PLF on ESA

Ninth Circuit rules on conservation groups' standing

In an opinion issued today, the Ninth Circuit in Salmon Spawning & Recovery Alliance v. Gutierrez held that a coalition of salmon conservation groups lacked standing to pursue two claims against the National Marine Fisheries Service and other agencies arising out of a 1999 treaty between the US and Canada governing salmon harvests.  The groups contended that (1) the Service's failure to consult adequately over the 1999 treaty in a 2005 biological opinion violated the ESA; they also argued that the Service continues to violate the ESA by (2) implementing the treaty's harvest limits, and (3) not reinitiating consultation.  As to the first claim, the court held that it could provide no relief to the groups that would redress their injury (excessive take of salmon), because the injury was caused by the 1999 treaty, which the court cannot undo.  As for the second claim, the court held that, even though it could overturn the bi-op, that remedy would not be likely to redress the groups' injury:  US withdrawal from the treaty might well produce an increase in Canadian salmon takes.  But the court reversed the lower court and found that the groups had established standing to pursue their third claim, viz., the failure to reinitiate consultation.  Critical to the court's reasoning that standing was established was the fact that the groups' third claim advanced (like its first claim) a procedural injury, which relaxes the "fairly traceable" and "likely to be redressed" components of standing.  Yet unlike the first claim, the court found that the groups' had established standing because an order to the Service to reinitiate consultation could result in a "jeopardy" finding, which would then authorize the US not to implement the 1999 treaty (unlike the first claim, where an overturning of the bi-op would not lead to an undoing of the treaty; in this respect, one wonders whether the groups' first claim was moot).

The opinion presents a nice explication of procedural, substantive, statutory, and group standing.

The BBC on the polar bear lawsuits

With several interviews of Alaskans.

Communications Act v. ESA

Yesterday the Ninth Circuit issued its decision in American Bird Conservancy v. Federal Communications Commission.  The case concerned whether the Communication Act's judicial review provision for challenges to an FCC order is exclusive, or whether an order can also be challenged under the ESA's citizen suit provision.  The plaintiffs sought to overturn the FCC's granting of licenses for seven communications towers in Hawaii, on the grounds that the FCC failed to consult under Section 7 of the ESA over the effects of the towers on listed species and their critical habitat.  The Ninth Circuit affirmed the district court's dismissal, holding that the plaintiffs' Section 7 challenge must be brought pursuant to the Communication Act's review provisions.

Partial Settlement in Polar Bear Lawsuit

Yesterday Center for Biological Diversity et al. filed a partial settlement with Judge Wilken of the Northern District of California.  (CBD's press release is here).  The settlement would cover CBD's claims against the Service for failure to designate polar bear critical habitat under the ESA and failure to establish nonlethal deterrence guidelines for polar bear-human interaction under the Marine Mammal Protection Act.  Pursuant to the settlement, the government must designate critical habitat by June, 2010, and must issue guidelines by March, 2010.  The central claim of CBD's lawsuit---the polar bear should be listed as endangered not threatened---remains for adjudication.

Also pending before Judge Wilken are the government's and the intervenors' motions to transfer venue to the District of Columbia, where there are already pending five lawsuits over the polar bear listing, among them PLF's.

Supreme Court Oral Argument in Environmental Cases

On Wednesday, the U.S. Supreme Court will hear oral arguments in Winter v. Natural Resources Defense Council, the government’s appeal of a Ninth Circuit injunction of certain military training exercises. Several environmentalist groups contended, and the Ninth Circuit agreed, that the Navy’s sonar training—designed to detect silent nuclear powered submarines of the type possessed by several hostile nations—potentially could result in harm to marine mammals.

While the general issue of national security versus species protection will garner the headlines, the Court will hear arguments on an issue of much broader applicability. In the thirty years since the Supreme Court’s decision in TVA v. Hill, federal courts presented with ESA cases have been quick to enjoin activities potentially harmful to protected species regardless of the competing costs of the injunction. That is, while the traditional principles of injunctive relief require a court to "balance the harms" as between competing interests in an injunction, ESA cases tip the scales so heavily to the species that virtually nothing on the other side of the scale—economic loss, property rights, national security—functionally matters. There is nothing in the ESA itself to recommend such a result, and PLF’s amicus brief in Winter argues that the Supreme Court should use this case to restore a proper and common-sense balance.

Also to be argued on Wednesday is Summers v. Earth Island Institute, another environmental case from the Ninth Circuit. The case concerns a challenge to Forest Service adminstrative regulations that govern the notice and appeal process for forest management decisions. The central issue raised by the case is ripeness: whether, under the Administrative Procedure Act, a plaintiff can seek review of an entire regulation, or whether the right to judicial review is generally limited to the specific agency action in which the challenged regulation is implemented. PLF’s amcius brief argues that the Ninth Circuit reached the right result on the ripeness issue. A decision from the Supreme Court going the other way—precluding most facial challenges to agency regulations—would seriously undercut the ability of public interest groups to obtain adequate judicial review.

PLF Polar Bear Lawsuit News Conference

This morning, PLF hosted a news conference to discuss its recently filed lawsuit challenging the listing of the polar bear.  Below is the prepared statement of PLF Principal Attorney Reed Hopper:

Good Morning, my name is Reed Hopper. I am a principal attorney with the Pacific Legal Foundation. I am the lead attorney in the polar bear case.

I will make a brief statement and then take any questions. For the particulars of our case I refer you to our website: Pacificlegal.org, where you will find our complaint and other filings.

Today, PLF filed a complaint in the federal district court of the District of Columbia challenging the listing of the polar bear as a "threatened" species under the Endangered Species Act. PLF represents a wide spectrum of small businesses, food producers, family farmers, property owners, employers and consumers as well the poor and minorities nationwide who would be harmed by restrictive regulations that will likely result from the polar bear listing.

This is the first time in the history of the ESA that a thriving species has been listed based entirely on speculative models forecasting future events. The U.S. Fish and Wildlife Service has declared the polar bear to be threatened solely because admittedly unverified and uncertain climate models predict a declining trend in Arctic sea ice, and not because of any current decline in the polar bear population. The final rule repeatedly admonishes that forecasted population numbers and estimated time periods are not to be taken at face value. Instead, the Rule states that the trend in sea ice is worrisome and that the listing is warranted because melting sea ice will negatively affect polar bear populations, perhaps resulting in steady decline in abundance.

The problem with this conclusion is three-fold. First. The Service admits that the listing of the polar bear as threatened will not address this concern. According to Secretary Kempthorne, the polar bear is already protected by other laws and treaties and "this listing will not stop global climate change or prevent sea ice from melting" in the Arctic. In other words the listing will not address the very threat on which the listing was based.

Second, the climate models relied on by the Service undercut rather than support the listing. Relying on worst case scenarios, these models predict a 78-90% survival rate over the next 40-50 years. The government’s own studies do not forecast an irretrievable decline but anticipate that the polar bear population mid-century will be about 20,000 strong, approximately double the numbers 50-60 years ago.

And third, the current demographic data show that while global temperatures have increased over the past century, the polar bear population has also increased.  It is now the highest in recorded history: an estimated 25,000.  Three-quarters of the nineteen polar bear populations are either increasing, stable, or indeterminate in size.

In short, the polar bear is not threatened, but the listing itself threatens our already weakened economy. Although the government determined that no one can demonstrate an effect on Arctic sea conditions from any particular activity in the United States, that does not stop the environmental activists from challenging economic activity under the ESA’s citizen suit provision based on claims that greenhouse gas emissions will harm the polar bear. These suits will and are being targeted against energy producers, food producers, builders, and other industries which will drive up the cost of energy, fuel, food, transportation, and housing. That means no help to the polar bear, but deep hurt for the people.

We believe that the listing was unwarranted. It simply invites attacks on our economy and American jobs based on speculative concerns that defy actual conditions on the ground.

As a final note, let me add that starting on page 7 of the complaint, we list 18 undisputed facts that individually and collectively compel a decision not to list the polar bear as a threatened species.

PLF Announces Polar Bear Listing Challenge

Find the press release and the complaint here.  PLF represents the California Cattlemen's Association, the California Forestry Association, and the Congress of Racial Equality.  The central contention of the suit is that the polar bear's listing is unfounded, given that the polar bear's status is better now than in all recorded history, and given that the Service's own ice habitat models predict only moderate ice habitat losses eighty years hence.

Wolverine Lawsuit Filed

Defenders of Wildlife and several other environmental organizations filed suit yesterday against the Service, challenging the agency's decision not to list the lower 48-population of the wolverine as a distinct population segment.  The lawsuit asserts three claims, two based upon the Service's implementation of its 1996 DPS policy, and one based upon the Service's interpretation of ESA Section 4's "significant portion of its range" language.  As to the first two claims, the plaintiffs contend that the Service misinterpreted the "discreteness" prong of the DPS policy by (1) requiring absolute genetic isolation, as opposed to genetic discontinuity, between the lower-48 and Canadian wolverine populations, and (2) discounting the conservation law differences between Canada and the United States for the wolverine.  The third claim argues that the Service's analysis of what constitutes a significant portion of the wolverine's range, and more generally the Interior Department's 2007 memo on the meaning of the relevant ESA text, are not consistent with Congressional intent.  The plaintiffs argue that the Service essentially collapses the "significant portion of its range" power with the "throughout all . . . of its range" power, relying upon the flat-tailed horned lizard decision (Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001)).

Because the wolverine is, in North America, a subspecies, the plaintiffs' suit raises the statutory question of whether the ESA authorizes the listing of DPSs of subspecies, as opposed to just species.  The Ninth Circuit, in an unpublished decision issued in March of this year, held that the ESA authorizes both, but one suspects that the question will continue to be raised until the Ninth Circuit decides the matter in a precedential decision.

(The AP story on the wolverine lawsuit can be found here.)

Gray wolf delisting overturned

Judge Friedman of the District of Columbia District Court today vacated the Service's 2007 rule designating the Western Great Lakes distinct population segment of wolves and delisting the same.  The court held that the ESA is ambiguous as to whether the Service has the power to reconstitute an existing listed species as several DPSs, and then delist one or more of those DPSs.  The court remanded the matter to the Service to give it the opportunity to articulate why the Service's position is a reasonable construction of the ESA which would merit deference under Chevron.  Although Judge Friedman's statutory interpretation is not especially remarkable, his Chevron analysis is, for it supposes that the Service's interpretation of the ESA that is set forth in a particular delisting decision is eligible for Chevron deference.  It would be, to say the least, unusual for an agency interpretation of a statute that purports to apply to just one statutory "instance" (as it were) to merit Chevron deference.  This issue is currently being litigated in the Ninth Circuit in Arizona Cattle Growers' Association v. Kempthorne, a case concerning a challenge to the critical habitat designation for the Mexican spotted owl.  There, the district court held that the Service's interpretation of the ESA's critical habitat provisions is eligible for Chevron deference, even though the interpretations apply only to the owl's habitat and to no other.

Rehearing denied in National Wildlife Federation

Last week the Ninth Circuit denied the State of Idaho's second petition for rehearing in National Wildlife Federation v. National Marine Fisheries Service.  The case involves the long-running litigation over federal hydropower projects in the Columbia River Basin.  The plaintiff-appellees have contended that the projects jeopardize the continued existence of a number of ESA-protected salmon populations.  Judge Redden of the District of Oregon has consistently agreed that the biological opinions authorizing the projects' continued operation are deeply flawed.  Last year, the Ninth Circuit affirmed Judge Redden's overtuning of the biological opinions, but shortly thereafter the Supreme Court issued National Association of Home Builders v. Defenders of Wildlife, which held that ESA Section 7 applies only to discretionary federal actions.  On the basis of NAHB, a number of NWF appellants moved for rehearing.  The Ninth Circuit denied that rehearing petition, determining that NAHB did not require a different result:  that case dealt with nondiscretionary projects, whereas NWF deals (pace the Ninth Circuit) with discretionary projects.  While all this was playing out at the appellate level, the Service, on remand from Judge Redden, issued a new biological opinion governing the hydropower projects.  Idaho therefore argued to the Ninth Circuit, in its second rehearing petition, that the case was now moot, and that the Circuit should vacate its earlier decision on the merits.  It was this request that the Ninth Circuit denied last week.

The case is far from over, however.  Shortly after the new biological opinion was issued, the NWF plaintiffs moved to amend their complaint to challenge the consultation documents.