Issues

Dispute over American Burying Beetle sparks lawsuit against USFWS. This week, a national conservation organization filed suit against the U.S. Fish and Wildlife Service (USFWS) over a public records dispute involving the American burying beetle.

Oklahoma State University entomologist, Wyatt Hoback, was once recruited by the Fish and Wildlife Service to study the high-profile American burying beetle but after an experience Hoback described as “
frustrating and disheartening,” he ended his work with the agency. Hoback claimed “the Fish and Wildlife Service wanted to conclude that agriculture is not a risk to the beetle and were going to use the data in a way that made that conclusion, no matter what.” In particular, Hoback cited problems with how the agency has assessed the potential impact of agricultural development on the beetle currently listed as endangered under the Endangered Species Act.

In 2015, an industry coalition that included the Independent Petroleum Association of America (IPAA), petitioned Fish and Wildlife to delist the beetle as endangered. The government responded by beginning the species status assessment, which includes population trends and threats impacting the species. In support of the assessment, former director of government relations for IPAA, Sam McDonald, told The Washington Post, “The [Fish and Wildlife] Service should be expending its time on imperiled species. The American burying beetle isn’t one of them.”

After receiving a letter from one of Wyatt Hoback’s peers in the review process that voiced concerns similar to Hoback’s, the Center for Biological Diversity filed suit against USFWS because they did not receive public documents about the review process that were filed for in February. According to the U.S. Interior Department’s Freedom of Information Act request tracking page, USFWS categorized the center’s request as “exceptional/voluminous” and estimated it would be completed “after 05/23/2018.”

USFWS declined to comment since the litigation is pending and are referring all requests for comment to the U.S. Justice Department.

Rocky Mountain Governor, GOP reject sage grouse rules and pursue lawsuit. A lawsuit filed in April by Oakley-based brothers Douglas, Don and David Pickett, who own Tugaw ranch, has attracted the attention of top Idaho Republicans, including Governor C. L. “Butch” Otter. The suit alleges that the U.S. Bureau of Land Management and U.S. Forest Service failed to submit certain regulations regarding the Greater sage-grouse to Congress for review.

Idaho U.S. Attorney Bart Davis has asked the federal court to dismiss the lawsuit, arguing the plaintiffs do not have standing to sue. However, last month, Otter – along with Idaho House Speaker Scott Bedke and State Senate President Pro Tempore Brent Hill, requested permission from a federal judge to intervene. In a brief from Bedke, he cited the strong interest of the Idaho Legislature in such a case and the need to consider how federal land use issues concern citizens.

The regulations in dispute establish buffer zones as large as 3 miles in diameter around sage grouse “leks,” the traditional breeding grounds for the chicken-sized bird whose numbers have dwindled from 16 million to between 200,000 and 500,000 due in large part to wildfires, mining, livestock grazing and other development across 11 Western states.

The rules have sparked multiple lawsuits, but this is the first complaint to target the validity of the process used to create and implement the rules. Ultimately, the goal of this particular suit is to evoke the Congressional Review Act and have Congress review and reject the sage grouse rules.

In the News

Kavanaugh’s claims of pro-environment rulings face backlash. E&E News, (Sub req’d). President Trump’s pick for the Supreme Court sought to defend his environmental record yesterday while fielding wide-ranging questions from the Senate Judiciary Committee. Brett Kavanaugh, a judge for 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, came to his confirmation hearing armed with a list of cases that he says favor environmental interests. Kavanaugh briefly opined yesterday on legal issues affecting property rights and Western lands. He also offered a 2017 critical habitat ruling as an example of his property rights jurisprudence. In that case, he reversed a lower court decision and found that a council representing lumber companies had standing to challenge a designation that affected timber lands. “I found standing because I think it’s important to understand that when something like that happens, there are lots of affected parties,” he said. The first case on the Supreme Court’s schedule this term deals with critical habitat for an endangered frog in the South. Environmentalists worry Kavanaugh’s record doesn’t bode well for the species if he is confirmed to the bench.

Zinke hires Endangered Species Act critic for senior post. The Hill. Interior Secretary Ryan Zinke has hired an outspoken critic of the Endangered Species Act (ESA) for a senior position as the Trump administration undertakes a historic effort to ease industry compliance with the law. Robert Gordon — who recently penned a report alleging that the ESA has cost the country hundreds of billions of dollars — recently started work at the Interior Department as deputy assistant secretary for policy, management and budget, said Interior spokeswoman Faith Vander Voort. He works under Susan Combs, who is the acting assistant secretary for policy, management and budget, a position akin to a chief financial officer for the 70,000-person agency. “He has extensive experience working on natural resource issues in Congress and at national think tanks,” Vander Voort said in a statement. “Interior is proud to welcome top-tier talent. Rob Gordon brings impressive and diverse experience to the department, and we are excited to have him on our team.” Gordon has fought for decades while in positions both in an out of government to change the ESA. He most recently worked as an adjunct fellow at the conservative Competitive Enterprise Institute. Days before leaving for the government, he published a major report arguing that official estimates have dramatically underestimated the cost to industry and states for complying with the ESA, and that some single species can cost billions of dollars to protect.

BLM agrees to contested Utah mine expansion. E&E News, (Sub req’d). The Trump administration approved a Utah coal mine expansion yesterday to cheers from the state’s lawmakers, after years of environmental opposition. The Bureau of Land Management yesterday issued a record of decision that will allow the sale of another 30.8 million tons of coal at the Coal Hollow mine, roughly 10 miles from Bryce Canyon National Park. Alton Coal Development LLC originally filed an expansion application in 2004, eventually configured to include nearly 45 million tons of coal under 3,581 acres of public and private land near the town of Alton, Utah. BLM completed an environmental impact statement (EIS) for the project in 2011, but outcry over industrial development so close to Bryce Canyon led the agency to conduct additional analysis. Coinciding with the coal market’s collapse nationwide, the supplemental EIS was only completed in 2015. The final EIS, published in July, identified a preferred alternative that mined less coal on 2,114 acres. Interior Assistant Secretary for Land and Minerals Management Joe Balash selected that alternative yesterday based on potential impacts to water quality and habitat for the greater sage grouse.

Supreme Court To Evaluate Critical Habitat Limits As Services Ramp Up ESA Reform Efforts. Mondaq. As the Trump administration is pushing forward on its deregulatory agenda and, in particular, its efforts to improve the Endangered Species Act (ESA) and its implementation by the US Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services), the Supreme Court is poised to hear a landmark case on designation of critical habitat under the ESA that could provide some guideposts for the Services’ new regulations. On April 2, 2018, the Services sent over a package of proposed ESA regulations to the Office of Management and Budget (OMB) that would likely result in significant changes for the ESA program and could streamline certain ESA-related federal permitting requirements. At the same time as these ESA reforms are under consideration by the White House, the Supreme Court is set to review the extent of the Services’ authority to designate critical habitat in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, a timber company’s challenge to the FWS designation of approximately 1,500 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog. A divided panel of the US Court of Appeals for the Fifth Circuit upheld FWS’s designation, even though the land at issue is unoccupied by the frog, cannot be occupied by the frog unless the land is significantly altered for the frog’s benefit, and does not play any supporting role in sustaining the frog or its habitat. The case, which is set for oral argument on October 1, 2018, will be the first case the Justices hear upon return from their summer recess and, if Judge Brett Kavanaugh is confirmed by then, it could be his first case on the bench. It will be the first ESA case decided by the Supreme Court in more than a decade.