There has been a flurry of year-end activity regarding the Endangered Species Act (ESA). First, the Bureau of Land Management (BLM) released Final Environmental Impact Statements (EIS) and proposed plan amendments to loosen certain restrictions for Greater Sage-Grouse management on federal lands. The proposed changes refine the management plans adopted in 2015, which were developed to avoid listing the Greater Sage-Grouse under the ESA. This is a critical issue for the energy industry, as the listing of the species could potentially restrict energy and other development throughout the West. Second, the U.S. Supreme Court issued an important decision that may make it more difficult for the U.S. Fish and Wildlife Service (FWS) to designate critical habitat for endangered species.

Final EISs Issued for Sage Grouse Plan Amendments

On December 6, BLM released Final EISs and proposed plan amendments for Greater Sage-Grouse management for BLM-managed lands in Colorado, Idaho, Oregon, Nevada, California, Utah, and Wyoming. The proposed changes amend the 2015 management plans, which were developed to provide support for avoiding the listing of the Greater Sage-Grouse under the ESA. Entities across the West had worked together for years to come up with the collaborative 2015 conservation plans, so it was a surprise to many when Secretary Ryan Zinke decided to revisit the plans.

In keeping with Secretary Zinke’s commitment to work closely with states, BLM claims the amendments better align resource management plans with state conservation plans. Deputy Secretary of the Interior David Bernhardt stated: "We know the successful conservation of the Greater Sage-Grouse requires the shared stewardship vision of the states, private citizens, landowners, and federal land management agencies including those within the Department of the Interior."

For example, in Utah, the proposed amendments would add exceptions to the No Surface Occupancy stipulation on energy leases in non-habitat areas; allow disturbance or density caps to be exceeded when improved outcomes for habitat are expected; and clarify the process of identifying “essential habitat” during coal leasing. The proposed amendments would also open 14,220 acres of BLM-managed lands to off-highway vehicles. BLM developed the changes in collaboration with Utah Governor Gary Herbert, who stated: “This is a great example of federal leaders listening to state leaders, valuing their expertise, and changing their plans based on that input.”

The Final EISs also address the National Environmental Policy Act (NEPA) issues remanded to BLM by the U.S. District Court for the District of Nevada in a 2017 decision.

Publication of the Final EISs and proposed amendments in the December 7, 2018 Federal Register initiates a 30-day protest period, which will run through January 8, 2019. The Governors of the states at issue also have 60 days to review the proposed amendments for consistency with state and local law. The process will conclude with a Record of Decision (ROD) following resolution of any protests received during the review period.

US Supreme Court Remands Dusky Gopher Frog Habitat Decision

On November 27, the U.S. Supreme Court unanimously held that only “habitat” may be designated as “critical habitat” under the ESA, and remanded the FWS’s critical habitat designation decision to the Fifth Circuit. The Weyerhaeuser Co. v. U.S. Fish and Wildlife Service case relates to FWS’s designation of 1,544 acres of private property in Louisiana as critical habitat for the endangered dusky gopher frog. No dusky gopher frogs currently occupy the property, and the property in its current condition cannot serve as habitat for the frog. FWS nonetheless designated the property as critical habitat for the species because modifications could allow the property to support a sustainable population. Rejecting the Fifth Circuit’s holding to the contrary, the Court held that the ESA does not authorize FWS “to designate [an] area as critical habitat unless it is also habitat for the species.” The Court sent the case back to the Fifth Circuit to consider whether the ESA’s definition of “habitat” may include areas that would require some degree of modification to support a particular species.

The Court also held that FWS’s determination of whether to exclude property from a critical habitat designation based on economic or other factors is subject to judicial review. FWS has historically maintained that it enjoys full discretion on whether to exclude property from a critical habitat designation based on economic considerations. The Court held that a federal court may review FWS’s economic analysis and determination, and remanded to the Fifth Circuit to determine whether the FWS’s assessment was proper.

The implications of the Court’s holding will depend on how these issues are resolved by the Fifth Circuit, but the opinion may make it more difficult for FWS to designate critical habitat in the future, and may also provide litigants with more opportunities to challenge future designations.

State of Wyoming Appeals Decision Rejecting Grizzly Bear Delisting

On December 5, the State of Wyoming filed a Notice of Appeal with the Ninth Circuit challenging a September 2018 ruling by a Montana federal court that vacates FWS’s 2017 decision to delist from ESA protection the Greater Yellowstone Ecosystem population of grizzly bears. This litigation has generated a high level of public interest across the country, receiving significant attention from hunters, ranchers, conservationists, and animal rights activist, among others.

Wait Continues for ESA Regulatory Revisions

The watch continues for FWS and the National Oceanic Atmospheric Administration (NOAA) to finalize proposed changes to ESA regulations that are aimed at improving reliability and regulatory efficiency. Proposed rule changes were published in July 2018 and the agencies accepted comments until September 24, 2018. The agencies’ proposals include:

-- revising procedures for designating critical habitat by reinstating the requirement that the agencies will first evaluate areas currently occupied by the species before considering unoccupied areas;
-- clarifying when agencies may determine unoccupied areas are essential to the conservation of the species;
-- clarifying that decisions to delist a species are made using the same standard as decisions to list species, i.e. whether a species meets the ESA’s definition of endangered species or threatened species;
-- rescinding the FWS blanket rule under ESA section 4(d) to automatically convey the same protections for threatened species as for endangered species; and
-- clarifying the Section 7 interagency consultation processes.

While FWS and NOAA have not yet signaled when the final rules will be issued, it would not surprise us to see a final rule in place by Q1 2019.

Source: Lexology

John Stewart
Vice President, BlueRibbon Coalition