Weekly Newsletter |July 5, 2019
Issues
IPAA files comments as FWS weighs burying beetle downlisting. In May, the Fish and Wildlife Service (FWS) proposed easing protections for the American Burying Beetle, downlisting it to threatened from endangered under the Endangered Species Act (ESA). The Independent Petroleum Association of America (IPAA) submitted comments in response to the proposal, praising the action.
In the submission, IPAA’s Senior Vice President of Government Relations and Political Affairs Dan Naatz notes, “there is no evidence that the Beetle is currently in danger of extinction across all or a significant portion of its contemporary range” and that the original listing was found in error, creating economic costs and delays for Oklahoma and the region. From the comments:
“In Oklahoma alone, the Beetle has cost $6.5 million in protection efforts over the past 20 years, including $1.3 million expended by the Oklahoma Department of Transportation on conservation actions within a 6-year period. The erroneous listing of the Beetle has caused delays of essential road and bridge projects and costs Oklahoma taxpayers significant amounts of public funds that could be otherwise allocated.”
IPAA’s comments also point to current data showing the Beetle’s range “has grown in recent decades due in part to increased survey efforts as well as implementation of successful captive breeding and reintroduction programs.”
In 2015, groups including IPAA and the Texas Public Policy Foundation petitioned FWS to delist the beetle. Two years later, IPAA et al. filed a lawsuit against FWS, arguing the agency had dragged its feet in considering the petition. The 2015 petition included a report conducted by SWCA Environmental Consultants that explores the data cited in IPAA’s comments.
New rules will challenge lesser prairie chicken litigation, other lawsuits citing climate change effects. Three environmental groups, the Defenders of Wildlife, Center for Biological Diversity, and WildEarth Guardians, filed a lawsuit in mid-June against Secretary of the Interior (DOI) David Bernhardt and the U.S. Fish and Wildlife Service (FWS). The groups allege negligence by the administration in protecting lesser prairie chickens under the Endangered Species Act (ESA) and claim the Service failed to complete a 12-month finding to determine if the bird was eligible for ESA protection.
Environmental groups are also citing climate change in their suit, claiming the flamboyant species’ numbers are in decline partly due to increased prairie temperatures, using climate change impacts to bolster their claim that the lesser prairie chicken’s habitat is at risk.
According to Lewis & Clark Law School professor Dan Rohlf, broader changes to ESA regulations could affect the way environmentalists invoke climate issues in court and rebuff the claims made by environmental groups. Per E&E News (sub req’d), new rules proposed by Secretary Bernhardt would acknowledge climate change but place uncertainty on how it will affect species beyond the immediate future.
According to a press release about the policy shift, the change proposes “an interpretation of ‘foreseeable future’ to make it clear that it extends only as far as they can reasonably determine that both the future threats and the species’ responses to those threats are probable.”
The rule is intended to streamline federal habitat protections and consultation for listed species, and stanch the constant flow of ESA litigation, like the recently launched lesser prairie chicken suit.
In the News
Action-packed term fails to curb ‘administrative state.’ E&E News, Sub req’d. Environmental implications lurked below the surface of a slew of Supreme Court disputes this term, making it one of the most consequential in years for court watchers tracking those issues. Big cases involving subjects as varied as sex offender registration, old burial grounds and veterans’ benefits teed up critical administrative law and property rights questions for the justices. Those decisions will ultimately sway litigation related to federal environmental rules, local-level regulations and other government actions. Conservative lawyers had hoped the high court would seize several opportunities to rein in the network of unelected but powerful federal agency officials they’ve dubbed the “administrative state.” Their campaign has been growing for years and seemed poised for swift successes after the addition of Justice Brett Kavanaugh to the court.
Greens, Interior settle Shasta salamander suit. E&E News, Sub req’d. Conservationists reached a settlement with the Interior Department requiring the agency to determine whether salamanders that would be imperiled by a proposed dam raise in Northern California should qualify for Endangered Species Act protections. The Center for Biological Diversity sued Interior in November over a renewed bid by the agency to raise Shasta Dam by 18.5 feet. CBD says raising the more than 600-foot dam would inundate critical habitat for three imperiled salamander species. It has sought ESA protections since 2012. Last November, the group sued. When CBD first petitioned to have the salamander listed, it was regarded as a single species. Last year, however, research suggested it is three distinct salamander species, each about 4 inches long with a dark, reddish brown color: the Shasta salamander, the Samwel Shasta salamander and the Wintu Shasta salamander.
Enviros sue Bernhardt, FWS for updated grizzly recovery plan. E&E News, Sub req’d. An environmental group today filed a federal lawsuit in an effort to compel the Trump administration to update a more than 25-year-old recovery plan for grizzly bears across the United States. The lawsuit, filed today in the U.S. District Court for the District of Montana on behalf of the Center for Biological Diversity, says the Fish and Wildlife Service “has failed to prepare a timely grizzly bear five-year status review” in violation of the Endangered Species Act. FWS also violated the Administrative Procedure Act when it “unreasonably denied” a CBD petition five years ago “for an updated and amended grizzly bear recovery plan,” the complaint says. FWS has only supplemented the recovery plan since it was last revised in 1993, according to the complaint, which names Interior Secretary David Bernhardt and Margaret Everson, FWS’s acting director, as defendants.
FWS sets new ‘recovery’ standards. E&E News, Sub req’d. The Fish and Wildlife Service now wants to nail down what “recovery” means for 85 protected species, including a slew in California. Numbers will get a greater emphasis under the agency’s bid today to add quantitative criteria for assessing whether the plants and animals can be removed from the Endangered Species Act lists of threatened and endangered species. The move is part of a broader FWS plan to set new goals for how to “delist” species that have recovered in population. Many species’ recovery plans detail when they can move from “endangered” to “threatened,” for instance, but don’t detail when the species is in the clear, fully recovered. Take the desert pupfish, an endangered species found in California and Arizona. The fish’s current recovery plan — written in 1993 — identifies benchmarks for downlisting the species to threatened but omits any specifics for full recovery and delisting. The proposed new plan spells out and justifies detailed delisting criteria over four pages.
Some ESA listing battles occur without fanfare. E&E News, Sub req’d. The Dixie Valley toad, yellow-billed cuckoo and Oregon vesper sparrow show that some Endangered Species Act dramas can percolate below the surface. In public comment periods that end tomorrow, the Fish and Wildlife Service has attracted numerically little interest in proposals to further study protecting two of the species and delisting the third. The low-wattage consideration suggests federal officials face few impediments to their plans and provides a sharp contrast to the controversies surrounding ESA proposals involving high-profile species like the gray wolf. While the FWS proposal to remove the gray wolf from federal protections has incited 645,589 comments so far in a comment period that continues through July 15, only 37 commenters have responded to the proposal to further study delisting the Western distinct population segment of the yellow-billed cuckoo.
National interests converge on central Minnesota in US’s only gray wolf delisting hearing. AG Week. Representatives of the U.S. Fish and Wildlife Service characterized the decision as a matter of scientific analysis — populations of gray wolves in the lower 48 have rebounded since initial placement on the endangered species list in 1978, establishing a more robust presence in the northern portions of Minnesota and Wisconsin, the Upper Peninsula of Michigan, as well as the northern Rockies in the west, to the tune of more than 6,000 animals. These numbers exceed combined goals for both the Rockies and western Great Lakes populations. The delistment does not include vulnerable red wolf populations or Mexican gray wolf populations in North Carolina and the southwestern United States, respectively. Delistment would strip gray wolves of most federal protections and leave management of the species’ populations to state agencies.
