1. Damien M. Schiff Pacific Legal Foundation ENDANGERED SPECIES ACT: ENDANGERED SPECIES ACT: RECENT DEVELOPMENTS

2. Nuts and Bolts Endangered: “any species which is in danger of extinction throughout all or a significant portion of its range” Threatened: “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” Species: “includes any subspecies of wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature”

3. Nuts and Bolts, cont. Listing The present or threatened destruction, modification, or curtailment of habitat or range Overutilization for commercial, recreational, scientific, or educational purposes Disease or predation Inadequacy of existing regulatory mechanisms Other natural or manmade factors affecting the species’s continued existence

4. Nuts and Bolts, cont. Critical habitat Specific areas within the geographical area occupied by the species [at the time of listing] on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management consideration or protection. Specific areas outside the geographical area occupied by the species [that] are essential for the conservation of the species

5. Nuts and Bolts, cont. Consultation All federal agencies shall... utilize their authorities in furtherance of the purposes of [the Act] by carrying out programs for the conservation of endangered species and threatened species Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any [listed] species or result in the destruction or adverse modification of [critical] habitat

6. Nuts and Bolts, cont. Prohibition of “take” Means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct” Generally, no person may take an endangered species (N.B. most take protections have been extended to threatened species by regulation) Exceptions for incidental take statements, 16 U.S.C. 1536(o) and habitat conservation plans, 16 U.S.C. 1540(a)(1)(B).

7. Listed species in Kansas Gray bat American burying beetle Whooping crane Neosho madtom Plover Arkansas River shiner Topeka shiner Spectaclecase mussel Pallid sturgeon Least tern Mead’s milkweed Western prairie fringed orchid

8. The ESA and Global Warming Naturespicsonline.com (Alan D. Wilson)

9. Polar Bear Litigation What is the foreseeable future? Plaintiffs contend that climate science is too uncertain to predict polar ice conditions 45 years hence Feds say that climate science is good enough and that 45 years covers three polar bear generations Court rejects a “bright-line rule of foreseeability,” upholds 45-year standard as based on “reasoned judgment” relying on best available science; no need to use a “more foreseeable” period

10. Polar Bear Litigation What is a reliable model? Plaintiffs argue that population models falsely correlate 1:1 of loss of sea ice to population decline, and are too preliminary Feds argue that the listing doesn’t depend on just 2 models but on the entire record, and that Feds acknowledged and accounted for models’ shortcomings Court okays models because no better model available, their weaknesses were acknowledged, and they are “rationally related” to the reality they seek to depict Query: should the plaintiffs use a “substantial evidence” objection instead?

11. Polar Bear Litigation Is climate change science inherently unreliable? Plaintiffs contend that climate science is “inherently unpredictable” Feds argue that scientific certainty not required Court holds that Feds can use “quite inconclusive” science so long as best available; “particular deference” owed to agency decision-making based on scientific data

12. Polar Bear Litigation 4(d) Rule Challenge 16 U.S.C. 1533(d) authorizes exceptions to “take” prohibition for threatened species Polar bear 4(d) rule exempted activities outside the bear’s range Enviros upset because they could not challenge greenhouse gas emitters in the lower 48 for alleged takes Court overturns 4(d) rule on NEPA grounds only

13. Triggering Section 7 Consultation Predicate of “agency action” Can inaction be action? Karuk Tribe v. United States Forest Service (9 th Cir. 2012): Service’s receipt of a “notice of intent” and decision not to require a plan of operations triggers Section 7 consultation Impacts: stormwater and nationwide permit NOIs under Clean Water Act require Section 7 consultation? Nat’l Ass’n of Home Builders v. Defenders of Wildlife: no obligation to consult if no discretion to act differently How much discretion? Natural Resources Defense Council v. Salazar (9 th Cir. 2012): Renewal of water Service contracts not discretionary

14. Recovery Plans & Delisting ESA Section 4(f) requires the development of a recovery plan for each listed species Can a species be delisted where the recovery plan’s goals have not been met? Friends of Blackwater v. Salazar The Service can delist the West Virginia northern flying squirrel even though the 1990 recovery plan criteria have not been met “A plan is a statement of intention, not a contract. If the plan is overtaken by events, then there is no need to change the plan; it may simply be irrelevant.”

15. “Significant Portion of its Range” Flat-tailed horned lizard: Service cannot ignore threatened portions of the range simply because persistence is likely in other portions Utah prairie dog: loss of historical range cannot be ignored Gray wolf: if a species is listable in a significant portion of its range, it must be listed everywhere (Solicitor General opinion rejected)

16. Draft SPR Policy If a species is listed based on its status in a significant portion of its range, the species wherever found will be protected A portion of range is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction Preference for DPS listing rather than listing throughout the range

17. Exclusions to Critical Habitat Section 4(b)(2) requires the Service to take into account the economic impact of designating critical habitat Section 4(b)(2) also authorizes exclusions if the benefits of exclusion exceeds the benefits of inclusion

18. Proposed 4(b)(2) Policy Economic analysis released in conjunction with proposed critical habitat Economic impact would be assessed using the incremental, not baseline, approach (in conflict with the Tenth Circuit’s decision in New Mexico Cattle Growers) The Service is not required to conduct an exclusion analysis, or exclude any given area

19. www. pacificlegal.org