Endangered Species Act (ESA)

On April 8, 2020, the U.S. Fish and Wildlife Service announced the finalization of a Candidate Conservation Agreement with Assurances for the monarch butterfly. Authorized by the Endangered Species Act, a CCAA is a voluntary conservation agreement that addresses the conservation needs of at-risk species before they are listed as endangered or threatened. Under the agreement, more than 45 transportation and energy companies and numerous private landowners will participate in monarch butterfly conservation by providing habitat along energy and transportation rights-of-way corridors on public and private lands across the country. This will provide potentially millions of acres of overwintering habitat for the monarch butterfly with the goal that listing under the ESA will become unnecessary. A Perkins Coie team including Don Baur, Bill Malley, Bob Maynard, Anne Beaumont, Cassie Roberts, Christina Bonanni and Sheri Pais represented the Monarch Butterfly CCAA Task Force, which prepared the CCAA.

As reflected in our earlier report (How Developers Can Help Save the Monarch Butterfly and Why They Should), long-term declines in the population of monarch butterflies have significantly increased the probability that they may become extinct in the near future. A U.S. Geological Survey and Scripps Institution of Oceanography study found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015, indicating a substantial probability of “quasi-extinction” 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 brief time, the population as a whole will inevitably become extinct.

Research indicates that the most effective way to increase monarch butterfly numbers is to focus on restoration of their breeding habitat in the northern U.S. and southern Canada. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed has declined precipitously as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.
Continue Reading U.S. Fish and Wildlife Service Approves Historic Agreement for Protection of Monarch Butterflies

In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.  856 F.3d 1248 (9th Cir. 2017).  A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.

The Biological Opinion

The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat.  The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data.  But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.

In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise.  The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.

Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.

The Ninth Circuit’s Decision

In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding.  The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur.  The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”

The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty.  As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.”  The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”
Continue Reading Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada

The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment. Sierra Club v. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015).

North Sky River Energy developed a wind project on 12,000 acres of private land in the Tehachapi area. North Sky applied to the BLM for a right-of-way across federal lands for an access road to connect the wind farm with a state highway. North Sky could have accessed the highway through a private road, but preferred the access road over BLM land because the private road required substantial grading and would have greater environmental impacts. If the BLM had denied North Sky’s application, North Sky could have pursued the private road option.

After reviewing North Sky’s application and evaluating the potential environmental impacts, the BLM issued an Environmental Assessment concluding that the proposed road project would not have significant environmental impacts. Therefore, the BLM concluded that it need not prepare an Environmental Impact Statement or formally consult with the Fish and Wildlife Service under the Endangered Species Act. The BLM’s determination depended in large part on its finding that the private-road option was a viable alternative to the BLM access road project and thus the wind project had independent utility from the BLM access road project. The BLM issued a permit for the BLM access road project.

Project opponents — the Sierra Club, the Center for Biological Diversity, and the Defenders of Wildlife — alleged that the BLM right-of-way violated the Endangered Species Act and the National Environmental Policy Act (NEPA). The primary basis for the project opponents’ arguments was the theory that the environmental impacts of the BLM access road project should have been considered together with those of the wind project. They argued that when the impacts of the wind project and the access road were considered together, there would be significant impacts requiring the preparation of an Environmental Impact Statement and formal consultation under the Endangered Species Act.
Continue Reading The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context

On July 17, 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation’s renewal of water delivery contracts with senior priority water rights holders was not “agency action” under section 7 of the Endangered Species Act. The panel held that because the Bureau lacked discretion over whether to approve the renewals, there was no duty to consult with the U.S. Fish & Wildlife Service regarding the potential impacts on the delta smelt, an threatened fish species. The panel’s decision is described below, although it may not be cited as precedent, because the Ninth Circuit decided on March 5, 2013, to rehear the case en banc.

If it stands on rehearing, the panel’s decision in NRDC v. Salazar would be a strong counterbalance to the Ninth Circuit’s June 1, 2012, opinion in Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (the subject of our June 12th posting), which adopted an expansive definition of “agency action” under the ESA.

In addition to addressing the “agency action’ issue, the panel decided that environmental plaintiffs groups lacked standing to challenge the Bureau’s decision to renew other water service contracts. The panel reasoned there was no “causal connection” between the renewal of these contracts and possible harm to the delta smelt, as the Bureau retained the authority to protect fish by reducing water deliveries during drought years.

The case is being watched closely for how the decision on rehearing will affect the continuing dispute over water deliveries and delta smelt protection in California’s Central Valley, which has lasted the better part of decade.


The Bureau operates the Central Valley Project, one of the world’s largest water storage and transport systems, which consists of a network of dams, reservoirs, and pumping facilities that provides water for the irrigation of about one-third of California’s farmland. The CVP is managed in coordination with the State Water Project, a companion system operated by the California Department of Water Resources that provides drinking water for 25 million Californians. This federal-state cooperation began in the 1930s when, due to state budgetary constraints, the Bureau assumed control of the CVP. At that time, the Bureau had to obtain water rights under California law in order to operate the CVP. Preexisting water rights owners claimed priority rights to available water. As part of a settlement agreement, the Bureau and those senior water rights owners entered into a series of 40-year water delivery contracts, the “Settlement Contracts”. In addition, the Bureau entered into a series of long-term contracts to deliver water from the CVP to a coalition of non-priority users.

This dispute arose as a result of the Bureau’s renewal in 2004 to 2005 of both sets of contracts. Environmental groups challenged the renewals, alleging that the Bureau violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the potential impacts to the delta smelt. In upholding the district court, a panel of three Ninth Circuit judges ruled against the plaintiffs and in favor of the Bureau and its contractors.

No “Agency Action”

With respect to the Settlement Contracts, the three-judge panel ruled there was no “agency action” triggering the duty to consult under section 7 of the ESA. The court first noted that section 7 applies only when “there is discretionary Federal involvement or control.” The court found there was no such federal discretion, since under section 8 of the Reclamation Act of 1902, the Bureau was obligated to operate the CVP in conformity with California water law regarding priority use and appropriation. Under California law, senior appropriators with water rights that pre-date the Bureau’s involvement in the CVP have priority claims to water over the Bureau. As a result, the Bureau lacked discretion and was required to renew the contracts. The court stated: “The Bureau’s hands are tied historically by those asserting senior water rights in the CVP. The Bureau was required to acknowledge such rights in order to operate the CVP, which it did by entering the Settlement Contracts.” The court concluded that this substantially constrained the Bureau’s discretion to reduce water diversions for the benefit of the delta smelt or for any other reason.
Continue Reading The Ninth Circuit Interprets “Agency Action” under the Endangered Species Act – Again

In a recent post [“When is a Wetland a Wetland — and How Do We Find Out?“] we described the significant uncertainties in ascertaining the reach of the Clean Water Act over wetlands, ponds, drainage ditches and other small aquatic features only remotely connected to navigable waterways such as rivers and lakes.  

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.

In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in Northern California without consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding the potential impacts to protected species such as the threatened Coho salmon.   Karuk Tribe of California v. United States Forest Service.

The June 1 decision—noteworthy for its broad definition of “agency action” for purposes of the ESA’s consultation requirement—reversed an earlier decision by a three-judge panel of the Ninth Circuit.  The panel decision followed a long line of prior court decisions in holding there was no duty to consult.   The mining activities at issue were already authorized by federal law (the General Mining Law of 1872) and the applicants were required only to submit a Notice of Intent (NOI), which notifies the Forest Service of the proposed activities but does not trigger the need for any affirmative agency approval.  The panel ruled that the Forest Service’s decision not to require a more detailed Plan of Operations—which is needed where the Service determines that significant environmental disturbance is likely—amounts to a decision not to act and is therefore not agency action that triggers consultation.

But after hearing the matter en banc, the Ninth Circuit reversed its earlier decision and concluded that consultation was required.  According to the majority opinion, the Forest Service makes a discretionary, affirmative approval when it accepts an NOI, determines that no Plan of Operations is needed, and allows the proposed mining activities to proceed. 
Continue Reading To Consult or Not To Consult – That Is the Question for the Ninth Circuit