Federal Court: States’ Case Against Trump ESA Changes Can Proceed

The wolverine (Gulo gulo) is among the species that would likely be affected by changes to Endangered Species Act regulations. Courtesy Wikimedia – User: MatthiasKabel – own work, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=1493185

A federal judge refused Monday to dismiss a multi-state lawsuit aimed at blocking the Trump regime’s effort to administratively negate significant portions of the Endangered Species Act.

Judge Jon S. Tigar of the U.S. District Court for the Northern District of California rejected arguments by the U.S. Department of Justice that 20 states and the District of Columbia lack standing to challenge the ESA regulations and that the dispute is not ripe for judicial review.

Tigar cited Massachusetts v. U.S. Environmental Protection Agency, a landmark 2007 ruling of the U.S. Supreme Court that granted states “special solicitude” to sue on behalf of their residents in environmental law cases.

Lawyers representing Secretary of the Interior David Bernhardt and other Trump apparatchiks claimed that the dispute cannot be adjudicated because the regulations, while final, have not yet been applied. The regime sought to persuade Tigar that he should use his discretion to refuse to hear challenges to any regulation that has not been specifically implemented to a particular set of facts. 

The three regulations in dispute were finalized in Aug. 2019. Together they will, if not blocked in court, fundamentally weaken federal wildlife conservation policy. Among the changes imposed by the regulations are:

  • species listed as “threatened” will no longer automatically receive the same protections as do species listed as “endangered;”
  • the meaning of the term “foreseeable future” will be determined in each case at the discretion by the U.S. Fish and Wildlife Service and/or National Oceanic and Atmospheric Administration;
  • FWS and NOAA will consider only threats to a species that are “likely” to occur during the “foreseeable future,” a change that may allow the agencies to ignore threats resulting from climate change; and
  • FWS and NOAA will be able to consider economic data when deciding whether to list a species as endangered or threatened.

Tigar has been a federal judge since 2013.

The states’ case is State of California v. Bernhardt, No. 19-cv-06013-JST. 

Environmental group tells Obama administration it will sue over failure to give elephants ESA protection

african-elephant-courtesy-wwf
The number of African elephants has declined from about 3-5 million in 1900 to a few hundred thousand.
Photo courtesy World Wildlife Fund.

An environmental organization has notified the U.S. Department of Interior that it is prepared to sue in 60 days if the Obama administration does not classify two African elephant species as endangered.

The announcement by the Center for Biological Diversity comes about five months after expiration of a deadline set by the Endangered Species Act for a decision on a petition that sought the listing.

“If the current rate of poaching persists, savanna elephants could be extinct in roughly two decades and forest elephants long before that,” Tanya Sanerib, an attorney for the organization, said. “Only by recognizing the true, endangered status of the two species of African elephants can we highlight and address elephants’ plight and threats.”

The June 2015 petition also asked the U.S. Fish & Wildlife Service to formally classify elephants native to Africa into two species: those that are native to equatorial forests (Loxodonta cyclotis) and those that are indigenous to the continent’s vast grasslands (L. africana).

All African elephants are at risk of extinction. According to the Great Elephant Census, a recent effort to estimate the number of the giant mammals now living in the wild on the bulk of the continent, there are less than 400,000 individuals left.

Savannah elephants are being killed so fast by poachers seeking the ivory of their tusks that they could disappear in 15 years. A recent scientific paper that examined the reproductive rate of forest elephants concluded that they, too, face a precarious future:

“The forest elephants Loxodonta cyclotis of Central Africa face the threat of extinction, with recent analysis of census data across their range showing a 62% decrease in their numbers for the period of 2002–2011 coupled with a loss of 30% of their geographical range (Maisels et al. 2013). Modelling of Monitoring of the Illegal Killing of Elephants (MIKE) data corroborates this, indicating that forest elephants are experiencing the greatest levels of poaching in Africa with potentially as much as 10–18% of the population killed per year (Wittemyer et al. 2014).

Section 4(b)(3) of the ESA forces FWS (or, in the case of marine organisms, the National Oceanic & Atmospheric Administration) to decide, within 90 days, whether a petition for listing is supported by “substantial scientific or commercial information indicating that the petitioned action may be warranted.”

The agency then has 12 months to decide whether to add the species to the list of threatened and endangered species.

FWS decided in Feb. 2016 that the CBD petition did meet the scientific prerequisite of ESA section 3. However, the administration has not yet acted on the merits of the petition. One explanation for FWS’s handling of it may be that a decision whether to “uplist” African elephants from threatened to endangered status is not included in the current agency workplan.

Sanerib expressed a belief that the Obama administration has mostly been focused on establishing regulations, called 4d rules after the section of the ESA that authorizes them, to govern trade in elephant ivory and so has not yet prioritized the listing petition.

“I’m not sure that it was necessarily an intentional step by the administration,” she said.

The 4d rule for African elephants, which was finalized on June 6, does largely prohibit the import of ivory into the United States. However, the regulation is not airtight. So-called “de minimis” quantities of ivory are not covered; neither are quantities of ivory that are more than 100 years old, ivory used in certain musical instruments or that is part of some “traveling exhibitions,” law enforcement, or scientific research.

“The U.S. and China have committed to these near-bans on ivory in our domestic markets,” Sanerib explained.

If the African elephant species are listed as endangered, those bans would become far more rigid. Under section 9 of the ESA, essentially all import, export, sale, or transportation of an African elephant, or of its body parts, would be illegal in the United States.

About 100,000 African elephants were killed between 2010-2012. The number of elephants in Africa has declined from an estimated three to five million at the end of the nineteenth century.

Sanerib said that she is not sure whether any litigation that aims to force FWS to make a decision about whether to recognize two species of African elephant and grant both endangered status will be filed before the end of the Obama administration.

“Given the need to send notice letters by certified mail, I think it’s incredibly likely that we will be dealing with the Trump administration on this,” she said.

UPDATE, Nov. 18, 2016, 10:48 pm MST: The discussion of the section of the Endangered Species Act provision relating to FWS’ obligations when presented with a petition to list a species was corrected. The author had inaccurately cited the section number of the statute and erred in stating that FWS has 30 days to evaluate a petition.

 

 

9th Circuit: ESA permits consideration of future climate change impacts in listing decisions

bearded Seal, Erignathus barbatus, , NOAA
Ice is vital to the survival of bearded seals in the Arctic. Image courtesy NOAA.

A federal appeals court ruled Oct. 24 that federal wildlife officials can consider future climate change impacts when deciding whether to grant Endangered Species Act protections.

The decision by the U.S. Court of Appeals for the Ninth Circuit in Alaska Oil & Gas Association v. Pritzker came in a dispute over the Obama administration’s move to add a population of Pacific bearded seals in Alaska to the list of threatened and endangered species.

“This is a huge victory for bearded seals and shows the vital importance of the Endangered Species Act in protecting species threatened by climate change,” Kristen Monsell, a staff attorney at the Center for Biological Diversity who argued the case, said in a statement.

The bearded seal (Erignathus barbatus)  is a pinniped that is native to both the Arctic and North Atlantic oceans. The Pacific bearded seal (E.b. nauticus), a subspecies, is found in marine environments around the Arctic region.

E.b. nauticus is not a deep water species. Instead, as explained by the Alaska Department of Fish & Game, “[t]he distribution of bearded seals appears to be strongly associated with shallow water and high biomass of the benthic prey they feed on. They are limited to feeding depths of less than 150–200m.”

The Pacific bearded seal uses ice floes as a platform for mating, birthing, and nursing of their pups and the subspecies is an important food source for polar bears, killer whales, and Pacific walrus.

bearded-seal-range-map-courtesy-noaa
This map shows the range of the bearded seal. Graphic courtesy NOAA.

In 2008 the Center for Biological Diversity asked the National Oceanic & Atmospheric Administration, an agency of the U.S. Department of Commerce that is responsible for marine mammal conservation, to list two distinct population segments of E.b. nauticus – one native to the Sea of Okhotsk, another native to the Bering and Chukchi Seas – and two other seal species native to Alaskan waters as threatened under the ESA.

NOAA finalized the listing in December 2012, explaining its decision as a necessary response to ongoing human alteration of the planet’s climate:

“The main concern about the conservation status of bearded seals stems from the likelihood that their sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming in the foreseeable future. A second concern, related by the common driver of carbon dioxide (CO2) emissions, is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem.”

Before finalizing the listings, NOAA commissioned a report to examine the conservation status of Pacific bearded seals. Published in 2010, that report used data from the Fourth Assessment Report of the Intergovernmental Panel on Climate Change to conclude that E.b. nauticus would experience enough loss of its favored shallow water ice floe habitat during the species’ mating, birthing, and nursing seasons to be at risk of extinction by the latter part of this century.

The state of Alaska, an oil and gas industry association, and a native Alaskan government sued the Obama administration in federal court in Anchorage in an effort to overturn the listing of both E.b. nauticus populations. Their challenge to the Okhotsk DPS failed because U.S. district judge Ralph R. Beistline held that the plaintiffs lacked standing. That ruling was not challenged on appeal.

As for the Beringia DPS, the plaintiffs main line of legal attack was that the listing was not based on the “best scientific and commercial data available,” as required by 16 U.S.C. § 1533(b)(1)(A). They supported that claim with assertions that there is, at present, a fairly high number of individuals in that population, the size of the population at which extinction would become a realistic threat is not known, that use of climate models to project sea ice conditions past 2050 is not permitted by the ESA, and that NOAA had not shown a connection between seasonal sea ice loss and the continuing viability of the Beringia DPS of E.b. nauticus. The industry-led coalition also pointed to NOAA’s refusal to consider sea ice losses in listing decisions involving other species.

The federal appeals court panel, in an opinion written by Judge Richard A. Paez, had little difficulty in rejecting the arguments. Paez pointed out that the Ninth Circuit has held, in a Feb. 2016 opinion rejecting another ESA challenge brought by AOGA, that IPCC climate models do represent “best available science” and that the U.S. Court of Appeals for the District of Columbia Circuit has also rejected arguments that IPCC models cannot be used in connection with ESA listing decisions.

The panel emphatically rejected the argument that a lack of certainty inherent in the climate models NOAA used renders them useless as a foundation for a listing decision:

“The fact that climate projections for 2050 through 2100 may be volatile does not
deprive those projections of value in the rulemaking process. The ESA does not
require [the agency] to make listing decisions only if underlying research is ironclad and absolute.”
Monsell pointed out that the Ninth Circuit panel’s decision solidifies the role of climate science in making decisions about implementing the ESA, at least in cases of organisms dependent on frozen Arctic habitats.

“The court firmly affirmed the notion that there’s no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic,” she said. “It affirmed the notion that the scientific consensus accepted by an overwhelming majority of climate scientists, is that Arctic sea ice will continue to recede through 2100.”

Spokespersons for both AOGA and the state of Alaska told Alaska Dispatch News on Oct. 24 that those entities will consider whether to seek en banc review of the panel decision in Alaska Oil & Gas Association v. Pritzker or whether to ask the U.S. Supreme Court to review the case.

Monsell said that she does not think such further review is likely.

“En banc petitions are rarely granted and cert petitions are granted even less frequently,” she explained. “We think the Ninth Circuit opinion is well-reasoned, the right one under the law, and will be upheld and that it’s unlikely to even be reconsidered.”

One of the first disputes that may be affected by the Ninth Circuit’s decision in the bearded seal case is a challenge to the listing of the Arctic subspecies of ringed seal (Phoca hispida hispida) as a threatened species. CBD included P.h. hispida in the same petition that asked for the listing of E.b. nauticus.

NOAA listed P.h. hispida as threatened in December 2012 and, as they did in response to the designation of the Pacific bearded seal as threatened, the oil industry and several native Alaskan organizations challenged that action in federal court.

In March 2016 U.S. district judge Ralph R. Beistline ruled, as he had in the challenge to the bearded seal listing, that NOAA’s use of climate science models to project habitat loss later in the 21st century is inconsistent with the ESA’s mandate to use only the “best available scientific and commercial data available” when making listing decisions.

Monsell said that she is optimistic that the Ninth Circuit will reverse Beistline’s decision in the Arctic ringed seal case, too.

“There’s a stronger case for listing the ringed seal in some ways because of the unique habitat needs,” she explained. “Ringed seals, unlike other seal species, dig snow caves and they need not only a certain amount of ice, but also a certain amount of snow on top of the ice to build them.”

The legal limbo to which NOAA’s sister wildlife agency, the U.S. Fish & Wildlife Service, consigned Pacific walrus (Obodenus rosmaurs divergens) in 2011 may also be affected. USFWS specified that O.r. divergens is a candidate for ESA listing on grounds that it lacks the resources to do the work needed to add the animal to the federal list of threatened and endangered species.

A July 2011 litigation settlement agreement between USFWS and CBD requires USFWS to make a decision about listing the Pacific walrus before the end of August 2017.

Not all organisms affected by ongoing human alteration of the atmosphere are found in the Arctic. USFWS is likely to face decisions about whether to list other species that are likely to lose habitat, and which may already be experiencing habitat loss, as climate change proceeds.

Monsell pointed to the American pika (Ochotona princeps), a subspecies of moose (Alces alces andersoni) that is native to the upper Midwest, and the wolverine (Gulo gulo) as examples of American wildlife species that may now be more likely to be added to the federal list of threatened and endangered species as a result of the decision.

USFWS has twice rejected petitions to add the American pika to the list of threatened or endangered species, most recently last month. But new research indicates that O. princeps will suffer as rising temperatures affect their high elevation habitat. A paper published earlier this year concluded that the tiny relative of the rabbit is likely to be extirpated in at least some of its refuges scattered around mountainous areas of the West.

“The consensus of all the projections is decline,” Dr. Chris Ray, a biologist at the University of Colorado at Boulder’s Institute for Arctic and Alpine Research who has extensively studied the species, said. “I would hazard an estimate that most projections under moderate climate scenarios project maybe a loss of at least 50 percent of the suitable habitat during this century.”

Unfortunately, the plight of the pika also indicates that currently available climate models may not help scientists assess conservation prospects for every species.

Ray explained that biologists do not yet understand enough about the impacts of a warming atmosphere on the sub-surface habitat pikas depend upon to escape daytime heat.

“We don’t necessarily have enough information about the process by which pikas are affected by climate or other stressors,” she said. “We don’t understand the process well enough to model them in great detail.”

american-pika-courtesy-wikimedia
The American pika is native to the mountains of the west and is usually found in boulder fields above treeline. Image courtesy Wikimedia.

That uncertainty has also been a barrier to securing ESA protection for  the wolverine.

Opponents of a listing argued that models of future snow cover, an indication of habitat quality for the species, are too unreliable.

USFWS ultimately backed away from an earlier proposal to designate G. gulo as threatened because, among other reasons, the agency did “not have sufficient information to understand the specific response of wolverines to future effects of changes in climate.”

A U.S. district judge in Montana rejected that rationale in April 2016. In his decision, Judge Dana Christensen ordered USFWS to reconsider its decision to deny the wolverine ESA protection. He emphasized that federal wildlife agencies are to take a proactive approach to species conservation under the ESA:

“It is the undersigned’s view that if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation.”

As for the moose of the upper Midwest, USFWS decided in June that the population of the animal in Michigan, Minnesota, North Dakota, and Wisconsin is a candidate for addition to the list of threatened and endangered species.

 

Obama talks conservation in Nevada and Hawaii

President Barack Obama spoke Wednesday about the virtues of conservation before audiences at Lake Tahoe and in Honolulu, emphasizing the connection to fighting climate change and highlighting its benefits to wildlife and people.

Addressing the annual Lake Tahoe Summit, the chief executive explained that public policies aimed at conserving land and waters are essential to the entire range of Earth’s biodiversity.

“Conservation is critical not just for one particular spot, one particular park, one particular lake,” Obama said. “It’s critical for our entire ecosystem.”

The President told the audience that there is no doubt that human activities are causing the planet’s climate to change and, later in the speech, bluntly warned that any meaningful effort to address climate change must include preservation programs:

“A changing climate threatens even the best conservation efforts. Keep in mind, 2014 was the warmest year on record until, you guessed it, 2015. And now 2016 is on pace to be even hotter. For 14 months in a row now, the Earth has broken global temperature records. And because climate and conservation are challenges that go hand in hand, our conservation mission is more urgent than ever.”

Obama addressed the twentieth annual gathering of federal, state, and local leaders involved in ongoing efforts to protect Lake Tahoe’s water quality and aquatic life.

Emerald Bay, Lake Tahoe - photo courtesy Wikimedia
Lake Tahoe’s Emerald Bay is shown in this photograph. Image courtesy Wikimedia.

The lake, which is the largest alpine lake and second deepest lake in the nation, is warming rapidly as greenhouse gas emissions accumulate in the atmosphere. According to a report released by the University of California, Davis’ Tahoe Environmental Research Center, during 2015 Lake Tahoe’s surface reached a temperature higher than at any time in recorded history.

Water at greater depths is also warming as fast as 15 times greater than the historic norm and only about 6.5 percent of precipitation in the 6,000 foot-plus elevation Lake Tahoe ecosystem now falls in the form of snow.

Since the first Lake Tahoe Summit in 1997, governments have spent more than $1.8 billion on projects aimed at restoring wetlands, building transportation infrastructure, improving roads to reduce carriage of polluted runoff into the lake, and lower wildfire risks in the national forest that surrounds the lake.

The administration announced Wednesday that the administration would invest more than $29 million more into Lake Tahoe-related conservation efforts during the coming fiscal year.

A fact sheet released by the  White House said that the money would finance ongoing programs to reduce the number of dead and dying trees to reduce the likelihood of wildfire and improve stormwater systems.

In addition, the National Forest Foundation will pump at least $4 million into efforts to restore watersheds and assure that recreational activities are consistent with the region’s ecological health.

The administration also announced a draft of a compensatory mitigation policy that would allow individuals and entities to trade habitat for endangered and threatened species for credits that could be sold to developers.

The tool, called a habitat exchange, has been used in efforts to conserve a number of imperiled species. They include the monarch butterfly, greater sage grouse, and lesser prairie chicken.

“By adding habitat exchanges to the suite of preferred mitigation solutions, the Service is providing a foundational step to unleash the untapped potential of America’s working lands – its farms, ranches and forests – to reverse habitat loss and stop the extinction crisis,” Eric Holst, an associate vice president at Environmental Defense Fund, said in a statement.

Later in the day Obama spoke to leaders of Pacific Rim nations attending the International Union for Conservation of Nature World Congress in Hawaii.

His address there took on a personal tone. The President emphasized the need for a unified approach to climate change policy.

“When it comes to climate change, there is a dire possibility of us getting off course, and we can’t allow that to happen,” Obama said. “That’s why our united efforts are so important.”

Referring to the convention facility in Honolulu, he also spoke of his personal ties to Hawaii:

“[F]or me, this is especially meaningful. I was telling my staff, a lot of my life started about a mile from around here. My mother and father met probably a couple hundred yards from here. It’s true. I went to school about a mile from here. I was actually born about a mile from here. My grandmother and my grandparents lived most of their lives a short way away from here.

“And so since Malia was born, since my oldest child was born, I’ve brought them here every Christmas for the last 18 years now. And I want to make sure that when  they’re bringing their children here, or their grandchildren here, that they are able to appreciate the wonders and the beauty of this island and of the Pacific, and every island.”

Obama planned to visit Midway Atoll on Thursday. While there, the President is to see some of the ocean territory included in a marine national monument he expanded  an executive order issued last week.

 

Congressmen urge Obama administration to finalize ESA listing of African lion

The leading Democrat on the U.S. House of Representatives committee that oversees wildlife matters has urged the Obama administration to finalize the listing of the African lion under the Endangered Species Act.

The request, which was joined by 49 other House Democrats, came in the aftermath of a highly publicized killing of a famous individual of the species in Zimbabwe by an American trophy hunter.

Rep. Raul Grijalva (D-Ariz.) wrote in a July 30 letter to Interior secretary Sally Jewell and Fish and Wildlife Service director Daniel M. Ashe that “the actions of Walter James Palmer are a good reminder of the peril the African lion faces.”

Palmer, a Minnesota dentist, is alleged by the Zimbabwe Conservation Task Force to have shot and killed a lion named Cecil, famous for his black mane and a well-known tourist attraction at Hwange National Park, on July 1 after first impaling the big cat with an arrow shot from his bow.

The African lion is estimated to occupy less than 20 percent of its historic range, according to a 2012 paper in PLOS One. Image of lioness and lion in Etosha National Park, Namibia courtesy Wikimedia.
The African lion is estimated to occupy less than 20 percent of its historic range, according to a 2012 paper in PLOS One. Image of lioness and lion in Etosha National Park, Namibia courtesy Wikimedia.

Palmer’s guides lured Cecil outside the boundaries of the national park, according to a USA Today report that cites a statement from the Zimbabwe Conservation Task Force and a statement by the Zimbabwe Parks & Wildlife Management Authority.

Trophy hunters account for at least 600 African lion deaths each year, according to a 2009 report by the International Union for the Conservation of Nature.

There may be as few as about 32,000 individuals of the species remaining in their habitat in sub-Saharan Africa.

“Lion numbers have declined precipitously in the last century,” concluded one 2013 paper that examined the species population and range. “Given that many now live in small, isolated populations, this trend will continue.”

Grijalva, the ranking member of the House Natural Resources Committee, suggested in his letter to Jewell and Ashe that an ESA listing would be likely to pressure countries that permit trophy hunting to prepare effective conservation plans for the African lion.

“As a conservation leader, the United States must send a clear message that we will not tolerate hunts in countries without a sustainable, science-based lion management plan, or in circumstances that do not benefit the conservation of the species,” the Arizona congressman wrote.

The Fish and Wildlife Service proposed in Oct. 2014 to list Panthera leo leo as a threatened species. Section 5 of the ESA requires the agency to finalize a listing within 12 months.

Obama administration rejects petition to list gray wolf

The gray wolf (Canis lupus) is hunted in several western states. Photo courtesy U.S. Fish & Wildlife Service, photo by Gary Kramer.
The gray wolf (Canis lupus) is hunted in several western states. Photo courtesy U.S. Fish & Wildlife Service, photo by Gary Kramer.

The U.S. Fish and Wildlife Service has turned away an attempt to secure Endangered Species Act protection for all gray wolves in the country.

In a Federal Register notice published July 1, the agency said that a petition to classify Canis lupus as a threatened species throughout the country did not provide enough scientific support to justify the move.

“We are disappointed in the Fish and Wildlife Service’s decision not to consider this middle-ground approach to wolf management,” Michael Markarian, a spokesperson for the Humane Society of the United States, said in a statement. “A threatened listing is a reasonable compromise to this contentious issue, and it retains some federal protection for wolves, while providing more flexibility to the states in dealing with the occasional problem wolf.”

HSUS, along with 21 other animal welfare and environmental organizations, had asked FWS in January to designate the gray wolf as a threatened species under the Endangered Species Act.

The petition argued that hunting of gray wolves, especially in several western states, is likely to undermine recovery goals for the species.

Gray wolves are classified as endangered in much of the nation, but not in the states where most of their habitat actually exists. In Idaho, Montana, Oregon, and Washington the species is not protected by the ESA.

Bush-era mining rule struck down

A federal district judge has ruled that the administration of former President George W. Bush violated the Endangered Species Act when it weakened a mining regulation in a way that allowed streams and rivers in Appalachia to be filled with debris from mountaintop removal.

The court held Thursday that the Office of Surface Mining Reclamation and Enforcement, an agency of the U.S. Department of Interior, should have consulted with the U.S. Fish & Wildlife Service about the impact of the change to the regulation on endangered and threatened wildlife in Appalachia.

“Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota, OSM’s determination that the revisions to the stream protection rule encompassed by the 2008 [r][ule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion,” Judge Barbara Rothstein wrote.

Issued under the authority of the Surface Mining Control and Reclamation Act, the principal federal law affecting coal mining, the 2008 regulation replaced a prior regulation that had been in effect since 1983. Under the earlier Stream Buffer Zone Rule, mining companies could not obtain a waiver allowing the deposit of debris into streams or rivers unless the discharge would “not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.”

The 2008 regulation eliminated that constraint on OSM’s discretion to grant a waiver, substituting for it language that allowed much more latitude to lower the water quality of Appalachian streams and rivers: “The permit application must demonstrate, and the regulatory authority must find, that avoiding disturbance of the stream is either not reasonably possible or not necessary to meet the fish and wildlife and hydrologic balance protection provisions of the regulatory program.”

The Bush-era regulation also exempted certain mining activities from water pollution limitations altogether, including the diversion of streams and the construction of excess spoil fills, if OSM concluded that “avoiding disturbance of the stream is not reasonably possible.”

The term “spoil fill” refers to the mound of soil, rock, and other debris removed from the mining area in order to open up access to the material sought.

The goal of mountaintop removal mining is the removal of coal.

Judge Rothstein rejected an argument by the National Mining Association that OSM could rely on a 1996 biological opinion by FWS that determined the agency’s regulations  would not be likely to harm species listed under the ESA.

She also refused to remand the 2008 regulation to OSM, which would have enabled it to remain in effect while consultation with FWS occurred, holding instead that the regulation must be vacated. That decision means that OSM will have to start its rulemaking process over again if the Obama administration determines that it wants to loosen the constraints imposed by the 1983 regulation.

The 2008 OSM regulation struck down Thursday was a “midnight rule,” one of many regulations proposed and finalized by the Bush administration during the weeks between President Barack Obama’s election and his inauguration on Jan. 20, 2009. It went into effect just eight days before Obama took office.

A study of the environmental impacts of mountaintop removal mining completed by the U.S. Environmental Protection Agency in 2005 concluded that the practice buried or damaged almost 2,000 miles of Appalachian streams and rivers since the mid-1970s.

The case is National Parks Conservation Association v. Jewell, No. 09-00115.

Steller sea lion population to be removed from threatened species list

For only the second time in the history of the Endangered Species Act, the National Oceanic & Atmospheric Administration has removed a species from the list of threatened and endangered species.

The agency announced Wednesday that the eastern population of Steller sea lions, which roams the Pacific Ocean close to shores from northern California to southeast Alaska, will lose ESA protection.

“We’re delighted to see the recovery of the eastern population of Steller sea lions,” Jim Balsiger, administrator of NOAA Fisheries’ Alaska Region, said. “We’ll be working with the states and other partners to monitor this population to ensure its continued health.”

According to a March 2008 recovery plan, de-listing of the eastern population would occur if it grew at an average annual rate of three percent for 30 years. That recovery plan asserted a pace of growth equal or greater to that rate since the 1970s.

NOAA said in a statement that, as of 2010, there were more than 70,000 individuals in the eastern population of Steller sea lions.The endangered western population has not only failed to experience anything approaching consistent growth in size, but lost about three-quarters of its size between the late 1970s and the late 1990s.

The estimated census of the combined populations exceeded 250,000 during the 1950s.

De-listing of the population of Eumetopias jubatus nearest to the historic spawning grounds of imperiled Pacific salmonid species will give federal and state agencies more flexibility to kill the animals, which are especially prone to eat salmon migrating up the Columbia River.

The population will remain protected by the Marine Mammal Protection Act. However, a federal appeals court ruled Sept. 27 that the MMPA would not be violated if slightly fewer than 100 sea lions per year are killed below Bonneville Dam as a way of protecting migrating anadromous fish.

Steller sea lions were first listed under the ESA in Nov. 1990. The eastern population and its western counterpart, which is found roughly from central and southwestern Alaska west to Russia, was recognized in May 1997.

Graphic courtesy NOAA Fisheries.

De-listing of the eastern population of Steller sea lions takes effect Nov. 22.

NOAA removed a population of gray whales from the list of threatened and endangered species in 1994.

Photo courtesy NOAA Fisheries.

DC Circuit upholds polar bear listing under ESA

A federal appeals court ruled last week that the U.S. Fish and Wildlife Service properly listed the polar bear as a threatened species under the Endangered Species Act.

The court rejected a challenge by the state of Alaska and extractive industry interests to a 2008 decision by the George W. Bush administration.

Environmental conservation advocates welcomed the decision by the U.S. Court of Appeals for the District of Columbia Circuit.

Climate change, habitat degradation and pollution already have polar bears on thin ice. Trophy hunting only exacerbates an already dire situation,” Jeff Flocken, a spokesperson for the International Fund for Animal Welfare, said in a statement. “Today’s decision to keep the status of the polar bear as threatened is an important step in the fight to safeguard the species against trophy hunting.” 

Federal administrative law gives judges little room to second-guess scientific determinations by agencies.

The scientific basis for listing the polar bear as a threatened species is that the species requires Arctic Ocean sea ice for habitat, that the quantity of that ice during the summer months is being reduced as the planet’s atmosphere and oceans warm, and that the loss of seasonal sea ice could result a risk that the polar bear will go extinct.

The litigants did not argue that these scientific predicates for the listing decision are incorrect. Instead, the legal arguments essentially amounted to claims that FWS did not correctly conclude that the undisputed scientific facts should lead to a listing decision, or a listing of all polar bear populations; that FWS did not give enough weight to other programs to conserve the species; and that, in any case, the agency did not provide a sufficient explanation for its actions.

The polar bear was added to the federal list of threatened and endangered species after more than three years of evaluation prompted by a Feb. 2005 listing petition.

The District of Columbia Circuit’s resolution of the legal fight over whether the polar bear was properly listed as a threatened species does not end all ESA litigation relating to the species. A federal district court recently held that FWS erred in its designation of critical habitat for the polar bear.

Montana governor signs bill banning hunting buffer zones for wolves around national parks

There will be no buffer zone around Yellowstone National Park in which wolves cannot be hunted, at least not if Montana has anything to say about it.

A bill that forbids Montana’s wildlife management agency from establishing such zones for the Rocky Mountain gray wolf was signed into law Wednesday by Gov. Steve Bullock.

The legislation takes away a tool that Montana Fish, Wildlife and Parks considered using to limit the killing of wolves that were collared as part of a federal study. At least nine individual collared wolves that either lived in Yellowstone or recently migrated out of the park were killed in 2012.

The director of Yellowstone National Park had sought the buffer zone to assure the stability of packs that reside primarily in the federal preserve.

A state court judge had refused to allow the Montana Wildlife Commission to impose a wolf hunting buffer zone, enjoining such a step in an order issued last month.

Wolf populations inside Yellowstone have declined by about 25 percent since hunting of the iconic animal resumed in the northern Rockies several years ago.

HB 73 will continue to allow MFWP to close areas to wolf hunting if a quota has been met.

The bill also lowers the cost of a wolf hunting permit from $350 to $50 and allows hunters to obtain more than one wolf permit. It also opens the door to the use of simulated wolf calls as a way to lure the animals closer to a shooter.

HB 73 goes into effect immediately, which means it will likely have a quick impact on the number of Rocky Mountain gray wolves killed in Montana. The wolf hunting season in the Treasure State is underway now.

Hunting of the wolf in Montana became legal in 2011 after President Barack Obama signed legislation that included a provision removing the individuals of the species in Montana, Idaho, and portions of Oregon, Utah, and Washington from the Endangered Species List.

According to the environmental protection advocacy group Predator Defense, at least 1,000 individual wolves in Idaho, Montana, and Wyoming have been killed since that decision.

Of that number, 582 wolves have been killed in Idaho, 346 have been killed in Montana, and at least 74 have died at hunters’ hands in Wyoming.

The Obama administration acted on its own to remove ESA protection from Wyoming gray wolves last year.

That total does not include several hundred more wolves killed in the northern Rockies, along with Wisconsin and Minnesota, by the U.S. Department of Agriculture’s Wildlife Services branch and other government predator killing programs.