D.C. Circuit Permits Challenge to Northern Spotted Owl Critical Habitat Designation

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Carpenters Industrial Council v. Zinke, No. 15-5304, 2017 U.S. App. LEXIS 6175 (D.C. Cir. Apr. 13, 2017).

In 2012, the USFWS issued a final rule designating 9.5 million acres of federal forest lands in California, Oregon, and Washington—an area twice the size of the state of New Jersey—as critical habitat for the northern spotted owl, making it effectively off-limits for timber harvesting.  The northern spotted owl is a threatened species under the Endangered Species Act, which makes it necessary for the Agency to designate critical habitat for it.  Several lumber companies that obtain timber from those forest lands challenged the designation through a trade association, the Carpenters Industrial Council.

The threshold issue was whether the plaintiff had standing to sue on behalf of its members.  The D.C. Circuit unanimously reversed the lower court’s decision, and remanded the case for further proceedings, holding that standing existed because the Plaintiffs had” demonstrated a substantial probability that the critical habitat designation will cause a decrease in the supply of timber from the designated forest lands,” and stating that plaintiffs would “suffer economic harm as a result of the decrease in timber supply from those forest lands.”

In its opinion, the court explained that it used what it called the “common sense” approach to determine whether the plaintiff had demonstrated economic harm.  The court applied a three-part test to consider whether there was a substantial probability that: (1) the challenged action would cause a decrease in supply of raw material from a source; (2) the plaintiff’s member manufacturers obtain raw material from that source; and (3) the plaintiff’s members will suffer economic harm from a decrease in the supply of raw material from that source.

The April 2017 decision means that the parties and the lower court may proceed to the merits of the case.  The Service’s request for rehearing was denied on June 29, 2017 and the District Court is now considering motions to intervene filed on both sides of the case.  See Carpenters Industrial Council et. al. v. Zinke, Case No. 1:13-cv-00361-RJL (D. D.C.).

Significance of the case:

The district court’s decision is notable because it suggests that one of the significant factors in its decision was the size of the area affected by the designation.  In its opinion, the court repeatedly noted the large area of the critical habitat designation (twice the size of New Jersey) and the significance of designating so much land.

Related Resources:

Fifth Circuit Considers USFWS and NMFS’ Revisions to Critical Habitat and Adverse Modification Definitions

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Alabama et al. v. National Marine Fisheries Service et al., No. 1:16-cv-00593 (S.D. Ala. Nov. 29, 2016)

On November 29, 2016, eighteen states* filed suit in the Southern District of Alabama challenging two new rules finalized by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) in February 2016.  Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 FR 7414 (Feb. 11, 2016), and Interagency Cooperation – Endangered Species Act of 1973, as Amended: Definition of Destruction or Adverse Modification of Critical Habitat, 81 FR 7214 (Feb. 11, 2016).  The new rules update critical habitat regulations under Section 7 the ESA and respond to Executive Order 13563, which directs agencies to review their existing regulations to modify and /or streamline them.  The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA.  Section 7 requires federal agencies to consult with the Services to ensure that any federal action, including the issuance of permits, is not likely to “result in the destruction or adverse modification” of any species’ habitat.

In their challenge, the Plaintiff States argued the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas not currently occupied by threatened or endangered species as critical habitat.  Previously, the Agencies could only consider unoccupied habitat if they decided that the species would not recover without it.  The States also asserted the Services must explain how unoccupied areas can be “essential” to the conservation of a species.  Finally, the Plaintiffs challenged the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.

On September 12, 2017, the court granted Defendants’ Third Motion to Continue Stay of the Proceedings, which stayed the case until November 10, 2017.  Defendants’ response to the amended complaint is due December 1, 2017 and responses to the motion to intervene filed by Coastal Conservation League, Black Warrior Riverkeeper, Inc., and Defenders of Wildlife is due on December 1, 2017.

*The Plaintiff states include Alabama, Arkansas, Alaska, Arizona, Colorado, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Carolina, Texas, West Virginia, Wisconsin, and Wyoming.

Significance of case:

This case could significantly impact the scope of critical habitat designations and how climate change is considered in making such designations.

Related Resources:

NMFS Defines Critical Habitat for Atlantic Sturgeon

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Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population of Atlantic Sturgeon, 82 FR 39229 (Aug. 17. 2017)

On August 17, 2017, NMFS published its final designation of critical habitat for five distinct populations segments (DPS) of Atlantic Sturgeon.  Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population of Atlantic Sturgeon, 82 FR 39229 (Aug. 17. 2017).  The designation concludes a process that took almost five years and involved a legal challenge and ultimately, a court order.  The five DPS of Atlantic Sturgeon were listed in 2012 as either endangered or threatened.  Once a species is listed, the relevant agencies must identify critical habitat for the species.  Under the ESA, impacts to critical habitat must be evaluated in federal permitting actions, in addition to impacts to the species itself.  In March 2014, two NGOs filed a lawsuit alleging the NMFS had violated the ESA by failing to issue proposed and final rules designating critical habitat for the DPSs.  The parties settled the case, and, pursuant to the court-ordered agreement, NMFS submitted proposed rules for the critical habitat designation on May 30, 2016.  The Final Rule became effective on September 18, 2017.

The Final Rule designates over 3,900 river miles along the east coast as critical habitat.  The Agency chose these areas based on the presence of “physical or biological factors” (PBFs) essential for the conservation of the species and that may require special management considerations or protection.  Notably, this critical habitat designation is based on the new critical habitat regulations finalized in February 2016.  These regulations instruct the agencies to identify habitats with sufficient PBFs to promote the recovery of a species in addition to promoting its survival.  Once a critical habitat is designated, a project’s impacts cannot “appreciably diminish” the PBFs within the habitat.  Many believe these regulations could result in critical habitat designations that extent beyond the traditional scope, and that require more mitigation and avoidance.

In the rule, NMFS defines the conservation objectives for all five DPSs.  These conservation objectives include:

  • Facilitating increased successful reproduction and recruitment to the marine environment
  • Increasing the abundance of the DPS by facilitating increased survival of all life stages and facilitating adult reproduction and juvenile and subadult recruitment into the adult population,

The objectives are supported by protecting specific PBFs tailored for the different populations of the sturgeon.  Any project affecting the Atlantic sturgeon’s critical habitat must avoid altering the identified PBFs.

It is notable that NMFS exercised its discretion under Section 4(b)(2) of the ESA not to designate certain unoccupied areas as critical habitat, concluding that “the benefits of exclusion (that, is avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation.”  82 FR 39229.  This decision was a departure from the proposed rule, which proposed to designate areas of unoccupied areas in the Santee-Cooper river system and the Savannah River as critical habitat.

Significance of this rule:

This is the first critical habitat designation issued by the Trump Administration.  Although it complied with the new critical habitat regulations, the final rule deviates significantly from the proposed rule by avoiding designating unoccupied areas.  Nonetheless, a significant area along the east coast has been designated as critical habitat, which will impact the scope of review for projects requiring federal permits in these areas, including most projects that take place in water, since those projects commonly require a permit from the U.S. Army Corps.

Related Resources:

Changes to Definitions of “Adverse Modification” and “Critical Habitat”

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Alabama et al. v. National Marine Fisheries Service et al.

In February 2016, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) finalized revisions to their joint regulations defining “adverse modification” and “critical habitat” under Section 7 of the ESA.  For more information on the Section 7 Consultation Changes, you can find a more detailed discussion on the Permitting and Project Development page In November 2016, eighteen states filed suit in the Southern District of Alabama challenging the definitions in the new rules.  A more complete discussion of the case, Alabama et al. v. National Marine Fisheries Service et al., and the current status, can be found on the Litigation page.

Ninth Circuit Upholds NMFS’ ESA Listing Decision Based on Climate Change Modeling

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Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002 (9th Cir. Oct. 24, 2016)

On October 24, 2016, the Ninth Circuit overturned a lower court’s decision regarding National Marine Fisheries Service’s (NMFS) authority to use long-term climate projections to justify listing the Pacific bearded seal (erignathus barbatus nauticus) as threatened.  While the lower court—the United States District Court for the District of Alaska—had concluded that using such long-term climate projections amounted to “hollow speculation,” the Ninth Circuit held instead that the models on which NMFS relied “reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future.”  Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002, 16 (9th Cir. Oct. 24, 2016).  Moreover, according to the court, the administrative record demonstrated a “reasonable evidence-based justification” for these predictions.

Originally, several parties including the Alaska Oil & Gas Association, the State of Alaska, and the North Slope Borough, filed an administrative action challenging the NMFS’ decision and claiming it violated the Administrative Procedure Act (APA).  More specifically, the plaintiffs argued that:

  1. Instead of using climate projections to the year 2050, as had been its typical practice, the NMFS arbitrarily included longer-term climate projections;
  2. The NMFS failed to provide an evidence-based explanation for the relationship between habitat loss and the species’ survival; and
  3. The NMFS failed to demonstrate that the impact of climate change on the species “will be of a magnitude that places the species ‘in danger of extinction.’”

Following the Ninth Circuit’s decision in October 2016, the Alaska Oil & Gas Association filed a Petition for a Writ of Certiorari with the United States Supreme Court on July 21, 2017 (No. 17-118).  The State of Wyoming and Alaska Federation of Natives filed amicus briefs on August 21, 2017.  On October 26, 2017, the Supreme Court issued an Order further extending time to file responses to the Petition for Writ of Certiorari until November 27, 2017.

Significance of the case:

In its decision, the Ninth Circuit stated: “This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?”  By answering this question in the positive, the Ninth Circuit may have opened the door to allow a considerable number of otherwise currently healthy species to listing under the ESA based on long-term projections based on a sizeable number of potentially speculative assumptions.

Related Resources:

  • Ninth Circuit Decision – Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002, 16 (9th Cir. Oct. 24, 2016)