the part of Congress and others, because of the potential ramifications of that listing for a variety of interests, forestry among them” efforts to remove the listing altogether would likely be unsuccessful.

For background, the Fish and Wildlife Service listed the northern long-eared bat as threatened under the Endangered Species Act (ESA) in April 2015, followed by an interim 4(d) rule to allow for flexibility in implementation of the rule. A final 4(d) rule is expected by the end of 2015. Throughout the decision making process, IPAA joined with numerous other industry groups to urge Fish and Wildlife not to list the species and requested that all oil and gas development activities be exempted from the prohibition against incidental take given that oil and gas development activities do not pose a significant threat to the existence of the bat. Learn more about the northern long-eared bat on IPAA’s species page HERE.

Circuit split in Migratory Bird Treaty Act under close watch. A current circuit split around the theory of unintentional take under the 1918 Migratory Bird Treaty Act (MBTA) continues to be closely watched by stakeholders across the country. As IPAA has highlighted on ESA Watch, the Fifth Circuit recently rejected the United States’ theory of unintentional take, reversing a Citgo Petroleum Corporation’s conviction related to proposed violations of Act. The circuit found that birds killed in a refinery’s oil-water separator is not a violation of the Act, a decision in agreement with the Eighth and Ninth Circuits, both of which have limited takes to hunting and poaching activities and deliberate, intentional acts to migratory birds. Meanwhile, as Law 360 reports, the Second and Tenth Circuits “have read the MBTA broadly” and “hold that because the MBTA imposes strict liability, it must forbid acts that accidentally or indirectly kill birds.”

As highlighted in High Country News this week, Marten Law attorney Svend Brandt-Erichsen believes the decision from the Fifth Circuit is correct, noting that “the MBTA is an older statute; it was adopted to address poaching and hunting practices affecting migratory birds, long before the concept of regulating the incidental impacts of lawful activity. If it applies to human activity regardless of intent, then where do you draw the line?” Meanwhile Eric Glitzenstein, an attorney for the American Bird Conservancy, disagrees and instead suggests industry use MBTA as a way to implement workable measures that ultimately avoid an ESA listing. As he states, “If you impose the ESA, then you’re really talking about imposing extremely tight measures. Under the MBTA, industry can work with the government with reasonable measures.”

In May, Fish and Wildlife released a notice of intent to prepare a programmatic environmental impact statement to evaluate the impacts of allowing incidental take of migratory birds under MBTA. As E&E News (sub req’d) explains, the decision would put in place a legal framework to permit the taking of birds in certain industrial activities, with the assumption that companies are liable for unintentionally killing migratory birds. Under the current court split, however, the Fifth, Eight, and Ninth circuits have found takes under MBTA only apply to deliberate acts.

In the News

Calif. project seeks 5-year eagle ‘take’ permit. E&E News (sub req’d). The Fish and Wildlife Service is considering whether to allow a California wind farm to incidentally kill up to three federally protected golden eagles over the next five years. The permit would require NRG Yield Inc., which owns the 153-megawatt Alta East Wind Project in Kern County, to retrofit at least 74 area power poles within a year to prevent electrocutions of birds and take other steps to reduce mortality. While the Bald and Golden Eagle Protection Act makes it illegal to kill or harm either eagle species, a 2009 rule issued by FWS allows companies to obtain five-year take permits if they agree to avoid and mitigate harm.

Bats endangered, not a danger in Connecticut. WFSB. The Department of Energy and Environmental Protection said in less than eight years, white-nose syndrome has killed thousands of Connecticut bats. WNS has spread to hibernation sites in 26 states, leaving a trail of ecological havoc in its wake, DEEP said. A number of local species have been affected, three of which were recently listed as endangered in Connecticut. The little brown bat, northern long-eared bat and the tri-colored bat are on the list. The eastern small-footed bat was up-listed from special concern to endangered.

To ‘negotiate’ with feds, you have to speak their language. Elko Daily Free Press (Column). This past week the Nevada governor stood virtually alone in rebuking Attorney General Adam Laxalt for joining in a lawsuit seeking to block Interior Department plans to enforce draconian land use restrictions to protect the vast habitat of the greater sage grouse across 11 Western states. Laxalt is speaking the Interior Department’s language. These Washington bureaucrats live by sue and settle. That’s how we got the September deadline for listing grouse as endangered or not — a settled lawsuit from self-styled conservation groups.

Saratoga sage grouse get extra protection. Saratoga Sun. Jesse Mendoza, of Boy Scout Troop No. 152 in Rawlins, recruited the Bureau of Land Management (BLM) for his Eagle Scout project. Mendoza’s project involved the help of BLM wildlife biologist Mary Read in order to install reflectors for sage grouse. The importance of the project, Mendoza explained to the group of 12-14 people that joined him, was to keep the sage grouse from flying into fences on ranch land, which can kill them.

Despite EPA, Texans can ‘whoop’ with joy at whooping cranes return. Breitbart (Op-Ed). October heralds the return of the endangered Whooping Crane to Texas.  Once close to extinction, this federally endangered flock has slowly continued to grow in size and is now close to 300 birds. Unbeknownst to the Whooping Crane, this past May, seven years of litigation over water rights and the Whooping Crane habitat finally wrapped up in the Supreme Court. In Aransas Project v. Shaw an Endangered Species Act (ESA) claim had been directed at the Texas Commission on Environmental Quality’s (TCEQ) allocation of water rights.

New rule in Wyoming seeks to encourage ferret reintroduction. Associated Press. A new rule will seek to make Wyoming landowners less fearful about the legal implications of having endangered black-footed ferrets on their property, the U.S. Fish and Wildlife Service and Wyoming Game and Fish Department announced Thursday. Under an Endangered Species Act provision to be applied to the entire state, landowners who allow reintroduction of black-footed ferrets on their property would not face legal liability if they ever inadvertently harmed a ferret on their land. The goal of classifying ferrets statewide as an “experimental, non-essential” population is to encourage landowner participation in ferret reintroduction efforts.

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