31 ELR 10283 | Environmental Law Reporter | copyright © 2001 | All rights reserved


Major Endangered Species Act Developments in 2000

Michael J. Bean

Michael J. Bean is Chairman of the Wildlife Program of Environmental Defense and author, with Melanie J. Rowland, of THE EVOLUTION OF NATIONAL WILDLIFE LAW (3d ed. 1997), the first edition of which was written in 1977 when he was an attorney at the Environmental Law Institute.

A number of interesting and important issues arising under the Endangered Species Act were addressed in litigation during the year 2000. This Article selectively reviews several of them.

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Constitutionality of Endangered Species Act (ESA) Restrictions

Unlikely as it may seem, the constitutionality of certain of the ESA's core restrictions is still being questioned nearly three decades after its enactment. The U.S. Supreme Court's willingness to reexamine the scope of federal authority under the U.S. Constitution's Commerce Clause since United States v. Lopez1 has put the ESA in the cross hairs for the following reasons: (1) most endangered species occur only within a single state, (2) relatively few endangered species have commercial value that make them the object of interstate commerce, and (3) most, if not all, of the activities that the ESA prohibits, especially those that run afoul of its prohibition against "taking" protected animals, could be characterized as essentially local, and many of those activities are not economic in character.

The D.C. Circuit faced the first of the Commerce Clause challenges to the ESA in 1997. In National Ass'n of Home Builders v. Babbitt,2 the D.C. Circuit considered whether the ESA's prohibition against taking the Delhi Sands flower-loving fly, an endangered insect that is found only in California and that has itself never been the object of interstate commerce (apart from a handful of instances involving specialist collectors), exceeded the constitutional authority of the federal government. Although the court upheld the law against this challenge, it split two to one, and the two judges who ruled in support of the law were unable to agree upon a rationale for doing so.

A similar challenge, involving restrictions against the killing of reintroduced red wolves in North Carolina, was pending before the Fourth Circuit Court of Appeals earlier this year when the Supreme Court issued its decision in United States v. Morrison.3 Morrison struck down provisions of the Federal Violence Against Women Act on the Lopez theory that they exceeded federal authority under the Commerce Clause. Gender-based violence, in the Court's view, was simply noneconomic in character and therefore unlike the sorts of activities whose regulation had been upheld in earlier Supreme Court cases.

The question for the Fourth Circuit in Gibbs v. Babbitt,4 therefore, was whether the taking of red wolves was an "economic activity" as that term was used in Lopez andMorrison. In the view of the majority it was, and the opinion stating that view is a powerful and persuasive defense of endangered species protection from Commerce Clause challenge. Interestingly, the opinion was written by Chief Judge Wilkinson, who had joined the Fourth Circuit majority decision in the ruling that the Supreme Court affirmed in its Morrison decision. The author of that earlier Fourth Circuit decision, Judge Luttig, vigorously dissented from Wilkinson's red wolf ruling.

Chief Judge Wilkinson's conclusion that prohibiting the killing of red wolves on privately owned land substantially affects interstate commerce rested upon several bases. First, he pointed out that the motivation to kill wolves was largely to protect economic assets.5 Second, without red wolves, there would be no red wolf-related tourism or scientific research, nor would there be the possibility of future trade in wolf pelts.6 Third, he held that although the killing of an individual wolf might be of negligible consequence for commerce, the proper inquiry was on the aggregate impact of such activities.7 Finally, though farmers might kill red wolves for economic reasons, the wolf may confer benefits on commerce by controlling species that destroy crops.8 In what may be the most significant sentence in the opinion, Wilkinson asserted that "Congress is entitled to make the judgment that conservation is potentially valuable, even if that value cannot be presently ascertained."9

In a concluding rebuttal to Judge Luttig's dissent, Chief Judge Wilkinson offered a warning that perhaps the Supreme Court would have been well-advised to read before its recent venture into electoral politics.

Reversing the presumption in favor of constitutionality plunges our dissenting brother into the thick of political controversy…. Both sides in this political stand-off have their legitimate points to make…. Why the judicial branch should place its thumb on either side of this old political scale is simply beyond our comprehension…. An indiscriminate willingness to constitutionalize recurrent political controversies will weaken democratic authority and spell no end of trouble for the courts.10

The Gibbs decision, both because of its thorough and careful reasoning and because it came from the circuit perhaps most likely to use the Commerce Clause to circumscribe federal authority, probably removes the threat that the ESA will be dealt a major constitutional setback for the foreseeable future. Nonetheless, predicting what the next step in [31 ELR 10284] the Lopez and Morrison jurisprudence will be is speculative at best, particularly since both Chief Judge Wilkinson and Judge Luttig appear on many lists of potential appointees to the Supreme Court by President George W. Bush.

First Challenge to Experimental Population Regulations

The Tenth Circuit Court of Appeals issued the first appellate decision addressing the "experimental population" provisions of ESA § 10(j) early in 2000. In Wyoming Farm Bureau Federation v. Babbitt,11 the Tenth Circuit upheld the actions of the U.S. Fish and Wildlife Service (FWS) in establishing experimental populations of gray wolves in the Yellowstone area of Wyoming and Montana and in central Idaho. Its decision overturned a 1997 district court decision that found the FWS' actions unlawful and ordered the removal of the reintroduced wolves and their offspring.12

The principal issue in the case was whether the government could use the authority of § 10(j) to establish "experimental populations" of wolves in the two areas, given that there was evidence of individual, naturally occurring wolves in those areas from time to time. Because of the differing levels of protection afforded experimental and nonexperimental populations, § 10(j) requires that experimental populations be "wholly separate geographically from nonexperimental populations of the same species."13 The FWS contended that it had the authority to proceed under § 10(j) because there was no "population" of wolves in either Yellowstone or central Idaho. In the FWS' view, the occasional wolf that occurred in these places from time to time did not constitute a population. Instead, a population required the presence of at least two successfully breeding pairs.

Two sets of interests disagreed. One was composed of the American Farm Bureau Federation and several of its state affiliates. They alleged that the presence of occasional wolves in central Idaho and Yellowstone meant that the government had acted unlawfully in reintroducing wolves there under § 10(j). The remedy, they argued, was to declare the reintroduction unlawful and to remove the wolves.

The National Audubon Society and three small local groups also challenged the FWS' action. They alleged that there were naturally occurring wolves in central Idaho and that the government's action of establishing an experimental population of wolves there stripped native wolves of the greater protection to which they were entitled. Because the government could not treat the naturally occurring wolves as part of an experimental population under § 10(j), the groups sought an order that would declare the government's action unlawful, but allow the naturally occurring wolves to receive the full protection of endangered species.

Two groups that had devoted significant resources to the wolf reintroduction effort, Defenders of Wildlife and the National Wildlife Federation, intervened in support of the FWS' position. However, the district court agreed with the Farm Bureau and the Audubon group's premise that § 10(j) could not be utilized wherever any naturally occurring individual wolves might be.14 Moreover, it ruled that the appropriate remedy was to remove the unlawfully introduced wolves.15 It stayed that order, however, pending an appeal.16

The National Audubon Society reconsidered and reversed its position shortly after the district court decision. Represented by new counsel, it filed a motion seeking permission to realign itself with the government's position and to join the briefs of the FWS and a number of other environmental organizations that supported the FWS' position. By virtue of switching its position, Audubon enjoys the rather unusual distinction of being the only party to prevail in both the district court and court of appeals. Audubon's former co-plaintiffs pressed ahead with the position they had taken in the trial court.

The court of appeals' decision unanimously disposed of the various arguments against the FWS' action. The court held that the restrictive interpretation advocated by the Farm Bureau and the remaining environmental groups "could actually undermine the Department's ability to address biological reality … and thus handicap its ability to effectuate species recovery."17 In so ruling, the court has opened the way for more frequent use of the authority of § 10(j), although the availability of "safe harbor" agreements as a tool of accomplishing species reintroductions may be another means of avoiding the problems posed by § 10(j)'s restrictions with respect to the separation of populations.

Mitigation Requirements for Habitat Conservation Plans (HCPs)

In 1982, the ESA was amended to authorize the issuance of permits allowing the taking of listed species incidental to otherwise lawful activities. To receive such a permit, an applicant must prepare a conservation plan, often called an HCP, and the FWS (or the National Marine Fisheries Service (NMFS)) must find that the plan and accompanying permit application meet the criteria in § 10(a)(2)(B). In the nearly 20 ensuing years, several hundred such incidental take permits have been issued, many of which have triggered considerable controversy. Curiously, however, only a handful have been legally challenged. Thus, the corpus of HCP law is quite small.

In August 2000, the U.S. District Court for the Eastern District of California handed down a noteworthy decision in National Wildlife Federation v. Babbitt.18 At issue in the case was an HCP for the giant garter snake in the Natomas Basin, a 53,000-acre area of largely agricultural land to the immediate north of the city of Sacramento. About a fifth of the basin is within the city limits; the remainder lies outside the city limits in Sacramento and Sutter counties. Although the HCP encompassed this entire area and it contemplated that each of the jurisdictions would submit a permit application authorizing incidental take in the course of development within its own jurisdiction, the city of Sacramento, where development was most imminent, was the first to do so. The fact that the plan covered a broad geographical area, but the permit applied to only a portion of that area, was the source of the problems with which the court wrestled.

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Like many regional HCPs, the Natomas Basin HCP was to raise money to acquire preserve areas by imposing a special assessment, or "mitigation fee," on land as it was developed. Thatfee was set initially at $ 2,240 per acre, though it could be adjusted upward to cover increased costs. Plaintiffs alleged with respect to this arrangement that the FWS could not properly make the finding required by § 10(a)(2)(B)(ii) that the HCP "will, to the maximum extent practicable, minimize and mitigate the impacts of such taking."19 The court agreed, principally because the record before it shed virtually no light on how the mitigation fee had been derived. The court pointed out that the record contained "no economic analysis, discussion of mitigation fees in similar plans and circumstances, or even representations from particular land-owners,"20 a list that should give future HCP writers an indication of the type of information likely to be needed to withstand future challenges. The fact that the initial fee could be adjusted upward over time to reflect increased costs was of little avail to the FWS, because the possibility existed that the need for increased fees might only become apparent after development in the rapidly growing city had been completed. Further, the surrounding jurisdictions might never opt to join the plan.

The court also found that the applicant failed to "ensure that adequate funding for the plan will be provided,"21 as required by § 10(a)(2)(B)(iii). Here, too, because development was expected to occur first within city boundaries, the possibility existed that the mitigation fees generated by that development would be insufficient to mitigate its impact, yet without the participation of the surrounding counties, no mechanism would exist to ensure that the shortfall of funding would be made up. The court questioned whether the statutory requirement could ever be met without the applicant's guarantee of funding, but held that "in these circumstances, where the adequacy of funding depends on whether third parties decide to participate in the Plan, the statute requires the applicant's guarantee."22

The same uncertainty about whether the counties would eventually apply for permits also undercut the FWS' determination that issuance of a permit to the city would not jeopardize the continued existence of the giant garter snake. The FWS' finding on that matter assumed that the counties would eventually apply. However, the FWS failed to adequately consider what the impact would be if the counties did not. That, in the court's view, was also improper.

Liability of Regulatory Bodies for Taking by Regulated Interests

Often, the taking of endangered species happens as a result of activities undertaken by a great many individual actors—including fishermen, pesticide users, homeowners, and others. As a practical matter, enforcing the taking prohibition of the ESA against these myriad actors is exceedingly difficult. However, if the activities of these actors are subject to regulation by some intermediary, such as a city or county government, it may be much more practical to influence what the various individual actors do by influencing how the intervening regulatory body wields its authority. Indeed, if a regulatory body could itself be deemed liable for the taking ofendangered species by those whose activities it regulates, then the practical alternative to enforcing the ESA's prohibitions against thousands of individual actors would be to enforce those prohibitions against the regulatory body. This theory of indirect liability is the underpinning for many HCPs developed by local governments on behalf of landowners within their jurisdictions whose development activities are subject to the government's regulation.

The key question, therefore, is whether regulatory bodies are liable under the ESA for the taking of endangered species as a result of the activities that they regulate. The answer is yes, at least sometimes. In the past, courts have held the U.S. Environmental Protection Agency (EPA) responsible for the taking of endangered species that would foreseeably result from the use of pesticides registered by EPA,23 and the state of Massachusetts responsible for the taking of endangered whales by fishing vessels licensed by the state.24 In 1998, the Eleventh Circuit Court of Appeals seemed to add its authority to this conclusion with its decision in Loggerhead Turtle v. County Council of Volusia County, Florida.25 The court reversed the dismissal of a claim that the county was liable for the harming of sea turtle hatchlings that were disoriented by lights from nearby developed areas on the theory that the county's regulation of beachfront lighting was "harmfully inadequate." At least, the court concluded, the plaintiffs were entitled to a chance to prove this claim at trial.

On remand this past March, the U.S. District Court for the Middle District of Florida rejected the plaintiffs' theory of indirect liability in a carefully reasoned opinion.26 It was undisputed that the beachfront lighting was resulting in the taking of turtles, notwithstanding that the county had enacted ordinances restricting lighting in a variety of ways, including requirements that homeowners "rearrange lamps and other moveable fixtures away from windows" and "turn off unnecessary lights."27 The court rejected the notion that because the regulations may be inadequate to prevent all harm to turtles, the county is liable for the resulting harm. According to the court, "Volusia County cannot be made to assume liability for the acts of its private citizens merely because it has chosen to adopt regulations to ameliorate sea turtle takings."28 The "true violators," in the court's view were "the persons responsible for illuminating the beach,"29 and they were not before the court. The court noted that there was another potential remedy, which was for the FWS itself to adopt federal lighting regulations.30

In reaching the above conclusions, the court agreed with the contention of the county that its regulatory scheme "acts to prohibit, restrict, and limit artificial beachfront lighting, [31 ELR 10286] not to authorize, entitle, or legitimize it."31 The distinction between regulations that prohibit and those that authorize seems sound in the context of an ordinance enacted for the specific purpose of helping an endangered species, but it may prove harder to apply in other contexts. Many regulations can be framed either in a manner that prohibits or that authorizes (for example, a zoning ordinance might be characterized as prohibiting any development other than single-family homes or as affirmatively authorizing the construction of single-family homes). If the liability of a regulatory body turns on whether its regulations are framed as prohibitory or authorizing, the result may be regulations worded artfully to escape liability.

The court's suggestion of a federal lighting ordinance seems highly implausible, yet it would not be fundamentally different in character from federal regulations requiring shrimp nets to be equipped with devices to avoid harming sea turtles. Since shrimp boats are licensed by the state to fish (as in Strahan v. Coxe32) and since shrimp fishing without a turtle excluder device unavoidably risks the capture of sea turtles (again as in Strahan v. Coxe), one could posit that the states are liable for the drowning of sea turtles by the boats that they license to fish for shrimp. Rather than pursue such a theory of liability, however, the federal government elected to impose its own regulatory requirements directly on shrimp boats, an action that was upheld in Louisiana ex rel. Guste v. Verity.33

Section 7 Duties Examined

The basic mechanics of ESA § 7 have been clearly established for more than two decades. A federal agency proposing to authorize, fund, or carry out any action that may affect a listed species must consult with the FWS (or the NMFS) and secure from the latter its biological opinion (BO) as to the likely impact of the proposed action on that species. If the FWS concludes that the proposed action is not likely to jeopardize the continued existence of the species or adversely modify or destroy its critical habitat, the agency action can proceed without fear of violating § 7. If, on the other hand, the FWS concludes that the proposed action is likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat, the federal agency must endeavor to identify any reasonable and prudent alternative (RPA) that avoids that result. An agency action that adheres to an RPA can do so without fear of violating § 7. However, an agency that goes forward with an action found by the FWS likely to cause jeopardy to the species or adverse modification of its critical habitat does so at considerable risk of being found in violation of § 7.

While the basic mechanics of § 7 are easily stated, in practice the process is often more muddled. For example, it is a fairly common outcome, at least with respect to major actions, that implementation of an RPA does not fully occur, or does not occur according to the schedule set forth by the agency in the BO. TheFWS often effectively forgives these lapses by revising the RPA to extend the deadlines for implementation or by deleting elements of the RPA. From the viewpoint of both the FWS and the agency, this dynamic approach to implementation of § 7 is useful because it allows them both to adapt to the exigencies of the moment. From the perspective of environmental litigants, however, this practice appears to undermine the force of § 7's commands and creates an opportunity for foot-dragging and post-opinion haggling that evades effective review.

Issues such as these were at the heart of a recent district court case involving one part of the giant U.S. Bureau of Reclamation water project known as the Central Arizona Project. At issue in Southwest Center for Biological Diversity v. Babbitt,34 was the implementation of an RPA in connection with the Pima Lateral Feeder Canal portion of the Central Arizona Project. The effect of this project would be to connect, via surface flows, the various rivers and streams in the Gila River basin. For the endangered fishes of the San Pedro River and Aravaipa Canyon, that brought with it an increased risk of introduction of competing non-native fishes. To keep that risk within limits that it thought compatible with the requirements of § 7, the FWS developed an RPA with various components, including artificial fish barriers, periodic monitoring of fishes present, and two perennial favorites of the FWS: a public education program and the transfer of money from the action agency to the FWS for recovery-related purposes. Each of these elements of the RPA was to be undertaken within various time frames set forth in the BO. The Bureau of Reclamation was unable to meet virtually all of the deadlines. The FWS obligingly extended the deadlines, in some cases after the original deadlines had already passed.

The plaintiffs leveled a barrage of attacks against both the BO and its subsequent amendments. Among other things, they pointed to the fact that a draft of the BO had originally proposed more protective requirements in the RPA. These had been relaxed in the final opinion, apparently to reduce the cost of compliance. In the court's view, these facts were not determinative for "the FWS is required to choose neither the first RPA the FWS develops nor the RPA most protective of endangered species."35 So long as the final RPA complies with the jeopardy standard of § 7, the FWS has fulfilled its duty.

The court was less charitable with respect to the subsequent amendments to the RPA extending the original deadlines. It reasoned that because the deadlines in the original BO were mandatory, the FWS could revise them only "based on scientific opinion that what was once required by a certain date to remove jeopardy is no longer required by that date."36 Having once asserted that the deadlines were essential, the FWS could not later extend them without providing a scientific basis for doing so.

While the above holding appears to clamp down on the practice of repeatedly extending the deadlines for compliance with the elements of an RPA, how much the plaintiffs actually accomplished is far less clear. The court did not order the Bureau of Reclamation to implement any of the elements of the alternative by a timecertain. Instead, it simply ordered the Bureau of Reclamation to reinitiate consultation with the FWS, an order that opened the door to another—but more carefully articulated—extension of the deadlines.

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The Taking Prohibition: Federal and State Cases

The immediately preceding case also contains an interesting discussion of the prohibition against taking listed wildlife in § 9 of the Act. The plaintiffs alleged that the Bureau of Reclamation's failure to implement the terms of the RPA in a timely manner had resulted in an "incursion" of non-native fishes and consequent taking of native, endangered fishes. To prove this claim, the court reasoned, the plaintiffs had to demonstrate both that a taking had in fact occurred, or was imminent, and that such taking was attributable to the project. In concluding that the plaintiffs met their twin burdens, the court indulged in a dubious bit of reasoning.

Water transfers through the Pima Lateral Feeder Canal began in 1990. Since the early 1970s, however, there was evidence of red shiners, a non-native species, in and around Aravaipa Creek. Surveys conducted over the next two decades usually, but not always, located small numbers of red shiners. In some surveys they were found in Aravaipa Creek itself; in other surveys they were found in the San Pedro River, near the mouth of Aravaipa Creek. In 1998, shortly after the Bureau of Reclamation missed the first of its deadlines for the construction of a fish barrier on Aravaipa Creek, the FWS noted a "recent incursion of red shiner into Aravaipa Creek."37 In the court's view, this "incursion" meant that a take of endangered fish was reasonably certain to occur. That much of the court's opinion is not especially noteworthy. It is the portion of the opinion that attributes the taking to the project that seems more problematic.

Nothing revealed in the court's opinion quantifies the magnitude of the recent red shiner "incursion" into Aravaipa Creek. Indeed, the opinion suggests that the court had very little information about the nature of the incursion, since it relied upon a dictionary definition of the word "incursion" rather than specific information about the incursion to conclude that a take had occurred. Against the background of earlier surveys that had shown red shiners to be near the mouth of Aravaipa Creek, but not actually in it, the term "incursion" could denote nothing more than that the species had recently moved back into the creek. The court chose to read much more into the word, however, including a quantitative dimension. Specifically, the court reasoned that "the probability that the [Pima Lateral Feeder Canal] project is the cause of the jump from '5 fish out of hundreds of seine hauls' to an 'incursion' is high, if not conclusive."38 That logic, while far from compelling, was sufficient for the court to conclude that a taking attributable to the project had been proven. In the murky case law of what must be proven to establish a taking since the Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,39 this probably represents the most lenient treatment that plaintiffs can expect. It stands in rather stark contrast to the demanding burden of proof imposed upon plaintiffs in other cases, including one decided by the very same court.40

A recent New York State court decision, State v. Sour Mountain Realty, Inc.,41 also presents an interesting context in which the issue of the taking of protected wildlife is explored. The New York endangered species law prohibits the taking of endangered species, but defines the term "take" somewhat differently than the ESA. Specifically, the federal definition includes the term "harm," which is the key term on which the FWS' interpretation of the take prohibition to include habitat modification rests. Although the New York definition omits the word "harm," it includes shooting, hunting, killing, etc. "and all lesser acts such as disturbing, harrying, or worrying"42 any protected animal.

Sour Mountain Realty owned "rugged, rocky, and undeveloped" land adjacent to a state park and planned to carry out mining operations on the land. Upon learning that a timber rattlesnake den was located some 260 feet from its property line, Sour Mountain constructed a 3,500 foot long "snake-proof fence" in order to keep the rattlesnakes, a threatened species under the state law, off its property. The court's opinion does not reveal whether the realty company's effort to keep the rattlesnakes off its property was motivated by a desire to avoid the killing of the snakes during its planned mining operations, or whether it simply wanted to protect its employees from the risk of being bitten. In any event, the state Department of Environmental Conservation went to court to compel the removal of the fence on the ground that it constituted a taking of the rattlesnake.

The New York Supreme Court (the trial level court in New York) directed removal of the fence. On appeal, the sole question was whether the taking prohibition extended to habitat modification. Relying upon Sweet Home and other cases interpreting the federal taking prohibition (which the court curiously described as "somewhat narrower" than the state prohibition), the appellate division held that "habitat interference may constitute a taking."43 In the court's view, "the sole purpose of the fence … was to interfere with the normal migratory patterns of a threatened species."44

In emphasizing the "purpose of the fence," the court's opinion raises an interesting question, whether mining activities (assuming they take place) would also violate the state prohibition against taking the snake. The "purpose" of mining is not to interfere with the snake's habitat, though that will clearly be its effect. Nothing in the state statute itself suggests that the actor's purpose or motivation matters, just as the inquiry under the federal law is independent of the actor's purpose.

Critical Habitat: A Duty in Search of a Definition

For most of the ESA's history, the FWS has made little use of its authority to designate critical habitat. That has changed as a result of a series of lawsuits brought to force the FWS to designate critical habitats for many listed species. Indeed, the workload associated with accomplishing the court-ordered critical habitat designations is such that the FWS recently halted further species listings until it catches up on the backlog. While the many lawsuits have made clear that the FWS has only limited discretion to refrain from designating critical habitat when it lists species, there is still considerable uncertainty about the legal consequence of designating critical habitat. In the last year, that uncertainty has been reflected in several noteworthy decisions.

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The confusion is well captured in a district court decision rendered just before the start of the year, New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Service.45 At issue was the FWS' economic analysis of its designation of critical habitat for the Southwestern willow flycatcher. In considering the standing of the plaintiff to bring the challenge, the court held that "there can be little question that the governmental action has caused him [one of the plaintiff's members] injury."46 In considering the merits of the challenge, however, the court upheld the FWS' conclusion "that the designation would result in no additional protection for the [bird] nor any additional economic effects, beyond those that may have been caused by the listing and by other statutes."47 The court never offered an explanation for its seemingly contradictory conclusions that plaintiffs had shown actual injury from the critical habitat designation, yet that the designation had no economic impact.

The court's conclusion that there was no additional protection for the bird from the critical habitat designation rested upon the FWS' view that the prohibition in § 7 against actions that were likely to jeopardize the continued existence of the species completely subsumed the § 7 prohibition against destruction or adverse modification of critical habitat. Although the FWS has sometimes asserted that these prohibitions are co-extensive as a general matter, here it implied that they were co-extensive due to the highly imperiled status of the flycatcher. Specifically, the FWS contended that "due to its critically endangered status, 'all existing and potential habitat used by the southwestern willow flycatcher was considered essential to the species survival prior to the designation of critical habitat.'"48 If that is the FWS' view, however, it should not be interpreted to mean that it considers critical habitat inviolate. For example, an FWS BO, issued just a few months prior to the critical habitat designation, allowed the loss of occupied flycatcher habitat by the refilling of Lake Mead, provided only that the Bureau of Reclamation mitigate for that loss by the protection of flycatcher habitat elsewhere. That BO was upheld, after critical habitat designation, but without discussion of its effect in Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation.49

The duty owed by federal agencies toward critical habitat also received considerable attention, though not a great deal of illumination, in a series of threedecisions from the U.S. District Court for the Western District of Washington involving fishing in the range of the Steller sea lion. In the first of those decisions, Greenpeace v. National Marine Fisheries Service (Greenpeace I),50 plaintiffs challenged the BO issued in connection with annual determinations under the pollock and mackerel fishery management plans (FMPs) under the ESA and the National Environmental Policy Act. The NMFS had determined that the pollock fishery would cause jeopardy to the sea lion and adverse modification of its critical habitat, but the mackerel fishery would not. Plaintiffs unsuccessfully challenged the conclusion that the mackerel fishery did not cause jeopardy or adverse modification, but successfully challenged the validity of the RPAs that the NMFS fashioned for the pollock fishery.

In light of the NMFS' jeopardy determination for the pollock fishery, plaintiffs argued that the same result was warranted for the mackerel fishery. Indeed, they asserted that "the evidence is even stronger in the latter context,"51 because there was actual evidence of localized mackerel depletions, whereas there was only inconclusive evidence for the pollock. The court disagreed, citing as the most important difference the fact that the North Pacific Council had made significant changes to the fishery since receiving evidence of localized mackerel depletion, including reducing the mackerel catch during critical winter months, and reducing the percentage of mackerel caught in critical habitat from 70-98% to 40%.52 The court notes that "no such changes were made regarding the pollock fishery," but goes on in the same paragraph to say that these changes "are also similar to the changes that [the] NMFS proposed for the pollock fishery RPAs."53

When upholding plaintiffs' challenge to the pollock RPAs, the court faulted the NMFS for not deciding "exactly what level of catch inside critical habitat would result in jeopardy or adverse modification,"54 but instead focusing simply on the extent of reduction from current levels. The puzzling thing about this conclusion is that it is at odds with the court's reasoning with respect to the mackerel fishery. In upholding the no jeopardy determination for the mackerel fishery, the court emphasized the proposed reductions of catch within critical habitat from current fishing levels, without any discussion (at least in the court's opinion) of what level of catch there would result in jeopardy. In short, the court offered the same sort of reasoning in defense of its no jeopardy determination for the mackerel fishery that it found legally insufficient when offered by the NMFS in support of its RPA determination.

Perhaps the explanation for this seemingly inconsistent approach is that the RPAs set forth in the BO were not actually adopted in the FMP, but were modified in ways that were never analyzed. That is, after the NMFS issued its BO containing pollock RPAs, the North Pacific Council proposed changes to them that the NMFS accepted without explanation. Thus, the court was able to conclude that the record did "not contain a single sentence reflecting the reasons why [the] NMFS found the final RPAs to be adequate."55 Moreover, the RPAs actually adopted would not necessarily have resulted in the qualitative changes sought by the RPAs in the BO. The court pointed out that it appeared to be theoretically possible under the RPAs actually adopted that the take of pollock during the critical winter season could increase, whereas the RPAs proposed in the BO sought to decrease such winter harvests.

One other puzzling aspect of the opinion is the court's handling of plaintiffs' claim that the RPAs failed to "analyze jeopardy and adverse modification separately."56 The court, while noting that "there is considerable overlap between these two" requirements, finds that because they are set [31 ELR 10289] forth as two separate duties in the ESA, "[the] NMFS should therefore have analyzed the two separately."57 The court immediately backs away from this holding, however, by adding the important qualifier "or provided an explanation for why, in this case, the two could be treated together."58 The court fails to elucidate how those two standards differ. Indeed, although it may be reading far too much into a single word, it is perhaps noteworthy that the court ultimately faults the NMFS for failing to specify exactly what "level" (not "levels") "of catch inside critical habitat would result in jeopardy or adverse modification."59 If the two duties impose substantively different standards, the level at which jeopardy occurs is presumably not the level at which adverse modification occurs. Nothing in the opinion suggests that the duty to avoid adverse modification requires the cessation of fishing in critical habitat; indeed, the court upheld the mackerel fishery after noting that 40% of the mackerel catch would occur within critical habitat.

At the same time that the NMFS was consulting regarding the changes to the pollock and mackerel fisheries at issue in the previous decision, it was preparing a new supplemental environmental impact statement (SEIS) for the entire groundfish FMPs of the Bering Sea and Aleutian Islands (which include not only the pollock and mackerel fisheries, but many others as well). One of the plaintiffs' claims not addressed in the initial decision of the court was that the NMFS had not done an adequate "comprehensive" BO for the entire groundfish fishery. At the same time (1998) that the NMFS issued its pollock/mackerel BO, it also issued a broader BO for the groundfish fishery as a whole. In Greenpeace v. National Marine Fisheries Service (Greenpeace II),60 plaintiffs challenged the latter on the grounds that it only analyzed "total allowable catch" specifications "without adequate discussion or consideration of the likely cumulative impacts of all these fisheries on Steller sea lions."61 The NMFS argued that its BO was adequate and, in the alternative, that its BO had been withdrawn and consultation reinitiated. The NMFS had prepared an earlier BO addressing the groundfish FMPs in 1996. That BO was challenged, but the NMFS persuaded the court to stay the challenge on the basis that it was preparing a new BO in connection with the planned SEIS.

The court held that "the adoption of the FMPs and the authorization of the yearly fishery are separate and discrete agency actions,"62 each requiring a separate BO. The court rejected industry intervenors' argument that the BO done in 1996 was the required comprehensive BO and had never been challenged, pointing out that it had in fact been challenged, but the challenge was stayed pending development of the SEIS and new BO. Moreover, the court held that intervening changed circumstances made "continued reliance on the 1996 BO legally impossible"63 given the duty to reinitiate consultation when circumstances change.

Addressing the adequacy of the scope of the comprehensive BO, the court held that:

a comprehensive [BO] addressing the full scope of the FMPs should, at the very least, identify all the relevant management measures and explain how these measures individually, and in combination, affect the listed species and its marine environment…. General background information does not substitute for focused and meaningful analysis of how the numerous individual management measures, or the management scheme as a whole, affect listed species.64

The court found that the BO contained "no analysis whatsoever" of cumulative effects and "no meaningful analysis" of the effects of the FMP on critical habitat.65

NMFS itself repeatedly concludes in [the BO] that it simply lacks the information to make any determination one way or the other…. Although inconclusive data does not necessarily render a particular scientific conclusion invalid, the limited scope and quality of analysis that is contained in [the BO] serves to highlight its overall inadequacy.66

Hinting at things to come, the court concluded that "until such time as a comprehensive opinion is in place, this Court retains the authority to determine whether any continuing action violates the ESA and can provide effective relief by enjoining it or remedying its effects."67

Shortly after the above ruling, plaintiffs asked the court to enjoin all groundfish trawl fishing within critical habitat of the endangered sea lion population, a request that was considered in Greenpeace v. National Marine Fisheries Service (Greenpeace III).68 The NMFS represented that it expected to complete its comprehensive BO, required by the previous ruling, by October 31, 2000. Meanwhile "the year 2000 North Pacific groundfish fisheries are continuing. A significant portion of these fisheries occurs within designated Steller sea lion critical habitat."69 The NMFS had imposed a number of protective measures on the pollock fishery after the court found the RPAs for that fishery inadequate (and after the court refused to enjoin the fishery pending issuance of the revised RPAs, without opinion), but those measures left "a considerable amount of critical habitat"70 open to fishing. In 1999, between one-third and one-half of the total take of pollock, cod, and mackerel in the Bering Sea/Aleutian Islands was taken within critical habitat.

In considering an injunction, the court required a showing of a likelihood of success on the merits and of irreparable injury. With respect to the former, the court stated that "in the absence of a completed comprehensive [BO the] NMFS has not, and cannot, insure that continued fishing in designated critical habitat will not result in harm to endangered Steller sea lions."71 The court offered no explanation as to why it limited the preceding sentence to fishing in critical habitat. The same conclusion would apply with equal force to fishing anywhere. The missing comprehensive BO, after all, was not supposed to be limited to an evaluation of fishing only within critical habitat. Instead, it was supposed to address [31 ELR 10290] the entire fishery, including activities carried within and without critical habitat. Indeed, the court went on in the very next sentence to say that "under these circumstances, continued implementation of the FMPs and, therefore, authorization of the yearly fisheries under those FMPs, constitutes a continuing violation of the ESA."72

The court next turned to the issue of irreparable injury. The court rejected the argument that any showing of actual harm, i.e., jeopardy, to the sea lion was necessary. Rather, the procedural violation of having failed to prepare a comprehensive BO was sufficient to establish harm. The court thus rejected industry intervenors' claim that in addition to the procedural violation, the plaintiffs had to show that harm to the species was likely and imminent. In discussing this issue, the court badly misread the earlier case of Sierra Club v. Marsh,73 which considered the different consequences of substantive and procedural ESA violations. Marsh involved a challenge to a combined highway and flood control project, one part of which was to be built in the habitat of two endangered birds, the California least tern and the light-footed clapper rail. In that case, the substantive violation was the U.S. Army Corps of Engineers' (the Corps') failure to ensure that the project would not jeopardize the continued existence of the two birds. The court held that the relief for that violation was to enjoin the part of the project being built in the birds' habitat. The procedural violation was the Corps' failure to reinitiate consultation on the project once it became clear that the mitigation requirements of the original consultation might not be implemented. For the procedural violation, the court held that the remedy was to enjoin the entire project (not just the portion in the bird habitat) until consultation was reinitiated. Once reinitiated, the court noted that § 7(d) could require the Corps to refrain even from project activities elsewhere if the effect of those activities was to foreclose reasonable alternatives.

The Greenpeace III court misread the Marsh decision. In a footnote, the Greenpeace III court said:

In Marsh, project activities occurring outside critical habitat were not likely to adversely affect the species or its habitat…. With respect to these nonjeopardizing activities, the Court applied the proscriptions of section 7(d). However, the Court enjoined under section 7(a) all activities occurring within critical habitat because the agency had failed to take the necessary action to "insure" against jeopardy and adverse modification.74

In fact, there was no critical habitat involved in Marsh. The least tern and the clapper rail have never had any critical habitat designated for them. The court's assertion that in Marsh activities in critical habitat were enjoined while activities outside critical habitat were left subject to § 7(d) is simply wrong. What role this misreading of Marsh may have played in the court's subsequent conclusion to enjoin fishing in critical habitat while allowing it to continue outside critical habitat is uncertain, but it is apparent that the relief the court ultimately awarded precisely tracks the relief that it mistakenly thought the Marsh court awarded.

Although the court concluded that no showing of imminent harm was necessary, it went on to say that even if such a showing were necessary, it could be made here with respect to fishing in critical habitat. According to the court, the administrative record showed that "continued trawl fishing in sea lion critical habitat threatens to appreciably diminish the value of critical habitat as a prey resource for sea lions."75 In substantial part, the court based this conclusion on the fact that the NMFS had relied on the same record in support of its earlier conclusion that the pollock fishery caused jeopardy (though the NMFS subsequently imposed RPAs to over-come that result). The industry argued that this decision was inconsistent with the court's prior ruling upholding the NMFS' determination that the mackerel fishery did not cause jeopardy. The court dismissed the significance of its prior decision, since it came before the determination that the comprehensive BO for the FMPs as a whole was inadequate.

While the court concluded that the administrative record supported the conclusion that fishing within critical habitat would cause adverse modification, it discussed various extra-record testimony from experts for the parties. The court concluded its discussion of these conflicted opinions by saying that it "takes no position on the ultimate validity of any expert conclusions upon which [the] NMFS may rely in completing the consultation process."76 This suggests that the injunction against fishing within critical habitat might end upon completion of the consultation. However, the court's order enjoins such fishing "until further order of this Court."77

The court lifted its injunction when the comprehensive BO was finally issued. That opinion restricted, but did not entirely eliminate fishing within critical habitat. It also restricted fishing activities outside of critical habitat. Thus, while this series of three decisions contains more discussion of critical habitat than can be found in earlier case law, it ultimately fails to clarify either the meaning of the prohibition against "destruction or adverse modification" of critical habitat, or the extent to which that prohibition differs from the prohibition against jeopardizing the continued existence of a listed species. Clearly, the three decisions do not stand for the proposition that all potentially deleterious activities within critical habitat are prohibited. As with the jeopardy prohibition, the resource agency must determine the legality of activities within critical habitat by reference to how those activities affect the species, rather than on the basis of their impacts on the habitat per se.

1. 115 S. Ct. 1624 (1995).

2. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

3. 120 S. Ct. 1740 (2000).

4. 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000).

5. See id. at 492, 30 ELR at 20605.

6. See id. at 492-95, 30 ELR at 20605-06.

7. See id. at 493, 30 ELR at 20605.

8. See id. at 495, 30 ELR at 20606.

9. Id. at 496, 30 ELR at 20606.

10. Id. at 505, 30 ELR at 20610.

11. 199 F.3d 1224, 30 ELR 20289 (10th Cir. 2000).

12. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997).

13. 16 U.S.C. § 1539(j), ELR STAT. ESA § 10(j).

14. 987 F. Supp. at 1375.

15. See id. at 1376.

16. See id.

17. Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1237, 30 ELR 20289, 20294 (10th Cir. 2000).

18. No. Civ. S-99-274 (E.D. Cal. Aug. 15, 2000).

19. 16 U.S.C. § 1539(a)(2)(B)(ii), ELR STAT. ESA § 10(a)(2)(B)(ii).

20. No. Civ. S-99-274, slip op. at 40.

21. 16 U.S.C. § 1539(a)(2)(B)(iii), ELR STAT. ESA § 10(a)(2)(B)(iii).

22. No. Civ. S-99-274, slip op. at 46.

23. Defenders of Wildlife v. Administrator, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989).

24. Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997).

25. 148 F.3d 1231, 28 ELR 21546 (11th Cir. 1998), cert. denied, 119 S. Ct. 1488 (1999).

26. Loggerhead Turtle v. County Council of Volusia County, Fla., 92 F. Supp. 2d 1296, 30 ELR 20621 (M.D. Fla. 2000).

27. Id. at 1301, 30 ELR Digest at 20621.

28. Id. at 1308, 30 ELR Digest at 20621.

29. Id.

30. See id.

31. Id. at 1307, 30 ELR Digest at 20621.

32. 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997).

33. 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988).

34. No. Civ. 97-0474 (D. Ariz. Sept. 26, 2000).

35. Slip op. at 18.

36. Id. at 29.

37. Id. at 10.

38. Id. at 37.

39. 515 U.S. 687, 25 ELR 21194 (1995).

40. See Defenders of Wildlife v. Bernal, 204 F.3d 920, 30 ELR 20403 (9th Cir. 2000).

41. 714 N.Y.S.2d 78, 31 ELR 20167 (N.Y. App. Div. 2000).

42. N.Y. ECL § 11-0103[13].

43. 714 N.Y.S.2d at 83, 31 ELR Digest at 20167.

44. Id. at 84, 31 ELR Digest at 20167.

45. 81 F. Supp. 2d 1141 (D.N.M. 1999).

46. Id. at 1153.

47. Id. at 1158.

48. Id. at 1159.

49. 143 F.3d 515, 28 ELR 21247 (9th Cir. 1998).

50. 55 F. Supp. 2d 1248 (W.D. Wash. 1999).

51. Id. at 1262.

52. See id.

53. Id. at 1263.

54. Id. at 1265.

55. Id.

56. Id.

57. Id.

58. Id.

59. Id.

60. 80 F. Supp. 2d 1137, 30 ELR 20314 (W.D. Wash. 2000).

61. Id. at 1143, 30 ELR at 20316.

62. Id. at 1146, 30 ELR at 20317.

63. Id.

64. Id. at 1148, 30 ELR at 20318.

65. Id. at 1149, 30 ELR at 20318.

66. Id. at 1150, 30 ELR at 20319.

67. Id. at 1152, 30 ELR at 20320.

68. 106 F. Supp. 2d 1066 (W.D. Wash. 2000).

69. Id. at 1070.

70. Id. at 1071.

71. Id. at 1072.

72. Id.

73. 816 F.2d 1376, 17 ELR 20717 (9th Cir. 1987).

74. 106 F. Supp. 2d at 1075 n.6.

75. Id. at 1076.

76. Id. at 1080.

77. Id.


31 ELR 10283 | Environmental Law Reporter | copyright © 2001 | All rights reserved