Fish and Wildlife Service Agrees to Deadline for Monarch Butterfly Listing Decision

The U.S. Fish and Wildlife Service has agreed to decide by June 30, 2019, whether to list the monarch butterfly under the Endangered Species Act. The agreement is part of a settlement of a lawsuit by the Center for Biological Diversity and Center for Food Safety that sought to obtain a legally binding deadline for the listing decision. Under the settlement agreement, the agency must propose protection for the monarch, deny protection or assign it to the “candidate” waiting list for protection by the June 2019 deadline.

Long-term declines in the overwintering Eastern population of monarch butterflies are significantly increasing the probability that they may become extinct over the next twenty years according to U.S. Geological Survey and Scripps Institution of Oceanography research published earlier this year. The USGS Study, published in the journal Scientific Reports, found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015. Based on this information, the study indicated there is a substantial probability – between 11 and 57 percent – of “quasi-extinction” of the species over the next two decades. A quasi-extinct population is one with so few remaining individuals that recovery is effectively impossible — while the remaining numbers may survive for a short time, the population as a whole will inevitably become extinct.

The monarch’s long, multi-generational journey between central Mexico and the summer breeding grounds in the U.S. and southern Canada is celebrated in all three countries, but gives rise to shared management responsibilities. Previously published research indicates that the most effective way to increase monarch butterfly numbers is to focus on the restoration of their breeding habitat in the northern U.S. and southern Canada. The recent population declines have been primarily attributed to the loss of breeding habitat, particularly in the United States. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed abundance has declined significantly as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.

Thoughts on how individuals and the development community can help restore the monarch’s critical habitat are contained in the accompanying article by Perkins lawyer Laura Godfrey Zagar.

How Developers Can Help Save the Monarch Butterfly (and Why They Should)

The monarch butterfly is heading quickly towards extinction for a simple reason: it does not have enough food to eat on its migration path.

Every fourth generation of this remarkable creature undertakes a migration of up to 3,000 miles to warmer climates such as California, Mexico, and the Gulf Coast until it is time to start a new generation in northern ranges. On their long journey they eat only one plant, milkweed, which used to be common and abundant throughout the country. Use of herbicides and elimination of milkweed in landscaping and agricultural fields have undermined the monarch butterfly’s food sources.

The good news is that, in contrast to many endangered species, whose recovery requires extensive and expensive habitat restoration and preservation, the monarch’s path to recovery is relatively straightforward but requires a simple effort of the collective whole throughout the nation: plant milkweed!

Milkweed is easy to grow, is relatively drought tolerant once established, and has a beautiful array of flowers that would fit in well in many landscapes. I can personally attest that milkweed can be grown by the most challenged gardener, as I now have six plants flourishing in our yard. Our milkweed plants are also a main attraction for children visiting our house, who like to check up on their black and yellow striped caterpillar friends. Many nurseries are now stocking milkweed suitable for the local climate, but you can also find them online, including through Annie’s Annuals, and have plants and seeds shipped directly to you.

Why should the development community care about the plight of the monarchs? The U.S. Fish and Wildlife Service just entered into a binding agreement to decide by June 2019 whether to list the species on the Endangered Species Act. The ramifications of a potential listing of the monarch could be significant for projects of all sizes – from the largest infrastructure project to the smallest residential development. The Endangered Species Act is considered the “bulldog” of the environmental laws. It prohibits any person from committing a “take” of a listed species, which is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” While permits are available for incidental take of a listed species, the permitting process can take months and even years to complete, and often requires costly conservation measures to mitigate for potential impacts to a species. Violations of the statute can result in potential criminal and civil penalties. Of greater concern is the highly-protective injunction standard that tips the balance towards conservation of the species, and which is often used by project opponents to stop controversial projects while a lawsuit challenging the project is pending.

Based on the monarch butterflies’ extensive range throughout the nation, the possible consequences on the development community of a listing are vast. There is potential habitat in nearly every region of our country, and take of a monarch butterfly could be likely to occur on a broad range of development projects. The challenges that the wind industry have faced along the long migration path of the endangered whooping crane demonstrate how challenging preservation of a migratory species can be.

Thus, the development community should join the fight and coordinate efforts with federal, state, and local agencies to encourage the cultivation of milkweed needed to support a thriving monarch population along the migration route. Indeed, a memorandum of understanding was just inked by officials from Minnesota, Iowa, Missouri, Kansas, Oklahoma, Texas, and the federal government to improve the monarch habitat along Interstate 35, and to develop a branding campaign to informally name it the “Monarch Highway.”

Options for bettering monarch habitat include the use milkweed in landscaping for parks, housing developments, and commercial areas. Developers could also think more creatively, such as raising awareness of the need for milkweed in the agricultural community or offering free milkweed plants in key communities along the migration route for residents interested in cultivating the plants at their homes. The Fish and Wildlife service has a website with details, photos and information on how developers, individuals and communities can get involved.  While such efforts may not eliminate all the threats to the monarch butterfly, they could go a long way in reversing the downward trend of the species to avoid a listing under the Endangered Species Act.

Quieting title to groundwater rights does not necessarily require quantification of prescriptive losses

The Sixth District Court of Appeal has ruled that a judgment quieting title to overlying rights to groundwater in times of basin surplus does not require quantification of the specific amount of prescriptive rights that may previously have been established against each overlying landowner.  City of Santa Maria v. Adam, et al., No. H041133 (Sixth Dist. June 24, 2016).

As part of a broader groundwater basin adjudication, owners of land overlying the Santa Maria Valley Groundwater Basin sought a judgment quieting title to their overlying water rights as against the City of Santa Maria and other public water appropriators. The trial court had previously found that certain of the appropriators had acquired prescriptive rights to groundwater, in specified quantities, as against the landowner group. However, it rejected the landowners’ argument that the judgment necessarily needed to quantify the prescriptive right  as against each landowner.

The appellate court agreed, concluding that where a groundwater basin is in a condition of surplus, a judgment quieting title need not quantify the proportionate share of prescriptive loss attributable each landowner. The prescriptive rights acquired by each municipal purveyor had been quantified by the trial court. These rights had been acquired during a period several decades earlier during which the groundwater basin had been in a condition of temporary overdraft. At the time plaintiffs sought to quiet title, however, it was undisputed that the basin was in a condition of surplus — i.e., there was sufficient groundwater for the reasonable and beneficial needs of both overlying parties and appropriators.

Under these circumstances, the court concluded, there was no need to quantify the specific prescriptive loss attributable to each overlying user in order to quiet title. The appropriators’ prescriptive rights were established against the aquifer as a whole, not just against the specific landowners’ overlying rights. The fact that such prescriptive rights had been acquired had no practical effect in times of surplus — the landowners would not have been able to enjoin parties from appropriating water, regardless of whether or not those parties had obtained prescriptive rights. It would only be in times of overdraft that prescriptive rights would become pertinent. Because overlying rights are both correlative and based on reasonable and beneficial use, they may change over time. In times of future overdraft, the landowners would be required to determine their proportionate correlative share of basin groundwater rights with other overlying landowners. At that time, the proportionate prescriptive right enforceable against each of the landowners would have to be quantified.  The need did not arise before then.

Indian Gaming Act and NEPA Irreconcilable, Ninth Circuit Rules

The Ninth Circuit has held that the National Indian Gaming Commission’s approval of a tribal gaming ordinance does not require review under the National Environmental Policy Act because there is an irreconcilable conflict between NEPA and the Indian Gaming Regulatory Act.  Jamul Action Committee v. Chaudhuri, No. 15-16021 (9th Cir., June 9, 2016).

The Indian Gaming Regulatory Act provides that before an Indian tribe can conduct gaming on its land, the tribe must first enact a gaming ordinance that describes how the tribe will operate its gaming facilities. The ordinance must then be approved by the Gaming Commission. The Jamul Indian Village (Tribe), a federally recognized Indian tribe in California, enacted a gaming ordinance and obtained Gaming Commission approval, which was challenged for failure to comply with NEPA.

The Ninth Circuit began its analysis by identifying “two circumstances where an agency need not complete an EIS even in the presence of a major federal action and despite an absence of express statutory exemption”: (1) where doing so would create an irreconcilable conflict with the substantive statute at issue; and (2) where a substantive statute displaces NEPA’s procedural requirements. This case, the court concluded, fell into the first category because the Act requires that the Gaming Commission to approve or disapprove a gaming ordinance no later than 90 days after the tribe submits the ordinance, and if it does not approve or disapprove within that time, the ordinance is deemed approved by operation of law. This short time period, the court concluded, was insufficient to accommodate the demands of NEPA review.

In reaching this conclusion, the court first acknowledged that it has been generally reluctant to find a statutory conflict between NEPA and other federal statutes in order not to undermine Congress’ intent that the NEPA apply broadly. There can be no irreconcilable conflict, for example, when a deadline is imposed by the agency rather than by Congress or when “the triggering act for a short statutory time table” is under the agency’s control. An irreconcilable conflict occurs only where Congress has determined the period within which the agency must act and the event that triggers the beginning of the period.

The deadline for approval of a gaming ordinance is imposed by Congress, not the Gaming Commission. Moreover, the event that triggers the 90-day period under which the Commission must act is a tribe’s submission of the ordinance, an event over which the Commission has no control.

After determining that the Act was potentially irreconcilable with NEPA, the court further determined that it would be impossible for the Gaming Commission to prepare an EIS within the Act’s required timeframe. Under previous Ninth Circuit precedent, the court assumed that it takes an agency at least one year to prepare an environmental impact statement. Not standing on precedent alone, however, the court calculated the environmental review timeline based on both statutory and regulatory requirements and concluded that “assuming it takes no time to respond to the public’s views on scope and implementation, prepare a draft EIS, and incorporate public comments into the final EIS, the shortest time frame in which NIGC could prepare an EIS would be one hundred and twenty days.” This, the court held, gave rise to a clear and irreconcilable conflict between the mandatory agency deadline imposed by Congress and NEPA.

Ninth Circuit Upholds BLM’s Approval of Renewable Wind Energy Project

On the heels of a decision nullifying the Bureau of Land Management’s approval of a wind energy project under the National  Environmental Policy Act (reported on here),  the Ninth Circuit rejected a challenge to BLM approval of another wind turbine project, finding it consistent with NEPA, the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.  Protect Our Communities Foundation v. Jewell, No. 14-55666 (9th Cir., June 7, 2016).

Plaintiffs challenged BLM’s decision to grant a right-of-way permitting Tule Wind, LLC, to construct and operate a renewable wind energy project on federal lands in southeastern San Diego County.

Tule Wind’s original project involved the construction of 128 wind turbines and supporting infrastructure. The BLM ultimately granted a right-of-way for a more modest facility, eliminating 33 turbines. In addition, several turbines were repositioned to reduce the risk of avian collisions. The project’s required mitigation measures included an 85-page Avian and Bat Protection Plan, developed in conjunction with the BLM and the U.S. Fish and Wildlife Service.  The plan relied on scientific literature and research studies, including field surveys in the project area conducted by Tule Wind over a period of several years. Plaintiffs nonetheless argued that the project would harm birds in violation of the MBTA and Eagle Act. Plaintiffs also challenged the adequacy of the BLM’s review of the project’s environmental impacts under NEPA.

In affirming the district court rejection of the challenge, the Ninth Circuit concluded that liability under the Migratory Bird Treaty Act does not extend to an agency acting in a purely regulatory capacity. The court held that the Act “does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the ‘take’ of migratory birds within the meaning of [the statute].”  In the court’s view, the BLM merely authorized Tule Wind to construct and operate the project. It therefore did not act to “take” migratory birds within the MBTA’s meaning. For similar reasons, the BLM was not liable for any Eagle Act violations independently committed by right-of-way grantees.

As an alternative argument, plaintiffs claimed the BLM’s action was “contrary to law” within the meaning of the Administrative Procedure Act, since it permitted Tule Wind to engage in otherwise lawful activities that would lead to incidental migratory bird fatalities. The court again disagreed, concluding that the BLM’s regulatory role in this case was too far removed from the ultimate legal violation and therefore could not be independently in violation of the APA.

The Ninth Circuit also rejected plaintiff’s various NEPA claims, determining that (1) the project’s purpose and need statement contained in the Environmental Impact Statement was sufficiently broad, (2) the BLM had discretion to dismiss alternatives for the project, (3) the mitigation measures were sufficiently detailed and contained adequate baseline data, and (4) the EIS took the requisite “hard look” at the project’s environmental impacts.

Court of Appeals Nullifies Environmental Review of Wind Energy Project

Observing that “[r]enewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts,” a Ninth Circuit panel has invalidated the environmental review of a major wind turbine project by the Bureau of Land Management. The court held that the BLM did not adequately consider the project’s impacts on the greater sage grouse because the Environmental Impact Statement failed to assess baseline sage grouse numbers during the winter months. Oregon Natural Desert Association v. Jewell, No. 13-36078 (9th Cir. May 26, 2016).

The greater sage grouse is a relatively large ground-dwelling bird that relies on sagebrush for its survival year-round. As part of the proposed Echanis Wind Energy Project in southeastern Oregon, the BLM selected a transmission line that cut across, in part, the Steens Mountain Cooperative Management and Protection Area, which is located near the center of one of the last remaining strongholds of contiguous sagebrush habitat.

In particular, sage brush habitat is essential for winter survival of sage grouse. The Final EIS acknowledged the project’s potential impact during winter months, but despite the concern, no surveys were conducted to determine if sage grouse were present at the Echanis site during the winter months. Instead, the BLM relied on surveys done at nearby sites and, from those surveys, assumed that no grouse used the Echanis site during winter.

The Ninth Circuit concluded that the BLM had improperly extrapolated data from the nearby surveys rather than conducting a survey at the actual Echanis site to see if sage grouse were present there. The court acknowledged that under NEPA, the establishment of a baseline “is not an independent legal requirement,” but rather a “practical requirement.”  Nonetheless, the court cited several cases finding environmental analyses deficient for failing to establish an environmental baseline. The court also cited the BLM’s own comments on another project, in which the BLM had urged another agency to assess baseline winter sage-grouse populations.

Compounding this extrapolation flaw, the extrapolated data was itself incorrect. Contrary to what the Final EIS stated, four sage grouse in fact were found at the nearby site, and the Final EIS therefore did not comply with NEPA’s requirement to provide “[a]ccurate scientific analysis.” In the court’s view, the fact that some sage grouse were found at the nearby site in mid-winter “greatly undermines the validity of the BLM’s assumed absence of sage grouse at the Echanis site.”

The court held that the Final EIS’s inaccurate data concerning the nearby site “rendered its assumption concerning the winter presence of sage grouse at the Echanis site arbitrary and capricious.” Had the BLM assumed the presence (rather than the absence) of sage grouse at the Echanis site, the site would have been deemed Category-1 Habitat, and the Project would not have gone forward there. Thus, errors in the BLM’s analysis were not harmless, and “materially impeded informed decisionmaking and public participation.”


Fish and Wildlife Service Reissues 30-Year Eagle Take Rule

As we previously reported, in August 2015, a U.S. District Court in San Francisco nullified the U.S. Fish and Wildlife Service’s new rule increasing the length of programmatic permits to “take” bald and golden eagles from 5 years to 30 years.  Shearwater v. Ashe, No.14-CV-02830-LHK (N. Dist. Ca, Aug. 11, 2015). In striking the rule, the court held that the Service had not demonstrated a sufficient basis in the administrative record for its decision not to prepare an EIS or EA and therefore failed to comply with NEPA’s procedural requirements.

The Service subsequently prepared a draft programmatic Environmental Impact Statement (available here) and, on May 6, 2016, issued a new version of the proposed rule. As with the 2013 version invalidated by the District Court, the rule would substantially change how the Service administers its conservation and management program under the Bald and Golden Eagle Protection Act (Eagle Act). The rule would extend the maximum permit term under the Eagle Act from five to 30 years, and change permit criteria and mitigation standards. These proposed changes, if adopted, would impact renewable energy and other project development, particularly in the Western United States. Our full Update on the rule is available here.

Wetlands Jurisdictional Determinations are Final Agency Actions Subject to Immediate Judicial Review

The U.S. Supreme Court ruled yesterday that a wetlands jurisdictional determination by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review.  Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 578 U.S. ___ (2016).  The Supreme Court’s decision resolves a circuit split on the issue, and it has important implications for landowners, developers and regulators. Our full report on the case is available here.

County Board May Not Take Actions That Implement Essential Feature of a Referended Ordinance

When a referendum petition is presented against an ordinance and the board of supervisors decides to “entirely repeal the ordinance” rather than present it to the voters, the board must revoke the challenged ordinance in its entirety and may not take additional action that has the practical effect of implementing the essential feature of the ordinance. County of Kern v. TCEF, 246 Cal.App.4th 301 (2016)

In 2009, the Board of Supervisors of Kern County enacted a zoning ordinance that effectively allowed medical marijuana dispensaries in commercial zoning districts. In 2011, the Board enacted a new zoning ordinance, the Dispensary Ban Ordinance, which banned all medical marijuana dispensaries throughout the county’s jurisdiction. Opponents circulated a referendum petition, and obtained the requisite signatures. The Board responded by repealing the entire chapter of the zoning ordinance that included both the Dispensary Ban Ordinance and the 2009 ordinance allowing dispensaries in commercial zoning districts. The result was that dispensaries were not allowed in any zoning district anywhere in the county.

Elections Code section 9145 requires that when a county board of supervisors is presented with a qualified referendum petition, it must either “entirely repeal the ordinance against which a [referendum] petition is filed” or submit the ordinance to a vote. The court of appeal agreed with Kern County that this language did not necessarily require the county to return all circumstances to the status quo that existed before the Dispensary Ban Ordinance was enacted, and that the county had discretion to take other actions besides repealing the referended ordinance. However, this discretion is limited by the overriding principle that these actions may not have the practical effect of implementing the core element of the challenged ordinance. Continue Reading

Court Blocks Implementation of Level 3 School Fees

A Sacramento Superior Court judge has issued a temporary restraining order barring the State Allocation Board from formally notifying the California Senate and Assembly that state funds for new school facility construction are no longer available. The order, issued yesterday, effectively blocks implementation of Level 3 school fees, which would otherwise have been triggered as a result of the notification.

As we reported yesterday (see State Allocation Board Approves Level 3 Fees), on May 25, the State Allocation Board voted to provide notice to the Senate and Assembly that “state funds for new school facility construction are not available.” Under Government Code § 65595.7, this notice authorizes school districts that have adopted Level 2 fees to increase the fees to a Level 3 rate, which may be up to 200% of the Level 2 fee. Under the State School Facility Program, Level 2 fees are intended to fund 50% of the cost of providing school facilities for new residential development, with the other half paid for from state bond revenues. However, upon a determination by the State Allocation Board that such state funds have been exhausted, the law authorizes school districts to increase their fees to cover the full cost of new facilities. The formal trigger for Level 3 fees is the notice from the SAB to the Senate and Assembly that school facility funds are not available.

The judge’s order barring the SAB from transmitting the notice results from a lawsuit filed by the California Building Industry Association on the same day as the SAB’s action. In the suit, CBIA contends that the SAB erred in concluding that state funds have been exhausted because funds from bonds authorized by the voters in 2006 through Proposition 1D remain available for new school construction. CBIA maintains that the SAB used “creative accounting” to relabel certain funds designated under Proposition 1D for new construction as “seismic repair” funds and concluded that such funds were therefore not available for new construction. This action, CBIA argues, was unlawful both because only the legislature or the voters are authorized to reallocate funds approved for a specific purpose by the voters, and because under Proposition 1D, seismic repair funds are a subcategory of the funds approved for new construction.

The court’s decision is not a ruling on the merits of the CBIA’s claims.  Rather, it is intended to preserve the status quo pending a hearing on CBIA’s motion for a preliminary injunction, set for July 1, 2016.  The restraining order will remain in effect until that hearing, at which time the court will decide whether to extend the bar against the SAB notice pending a trial on the merits, which could be several months away.

In the interim, CBIA, together with the Coalition for Adequate School Housing, a school district-sponsored advocacy group, will continue to campaign for voter approval of a $9 billion school bond initiative on the November 2016 ballot. This initiative, placed on the ballot through the efforts of Californians for Quality Schools — an entity formed by CBIA and CASH — would include $3 billion in new school construction funding, effectively mooting the issue of whether such funds remain from the last bond authorization.