March 2017 Bar Bulletin
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March 2017 Bar Bulletin

The Endangered Species Act -
More Arms and Legs than Intended

By Anthony Marangon

 

In 1987, color anomalies visible from aircraft in Alaska’s Bristol Bay region sparked a mineral exploration project known today as “Pebble Mine.” Pebble Mine’s site is estimated to be the second largest ore deposit of its type in the world in terms of value of the contained metal (a combination of copper, gold and molybdenum). Pebble Mine is located approximately 15 miles north of Iliamna Lake, which is home to the only known population of Pacific harbor seals living in fresh water in the U.S.

On November 19, 2012, the nonprofit Center for Biological Diversity (CBD) submitted a petition pursuant to the Endangered Species Act (ESA) to the Secretary of Commerce to list the harbor seals in Iliamna Lake as a threatened or endangered species. CBD contended that the “Iliamna Lake seals” constituted a Distinct Population Segment (DPS) of the Pacific harbor seals subspecies and therefore warranted protection. CBD’s petition further contended that the proposed Pebble Mine, if opened, would pose a catastrophic threat to the Iliamna Lake seals.

To the maximum extent practicable, within 90 days of receiving a petition to list a “species” (broadly defined under the ESA) as threatened or endangered, the secretary of Commerce (acting through the National Marine and Fisheries Service [NMFS]) or secretary of the Interior (acting through the U.S. Fish and Wildlife Service [FWS]), depending on the type of animal at issue, is required to make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action “may be” warranted.

Joint ESA-implementing regulations between NMFS and FWS define “substantial information” in the context of reviewing a petition to list a species as the amount of information that would lead a reasonable person to believe that the proposed measure may be warranted. A positive 90-day finding requires a “status review” of the species.

A status review includes comprehensive review by FWS or NMFS of the best available scientific and commercial knowledge and utilizes five criteria to determine whether listing the species is warranted. Within one year of receiving the petition, FWS or NMFS is supposed to conclude whether the status review indicates that listing the species is warranted. The result of a positive 90-day finding with regard to the Iliamna Lake seals would, at minimum, curtail Pebble Mine development for at least a year.

Although “numerous factual errors, misquoted and incomplete references, and unsupported conclusions [were found] within the petition[,]” and NMFS’s own review indicated “that there is uncertainty and conflicting information specific to the harbor seals in Iliamna Lake[,]” on May 17, 2013 — six months after submission — NMFS found that the petition to list the seals presented substantial information indicating that the petitioned action may be warranted.1

It wasn’t until November 17, 2016, that a final notice by NMFS ultimately concluded that listing the harbor seals in Iliamna Lake as an endangered species was not warranted — a decision that the State of Alaska agrees with.2 NMFS had found, based on the best scientific and commercial information available, that the seals in Lake Iliamna are Pacific harbor seals and do not constitute a DPS. Although the seals did not receive listing protection, legally blocking Pebble Mine development for four years, especially when the entire process was intended by the drafters of the ESA to take just one year, was arguably a success for CBD.

Whether by intent or result, the four-year delay was a victory in and of itself. This outcome has created the potential for future abuse of the ESA — utilizing the time required to complete a status review of a species based on potentially frivolous petitions — and given the act unintended arms and legs.

Did the drafters of the ESA intend that there would be such a low threshold to trigger such a lengthy process and for the subsequent delay to be a factor weighing in the petitioner’s favor? I submit that the answer to that question is no. And if arms and legs are the means by which we seek certain ends, the lengthy process initiated by a positive 90-day finding gives a petitioner additional, yet unintended, arms or legs by which to seek their ends. Perhaps a fundamental change in the standard required to trigger a status review is warranted.

The four-year period from CBD’s filing regarding the Iliamna Lake seals until the finding by NMFS and NOAA that listing was not warranted was too long. For this reason, and to serve as a gatekeeper against costly, time-consuming actions that are ultimately unwarranted, higher scrutiny needs to be applied to the 90-day finding that a petitioned action “may be” warranted.

A paradigm shift akin to Twombly’s introduction of the “plausibility” standard is instructive.3 In Twombly, the Supreme Court replaced the term “conceivable” with the term “plausible,” holding that the allegations in a complaint must suggest plausibly, rather than conceivably, that the pleader is entitled to relief.4

This shift required more than labels and conclusions, and a formulaic recitation of the elements of a cause of action to survive being dismissed for failure to state a claim for which relief could be granted. It served as a gatekeeper, weeding out unwarranted actions and preventing them from finding their way into courtrooms, jamming up the court systems, and wasting necessary resources.

A similar shift under the ESA with regard to the standard required for a positive 90-day finding would serve as a necessary gatekeeper to prevent actions that primarily seek delay and are otherwise ultimately unsupported. It is not the developer who should pay the most severe price for the delay created by an unwarranted or frivolous petition, especially when the petition contains “numerous factual errors, misquoted and incomplete references, and unsupported conclusions[.]”

Higher scrutiny would allow more resources to be devoted to cases that warrant them, chill the intentional but unintended use of the ESA for the pure or primary benefit of delay, and help to allow only the ESA’s enumerated and intended factors to play an integral part in a petitioner’s decision to use the ESA.

Anthony Marangon is an attorney with Marler Clark, LLP, PS.


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