Issues

IPAA publishes comments on ESA open dockets.  Together with the Petroleum Association of Wyoming (PAW), the Independent Petroleum Association of America (IPAA) has submitted comments to the U.S. Fish and Wildlife Service and National Marine Fisheries Services on their jointly-proposed Revision of the Regulations for Interagency Cooperation, and Revision of the Regulations for Listing Species and Designating Critical Habitat, as well as the U.S. Fish and Wildlife Service’s proposed Revision of the Regulations for Prohibitions. Select comments include:

  • The U.S. Fish and Wildlife Service should finalize its proposed revisions to the Blanket 4(d) Rule so that newly-listed threatened species’ needs are addressed only on a species-specific basis and enhance the rule.
  • The Services must correct their incorrect description of the scope of intra-Service consultations on Section 10 take permits to make clear that the consultation is limited to the effects of the agency action (i.e., the take permit itself), not any underlying projects or activities for which that take permit may be used and streamline the consultation process.
  • The Services should revise their regulations, as proposed, to codify the understanding that 1) they may not designate any unoccupied areas as critical habitat for a species unless designation of all occupied areas would be insufficient to provide for the conservation of the species and 2) that any unoccupied areas that they designate as critical habitat for a species must be “essential to the conservation of” that species.

Read IPAA’s full comments on ESA Watch.

ESA reform under review. Earlier this week, lawmakers assembled a House panel hearing on nine ESA-related bills. The House Natural Resource Committee examined a package of bills sponsored by the House Western Caucus that are designed to make incremental changes to the Endangered Species Act (ESA). Changes include increased consultation on ESA petitions from state and county governments, expedited petition discharges, streamlining the listing process, and increased transparency by publishing the reasoning for listings of endangered or threatened species.

Lasting two hours, the hearing involved familiar arguments from both sides of the aisle. One in particular that stood out came from a top Interior Department official who appreciated the concerns of lawmakers who brought the bill forward but also underscored his hesitant support by pointing out potential real-world complications from the nine bills in question.

“In general, the administration supports the goals of these bills to improve coordination with, and expand the role of, states in implementing the ESA, to improve transparency in decision-making … and to improve the processes for listing, downlisting, delisting and recovery of species,” said Gregg Renkes, the Interior Department’s Office of Policy Analysis director.

At the same time, Renkes cautioned against the particulars in one bill, H.R. 6345, involving ESA petitions that “may increase workload for agency staff and may expose the department to additional litigation risk.” In the case of another bill, H.R. 6355, intended to restrict ESA actions during designated petition “backlog” periods decisions, Renkes advised lawmakers to consider “more appropriate deadlines that would not place additional constraints on the work of the agency.” Despite this lukewarm reception, Renkes repeatedly declared, “We welcome the opportunity to work with the committee.”

The hearing occurred only one day after the expiration of a public comment period on a Trump administration package of proposed regulatory revisions. The Committee passed H.R. 5636, H.R. 5706, H.R. 6064, H.R. 6118, H.R. 6255, and H.R. 6666 by unanimous consent while also adopting H.R. 6682 and H.R. 5727 by voice vote.

Judge orders revival of sage-grouse leasing reforms. A federal judge has halted the Trump administration’s updated policy on public participation in the process by which the Bureau of Land Management (BLM) decides whether to grant oil and gas leases in a habitat of the greater sage-grouse.

U.S. Magistrate Judge Ronald Bush in a Friday ruling sided with environmentalists who sued in April out of concerns that upcoming sales could harm the flamboyant bird species.

Bush’s preliminary injunction applies only to lease sales that intersect with sage grouse planning areas or habitat management areas. The order requires BLM to return to standards for public participation in the onshore oil and gas leasing process established in a 2010 staff memo under the Obama administration.

“The record contains significant evidence indicating that BLM made an intentional decision to limit the opportunity for (and even in some circumstances to preclude entirely) any contemporaneous public involvement in decisions concerning whether to grant oil and gas leases on federal lands,” noted Bush, an Obama appointee.

Environmental groups that brought the litigation against BLM welcomed the court’s temporary stay of the Trump-era changes to the leasing process. However, Bush’s order does not grant the groups’ request to end BLM’s quarterly lease sale schedule and revert to an Obama-era system of rotating parcel reviews between field offices. The requirements take effect starting with the next round of onshore lease sales, which will take place in December.

In the News

Judge tosses critical habitat for fairy shrimp. E&E News, Sub req’d. A federal judge has rejected a Fish and Wildlife Service map meant to protect a tiny Southern California crustacean that has cast a long legal shadow. U.S. District Judge Ketanji Brown Jackson sided with property owners in rejecting the government’s designation of a 56-acre parcel as critical habitat for the endangered Riverside fairy shrimp. “The manner in which the [Fish and Wildlife Service] determined the scope of the area that the Riverside fairy shrimp occupies is inconsistent with the [Endangered Species Act’s] prescriptions for making that determination,” Brown Jackson wrote The 43-page decision issued yesterday is another victory for Otay Mesa Property LP, which previously prevailed in a 2011 fairy shrimp-related appellate decision authored by Judge Brett Kavanaugh. Kavanaugh, currently on the U.S. Court of Appeals for the District of Columbia Circuit, is now fighting for confirmation to the Supreme Court. The high court starts its new term next week with a case challenging the critical habitat designation for another species, the dusky gopher frog.

Judge to U.S. Fish and Wildlife: Don’t ‘cherry pick’ science. High Country News. In September, U.S. District Judge William Alsup ordered the U.S. Fish and Wildlife Service to reconsider its decision not to federally protect Pacific fishers, ruling that the agency had ignored and mischaracterized research about the species. At a time when the Endangered Species Act faces increasing politicization, the decision re-affirms the role of science in deciding when and how to protect the West’s disappearing species. Rodenticides from illegal marijuana operations have threatened the Pacific fisher in recent years. The Fish and Wildlife Service decided not to grant fishers federal protections in 2016; now, a judge has ordered the agency to reconsider. About the size of large house cats, Pacific fishers hunt birds, rodents, hares and even porcupines. Once found throughout the Pacific Coast mountains, fishers have been dwindling for generations, first because of widespread logging in their range, and more recently because of illegal marijuana operations in remote forests. Since 2004, Fish and Wildlife has stalled over whether to protect Pacific fishers, but in 2014, it finally proposed protecting fishers as federally threatened. Two years later, the agency changed course, deciding that fishers did not need protection after all. Conservation organizations including the Center for Biological Diversity sued, saying that Fish and Wildlife had caved to pressure from the timber industry. Indeed, multiple industry organizations joined the suit as defendants alongside the federal agency. Now, Judge Alsup has ordered Fish and Wildlife to reexamine the issue.

Kavanaugh’s absence could affect rare frog’s fate. E&E News, Sub req’d. On Monday morning, the high court will open its new term with arguments over habitat protections for the dusky gopher frog, an endangered amphibian in the South. It’s unlikely Kavanaugh will be there. The nominee appeared to be cruising toward Senate confirmation two weeks ago before sexual assault allegations surfaced. Now Kavanaugh and his first accuser, Christine Blasey Ford, are set to testify before the Senate Judiciary Committee on Thursday. Republicans have blazoned confidence they’ll ultimately confirm Kavanaugh to the bench, but the vote count remains uncertain. And even with enough support, it would be nearly impossible to have him seated in time for Monday’s Supreme Court arguments. A fastest-case scenario would likely look like this: The panel could act on the nominee immediately after Thursday’s hearing. After moving the nomination out of committee, lawmakers are required by chamber rules to invoke cloture and allow for 30 hours of post-cloture debate before a final vote. The Senate would have to stay in session through the weekend for a full Senate vote on Kavanaugh to occur before Tuesday. That means the ESA case and the rest of next week’s arguments — including disputes over property rights and executive power — will likely be heard by an eight-justice court.

Proposed changes will help recover endangered species. The Hill. For the past 45 years, the Endangered Species Act has been America’s most popular environmental law. In at least one critical respect, that popularity is well deserved: less than 1 percent of species protected by the Endangered Species Act have gone extinct. However, it also has fallen short in an equally important respect: less than 3 percent of protected species have recovered. Recently, the U.S. Department of the Interior proposed a modest reform that finally could enable the Endangered Species Act to achieve both of its noble goals. That reform would adjust the regulatory burdens felt by private landowners based on the degree of threats a species faces, aligning the incentives of property owners with the interests of vulnerable species. As a species recovers, relaxed regulations will reward property owners for their role in that recovery, creating a necessary incentive for landowners to restore and improve endangered species habitat. Equally important, regulations will become more restrictive if a species declines, encouraging property owners to proactively protect less-vulnerable species to avoid this consequence. Importantly, the strict regulations for the most at-risk species will be unchanged, ensuring that the Endangered Species Act will continue to effectively prevent extinction.

Court reinstates protections for Yellowstone grizzlies. E&E News, Sub req’d. A federal court last night halted a planned hunt for grizzly bears near Yellowstone National Park and restored Endangered Species Act protections for them. Environmental groups cheered the move by the U.S. District Court for the District of Montana, saying grizzly bears now “have a fighting chance.” The court ruled that the Fish and Wildlife Service erred when it lifted Endangered Species Act protections for a population of grizzlies in the Greater Yellowstone Ecosystem in Wyoming, Montana and Idaho. The decision is a huge win for several tribes and environmental groups, which announced victory last night. “This is a victory for the bears and for people from all walks of life who come to this region to see the grizzly in its natural place in the world,” Earthjustice attorney Tim Preso, who argued the case, said in a statement. Bethany Cotton, director of WildEarth Guardians’ wildlife program, said the ruling will help grizzlies throughout their range.