Issues
5th Circuit rejects theory of unintentional take under Migratory Bird Treaty Act. The Fifth Circuit recently rejected the United States’ theory of unintentional take under the 1918 Migratory Bird Treaty Act, reversing a Citgo Petroleum Corporation’s conviction related to proposed violations of the Clean Air Act and Migratory Bird Act at a facility in Corpus Christi. The court concluded that birds killed in a refinery’s oil-water separator is not a violation of the Act, and concludes that collisions with power lines are also not takes.
According to the Fifth Circuit panel, the scope of takings under MBTA only prohibits intentional acts that directly kill migratory birds. The panel states, “If the MBTA prohibits all acts or omissions that ‘directly’ kill birds, where bird deaths are ‘foreseeable,’ then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA. This scope of strict criminal liability would enable the government to prosecute at will and even capriciously.”
Friday’s decision also splits the circuit courts on the issue of enforcement of MBTA in the oil and natural gas sector. As Law 360 reports, the decision puts the Fifth Circuit in agreement with the Eighth and Ninth Circuits, both of which have limited “takes” to hunting and poaching activities and that “taking” is limited to deliberate, intentional acts to migratory birds. Meanwhile, 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.”
Court overturns lesser prairie chicken listing. Last week, a Senior U.S. District Judge in Texas overturned the U.S. Fish and Wildlife Service’s decision to list the lesser prairie chicken as threatened under the federal Endangered Species Act (ESA). The bird was originally listed in April 2014 with a 4(d) rule that specified take of the bird was authorized when undertaken by participants in the Lesser Prairie Chicken Range-Wide Conservation Plan.
Since 2014, the decision has received numerous legal challenges from both sides of the issue, including the Permian Basin Petroleum Association and a group of New Mexico counties who argued the listing did not adequately account for the conservation efforts underway in the Range-Wide plan. This argument was upheld in federal court this week, with the court finding “that the FWS failed to properly apply the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) to its evaluation of the Range-Wide Plan, and that that failure resulted in material error,” according to Law 360.
Permian Basin Petroleum Association Ben Shepperd stated in the Associated Press that the ruling “serves as vindication of the unprecedented stakeholder participation across the lesser prairie chicken range.” Senator Jim Inhofe (R-OK) also praised the decision, stating “Oklahoma and the four other states in the LPC’s range established non-federal conservation plans prior to the administration’s decision to list the species. The court’s decision to vacate the listing demonstrates that the U.S. Fish and Wildlife Service did not adequately consider these conservation plans prior to the listing decision, which is a binding requirement.” IPAA supports the court’s ruling and will continue to monitor the results and implementation of the decision in the weeks ahead
IPAA coordinates Pennsylvania rig tour for federal agency. At the end of August, Independent Petroleum Association of America (IPAA) Manager of Government Relations Samantha McDonald and Manager of Communications & Public Affairs Neal Kirby joined Chesapeake Energy and the American Petroleum Institute (API) in hosting a rig tour for seven U.S. Fish and Wildlife Service employees in Bradford County, Pennsylvania. The tour was a follow-up from a meeting held on the northern long-eared bat earlier this year in Hadley, Massachusetts between IPAA, API, and Fish and Wildlife in which they expressed interest in learning more about the oil and natural gas industry. In a thank you note, Assistant Regional Director for Region 5 Paul Phifer wrote, “Actually seeing an operation gives me a much greater appreciation for the thoughtfulness you all bring to the work.” IPAA thanks Chesapeake Energy for their hard work coordinating such a thorough and informative tour. A photo of the tour is also available HERE.
USDA pledges funds to conserve greater sage-grouse. Agriculture Secretary Tom Vilsack announced new plans in August to provide over $200 million in funding to enhance conservation of the greater sage-grouse, building off the Department’s Sage Grouse Initiative and providing additional resources to ranchers who implement projects to conserve the grouse and rangelands. According to the Denver Post, the Sage Grouse Initiative to date has partnered with over 1,100 ranches in the west, spending nearly $300 million to help conserve 4.4 million acres of land.
Under the new plan, referred to as Sage Grouse Initiative 2.0, USDA and its partners hope to nearly double the amount of protected land for the grouse, investing roughly $760 million and conserving 8 million acres of habitat by 2018. The plan was greeted as a positive step by many, including Wyoming Governor Matt Mead and the Oregon Cattleman Association, in both protecting the species and avoiding a federal listing of the bird later this month.
While Secretary Vilsack declined to comment on the upcoming September listing deadline for the greater sage-grouse, he did note the success of USDA programs in supporting the grouse’s population and providing “the best of all worlds: better habitat, better protection and better assurance for producers.” Review the full Sage Grouse Initiative 2.0 strategy HERE.
State land commissioners call for ESA reform. The Western States Land Commissioners Association unanimously approved a resolution last week, calling on Congress to reform the Endangered Species Act (ESA) and end the practice of “sue and settle” to promote listing decisions. According to Texas Land Commissioner George P. Bush, who brought forward the resolution to the association, “we’ve joined with our Western allies to put an end to ‘sue and settle’ and force the Obama administration to be upfront with the American people. It’s time to prioritize scientific assessments in conservation when dealing with property rights and our national security.”
The resolution calls on Congress to enact legislation to increase transparency around ESA listing decisions, limit legal fees currently allowed for decisions, and provide deference to state conservation and management plans to protect candidate species. The resolution also asks that federal critical habitat designations defer to state determinations and that Congress enact legislation to change the statutory deadlines currently outlined in the ESA to provide more time and transparency around candidate listing proposals and decisions. Read the full resolution HERE.
In the News
Oil and gas group urges beetle delisting. E&E News. “Under the requirements of the Endangered Species Act, we believe the case for removing the American Burying Beetle is clear and look forward to the Service’s serious consideration of this petition,” Dan Naatz, IPAA’s senior vice president of government relations and political affairs, said in a statement. “The Service’s legal obligation to evaluate the potential delisting of species under the ESA should be subject to the same care and attention as petitions to list.”
Bogus assumptions helped drive prairie chicken regulations. The Oklahoman (Editorial). A federal judge has ruled that the Obama administration’s efforts to declare the lesser prairie chicken “threatened” under the federal Endangered Species Act were done “arbitrarily and capriciously.” That conclusion isn’t shocking given this administration’s track record. The ruling by Robert A. Junell, a Texas district judge, is a victory for Oklahoma. Had the chicken been declared “threatened,” economic activity in much of the state would have been severely curtailed.
BLM director says state, federal sage grouse plans not that different. Great Falls Tribune. Jamie Connell, Montana and Dakotas director of the Bureau of Land Management, told members of a Montana legislative committee Wednesday that BLM and Montana sage grouse conservation plans aren’t that far apart, despite criticism from Montana Gov. Steve Bullock that the federal agency’s proposed rules are too restrictive on oil and gas development.
Sagebrush restoration has helped songbirds – study. E&E News (sub req’d). Efforts to remove juniper trees in southern Oregon to make room for the greater sage grouse have already benefited a pair of sensitive songbirds that share the grouse’s sagebrush habitat, according to a new study. In the Warner Mountains, the abundance of Brewer’s sparrows, whose plain-brown plumages belie the diversity of their trills and songs, increased by 55 percent after junipers were culled from the landscape, according to the study shared with Greenwire.
Fight to save the sage grouse finds friends in all corners of the West. NPR. A widely-accepted study estimates that $5.6 billion of economic output would be lost if the bird was listed as endangered, which has spurred a lot of people into action. “Certainly, the Endangered Species Act is a huge hammer that’s motivated a lot of people to come to the table,” says Tom Christiansen, Wyoming’s Sage Grouse Program Coordinator.
Sage grouse study aims to keep bird off endangered species list. East Idaho News. The Idaho Fish and Game Department and the Bureau of Land Management’s study is designed to see what habitat is best for nesting and brooding and overall survival of adult birds. The possibility of the nation’s largest grouse being on the Endangered Species List looms over users of desert areas in 11 states. The bird being listed could close large portions of sage grouse habitat for all human use, including grazing cattle, drilling for oil and gas, recreation, and travel.
New drilling could stymie Wyo. sage grouse recovery – report. E&E News (sub req’d). The Obama administration has postponed approving most oil and gas wells within Wyoming’s prime sage grouse habitat, but the industry has over 27,000 wells in the project pipeline in the Cowboy State that could greatly fragment the bird’s best breeding grounds and drive it closer to extinction, according to a report released last week by WildEarth Guardians. Since 2009, the Obama administration’s permitting of industrial projects within core areas has “virtually ground to a halt,” the WildEarth report found. It was a major factor allowing sage grouse numbers to roughly double in Wyoming over the past two years, according to WildEarth’s Erik Molvar, who authored the report.
White House takes up hot-button habitat rule. E&E News (sub req’d). The White House’s regulatory arm this week began reviewing a controversial final rule to redefine the threshold for when projects such as mines, roads, pipelines or drilling harm or destroy critical habitat for threatened and endangered species. Environmental groups have praised the agencies for acknowledging the role critical habitat plays in the recovery of a listed species — as opposed to just its survival — but they’ve warned that the draft rule still fails to stem “incremental and cumulative impacts” to habitat that could push a species to the brink of extinction.
Sage-grouse Priority Areas Function as an Interdependent Network. U.S. Geological Survey (Press Release). The network of greater sage-grouse priority areas is a highly centralized system of conservation reserves. The largest priority areas likely can support sage-grouse populations within their boundaries, but smaller priority areas will need to rely on their neighbors in the surrounding network to sustain local populations, according to new research by the U.S. Geological Survey.
Land commissioners blast ‘sue and settle’ process. E&E News (sub req’d). Two dozen state land commissioners are asking for reforms to the Endangered Species Act, saying the process for animals being added to the list needs reform. “The Endangered Species Act was designed to preserve biodiversity, not enrich trial lawyers and political activists,” said Texas Land Commissioner George P. Bush (R) in a statement. “It’s time to prioritize scientific assessments in conservation when dealing with property rights and our national security.”
U.S. Fish and Wildlife Service Issues Proposed Rule Regarding Critical Habitat Determination for the Marbled Murrelet. JD Supra. On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus). The murrelet is listed as a threatened species under the Endangered Species Act (ESA). The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.
Voluntary Conservation Works Across Party Lines. Roll Call (Op-Ed). In just the past four years, voluntary conservation efforts through NRCS partnerships have helped protect and restore habitat on more than 4.4 million acres at a cost of $300 million. We are particularly pleased the NRCS has just reaffirmed its commitment to investing about $211 million more through 2018 through its Sage Grouse Initiative 2.0, conserving 8 million acres of sage grouse habitat. Voluntary conservation is a strategy that works for landowners, for wildlife and for taxpayers. It’s a triple win that cuts across party lines and fence lines to improve biodiversity and preserve landowners’ land use options. And it’s an approach we need to continue to support on a bipartisan basis.
