Monday, October 24, 2011

The Endangered Species Act: Reviewing the Nexus of Science and Policy

A Congressional hearing was conducted recently by the Investigations and Oversight Subcommittee of the Committee on Science, Space, and Technology.  The focus of the hearing was "The Endangered Species Act: Reviewing the Nexus of Science and Policy."  The hearing was convened, at least in part, in response to Judge Oliver Wanger's September 16, 2011, decision in the Delta smelt case, in which he made an express find of bad faith on the part of the United States Fish and Wildlife Service.

According to the Subcommittee's press release,
Witnesses highlighted recent events at the Department of Interior that have called into question how science informs policy related to the ESA.  On September 16, 2011 U.S. District Court Judge Oliver Wanger of California sharply criticized the work and testimony concerning the Delta Smelt Biological Opinion by two Federal scientists, one from the Fish and Wildlife Service (FWS) and one from the Bureau of Reclamation.  Commenting upon the FWS scientist, Judge Wanger stated “I find her testimony to be that of a zealot.”  In further comments about the Bureau of Reclamation scientist, he stated  “…the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.”  Mr. Gary Frazer, Assistant Director , Endangered Species, U.S. Fish and Wildlife Service, announced that the “Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made by Judge Wanger.”
Among the speakers at the hearing was former Assistant Secretary for Fish and Wildlife and Parks in the U.S. Department of the Interior, The Honorable Craig Manson (currently general counsel for Westlands Water District, a client of Kronick Moskovitz Tiedemann & Girard).  Mr. Manson explained:
“Although not intended by the drafters, implementation of the ESA has become a win-lose adversarial process…The politicization of the ESA began at its inception and has carried on through every Administration and Congress since then.”  Manson continued, “When scientists and policymakers don't understand each other, then chaos and strife will reign in their relationships. The ESA exists at the confluence of science, law, and policy.  It is not a purely scientific decision scheme.”
The full text of Mr. Manson's testimony may be found here.

Other speakers at the hearing included:
  • Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law (Testimony)
  • Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service (Testimony)
  • Mr. Douglas Vincent-Lang, Special Assistant, Alaska Department of Fish and Game (Testimony)
  • Dr. Neal Wilkins, Director, Institute of Renewable Natural Resources, Texas A&M University (Testimony)
  • Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists (Testimony)

A video of the hearing may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related story: Court Denies "Fall X2" Motions and Finds Agency Bad Faith

Monday, October 10, 2011

U.S. Fish and Wildlife Service Determines That California Golden Trout Does Not Warrant Protection Under the Endangered Species Act

California’s official state fish, the California Golden Trout, is not an endangered species, according to the United States Fish and Wildlife Service (FWS).  On October 7, 2011, after more than a decade of evaluating the Golden Trout’s status, FWS announced that the species does not warrant protection under the federal Endangered Species Act.

In 2000, Trout Unlimited petitioned FWS to list the Golden Trout as an endangered subspecies, based on concerns regarding habitat degradation, genetic hybridization, and predation.  In 2004, the state and federal fish and wildlife agencies forged a cooperation conservation agreement with interest groups, to address the threats to the Golden Trout.  The agreement provided for habitat restoration projects, decreased cattle grazing, and more studies of the fish.  In concluding that the Golden Trout was not an endangered species, FWS considered the conservation measures and benefits already in place under this agreement.

Additional actions taken under the species’ Conservation Strategy to protect the Golden Trout from genetic dilution and competition were also identified as contributing to the species’ health and population.  FWS concluded that these past conservation actions and continuing commitments provided protection for the Golden Trout, and that an endangered listing was not warranted.

FWS's press release regarding this listing decision may be found here.

For a draft of the Federal Register Notice "Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the California Golden Trout as Endangered," click here.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Friday, October 7, 2011

Court Rejects Lawsuit That Would Have Closed 2011 Sacramento Fall-Run Chinook Salmon Season

On September 30, 2011, the United States District Court for the Eastern District of California rejected a lawsuit filed by the San Joaquin River Group Authority ("SJRGA").  The lawsuit challenged the Pacific Fisheries Management Council's adoption of fishing management measures for Sacramento River fall-run Chinook salmon for the 2011 fishing season and the National Marine Fisheries Service's approval of those  management measures.

In a memorandum decision authored by now-retired Judge Oliver Wanger, the court first dismissed the Pacific Fisheries Management Council as a defendant on the ground that it was not an "agency" within the meaning of the Administrative Procedures Act:

The court next concluded that SJRGA lacked standing to bring such a lawsuit against the National Marine Fisheries Service, describing the failure by SJRGA to prove that the alleged harm from the 2011 management measures was "sufficiently imminent" or that the alleged risk of additional burdens on SJRGA's water rights was causally linked to the 2011 management measures.  The court found that SJRGA failed to demonstrate a likelihood that the challenged action would cause any harm to its members' water rights.

After finding that SJRGA lacked standing, the court went on to consider the merits of the case.  The court rejected SJRGA's arguments that the federal defendants had violated the Magnuson-Stevens Act, National Environmental Policy Act, and Administrative Procedures Act.

The district court's memorandum decision and order in the case, San Joaquin River Group Authority v. National Marine Fisheries Service, et al., Case No. 1:11-CV-00725, may be found here and here, respectively. 

If you have any questions concerning this decision, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Wednesday, October 5, 2011

KMTG Legal Alert: Court Invalidates Urban Development Project EIR For Failing To Disclose And Address Water Supply Uncertainties

In Madera Oversight Coalition, Inc. et al. v. County of Madera (--- Cal.App.4th ---, Fifth Dist., September 13, 2011) (Madera), the Fifth District Court of Appeals provided guidance on completing California Environmental Quality Act review for a major urban development project. The opinion addresses: disclosure of uncertainties regarding water supply; limits on agency discretion in establishing an environmental baseline for analyzing impacts; standards for creating, augmenting and challenging the administrative record; and findings for mitigation of impacts to archeological resources.

In Madera, petitioners challenged the Madera County’s 2008 approval of the mixed-use Tesoro Viejo development project, claiming that its Environmental Impact Report was inadequate. The trial court ruled for the petitioners based on deficiencies in the EIR’s discussion of uncertainties regarding the Project’s water supply. Both sides cross-appealed.

For a detailed discussion of the Fifth District Court of Appeals' ruling on the parties' cross-appeals and the facts of this case, please see the full KMTG Legal Alert here.

A copy of the court's opinion may be found here.

If you have any questions concerning this topic, please contact Janet K. Goldsmith or Eric N. Robinson from our office, or the KMTG attorney with whom you normally consult.

Related story: