Endangered Species Act Listing Decisions

American pika. (Ochotona princeps): Climate change; recreation; forest management. The U.S. Fish and Wildlife Service (“Service”) determined that listing of the species is not warranted. (74 FR 64377; February 9, 2010). Listing had been sought by the Center for Biological Diversity (“CBD”), which alleged that because the species is extremely thermosensitive, it was being adversely affected by climate change and global warming. The pika is a small mammal found in alpine terrain at higher elevations in the Rockies from Canada to New Mexico and the Sierras in California and Nevada. The determination that protection for the species was not warranted noted that even after being exposed to temperatures in excess of 77.9º F., the pika can move to higher elevations, and that the species as a whole has sufficient habitat even if the lower elevations in its range were subject to warming. The Service found that climate change was the primary threat to the pika (in addition to invasive plants, fire suppression and grazing) and worked with the National Oceanic and Atmospheric Administration (“NOAA”) to develop local-scale models to predict variables in surface temperatures. Listing decisions pursuant to the ESA must be supported by the best available scientific and commercial information. Judicial review is governed by the Administrative Procedure Act, 5 U.S.C. §701.  

Black-tailed prairie dog. (Cynomys ludovicianus): Land use; agriculture; energy development. This small ground squirrel is estimated to occupy 2.4 millions acres in ten (10) states east of the Continental Divide. Wild Earth Guardians (“WEG”) had petitioned that the species be listed as threatened or endangered due primarily to habitat loss, hunting, poisoning and climate change. On December 2, 2009, the Service, by means of a status review required in settlement of litigation determined that listing was not warranted. (74 FR 63343). In 1999, eleven (11) states (through their respective Fish and Wildlife Management agencies) entered into a Conservation Strategy for this species in order to provide some voluntary protections and forestall the need for listing and the associated restrictions on use of both public and private lands. (This was well prior to 2003, when the Service published its “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” 68 FR 15100, March 28, 2003.)  There are four other species of prairie dogs, also found only in North America: the Utah prairie dog (listed as a threatened species); the Mexican prairie dog (listed as an endangered species); the white-tailed prairie dog; and the Gunnison prairie dog. 

Greater sage grouse. (Centrocercus urophasianus): Mineral and renewable energy development; land use. On March 5, 2010, the Fish and Wildlife Service announced that the listing is warranted, but precluded by higher priority actions, another installment in a battle over ESA protection for the grouse that began in December 2003 with petitions to list it. The finding means that the grouse is now a candidate for listing, and its status will be periodically reviewed. The bird is currently found in portions of eleven (11) states and two (2) Canadian provinces, much of which is also critical to wind energy facilities and mineral exploration and development. Multiple petitioners alleged threats caused by drought, disease, predation, and lack of regulatory protection, particularly in areas subject to intense energy activity. A previous finding that listing for the species was “not warranted” was challenged in Western Watersheds v. Fish and Wildlife Service, 535 F. Supp.2d 1173 (D. Idaho 2007). The Court found that the 2005 decision not to list (listing “not warranted”) was tainted by the interference of a political appointee at the Department of the Interior. On March 8, 2010, Western Watersheds filed a First Supplemental Complaint alleging that the Service’s decision not to propose the species for listing is unlawful and requesting the Court to reverse the finding that listing is “precluded’ and to remand with instructions for the Service to publish a proposed listing rule in accordance with a Court-ordered deadline. 

Diamond Darter. (Crystallaria cincotta): candidate species. This member of the perch family (Percidae) is found only in a 36-mile reach of the Elk River in Kanawha and Clay Counties, West Virginia. It is now a candidate for possible future listing to be reviewed periodically. The Service believes is has been extirpated from the rest of its historic range in the Ohio River system and is now very rare. The restrictions of the Endangered Species Act do not apply to candidate species, but federal agencies consider them carefully (often as “Species of Concern”) in the Section 7 process (Interagency Cooperation) and permit applicants should examine measures that might forestall or postpone listing, such as Candidate Conservation Agreements. Another new candidate species is the rabbitsfoot mussel (Quadrula cylindrica cylindrical) found in parts of Illinois, Indiana, Missouri and Ohio. The findings were published in the Service annual report on listing actions. (74 FR 57804, November 9, 2009).

EPA, “A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change. Comment period extended to March 25, 2010 (75 FR 8053). The EPA requested comments (74 FR 61671, November 25, 2009) on a document intended “to provide information to ecosystem and resource managers to support their decision-making about management actions that reflect consideration of those threatened and endangered species that are most vulnerable to climate change”. 

Litigation: ESA and mining reclamation:Friends of the East Fork v. NOAA, WD Wash, No. CO5-189 (February 11, 2010). The Court remanded a Final Biological Opinion (“FBO”) containing an Incidental Take Statement authorizing take of listed species issued in connection with gravel mining operations. The baseline analysis had not considered that the required reclamation from previous mining had not been completed, which caused the court to conclude that the issuance of the FBO violated the APA. The term “environmental baseline” is specific to the ESA (see 50 C.F.R. §402.02); not to be confused with 40 C.F.R. § 1502.15, the NEPA regulations requiring analysis of the “affected environment” where a proposed action may occur. The Court set aside the FBO because it did not consider (the baseline) accurately in that the project area had not been restored as required by state law. 

This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.