American Oil and Gas Reporter - March 2017 - 20

IndustryDigest
2014 final supplemental environmental
impact statement as satisfying all
applicable legal requirements (see story,
page 33).
Published reports indicate Canadian
Prime Minister Justin Trudeau supports
the Keystone XL Pipeline, which he
says will boost Canadian jobs and
government revenues. ❒

IPAA, ASL Suing USFWS
For Failing To Delist
American Burying Beetle
AUSTIN, TX.-The Independent
Petroleum Association of America and
the American Stewards of Liberty (ASL)
have notified the U.S. Fish & Wildlife
Service of their intent to sue the agency
under Section 4(b)(3)(B) of the
Endangered Species Act for failing to
timely act on their August 2015 petition
to delist the American burying beetle.
ASL says the groups notified
USFWS in a letter dated Feb. 22.
According to the organization,
USFWS listed the American burying
beetle as endangered in 1989, based on
claims of a 90 percent reduction in its
historical range. However, ASL says it
demonstrated in its delisting petition
that more current data indicate the
beetle's known range has expanded
100-fold since it was listed. "Robust
populations are found now in several
states in at least five ecological
regions," ASL says.
In March 2016, ASL notes, USFWS
responded to IPAA's and ASL's
delisting petition with a preliminary
determination that delisting might be
warranted. However, as is pointed out in
the attorney's letter notifying USFWS
of the group's intent to sue, if the
service makes a positive determination
that delisting may be warranted, within
12 months of receiving the delisting
petition, it must either issue a proposed
rule to begin the delisting process or
publish a finding that a delisting is not
warranted.
"We believe the case for removing
the American burying beetle is clearer
than ever," declares IPAA Senior Vice
President of Government Relations and
Political Affairs Dan Naatz. "USFWS
has had time to properly review and act
on our petition. Economic threats to the
affected communities continue to cost
private landowners, businesses and local
20 THE AMERICAN OIL & GAS REPORTER

governments millions."
ASL adds that it believes delisting
the beetle is consistent with President
Donald Trump's Jan. 30 executive order
on reducing regulations and controlling
costs. ❒

9th Circuit Conﬁrms
ESA Listing Based On
Climate Projections
WASHINGTON-The U.S. Court of
Appeals for the 9th Circuit in San
Francisco has refused to reconsider its
decision upholding the National Marine
Fisheries Service's listing of the Pacific
bearded seal as a threatened species
based on projections of climate change,
according to a report from the
Independent Petroleum Association of
America.
IPAA explains that NMFS listed the
seal as threatened under the Endangered
Species Act in 2009, based on
projections that climate change would
reduce the seals' winter sea-ice habitat
significantly by 2095. A number of
organizations, including local
governments and native American
groups, challenged the listing, and in
2014, a U.S. district court held in
Alaska Oil & Gas Association v.
Pritzker that "an unknown,
unquantifiable population reduction"
nearly 100 years in the future was too
remote and speculative to support an
endangered listing.
The 9th Circuit overturned the
district court's ruling last October,
finding that NMFS's administrative
record demonstrated reasonable and
evidence-based justification for the
listing (AOGR, December 2016, pg. 14).
The appeals court rejected the plaintiff's
petition for reconsideration on Feb. 22.
"The ruling could have major
implications for future ESA listings and
raises concerns about the possibility of
listing determinations being made
without substantial scientific evidence
of current impacts," worries IPAA. "As
recently as October last year, the Pacific
bearded seal was listed as a species of
'least concern' by the International
Union for Conservation of Nature."
Published accounts note that the U.S.
Fish & Wildlife Service also used
climate projections to list the polar bear
as threatened in 2009, which the 9th
Circuit upheld in February 2016. ❒

Fifth Circuit Court
Declines To Rehear
Critical Habitat Case
NEW ORLEANS-A federal court
has voted 8-6 against rehearing-either
en banc or before the full court-a case
about critical habitat for the dusky
gopher frog, the Independent Petroleum
Association of America reports. The
mid-February decision lets stand a 2-1
ruling in June 2016 that upholds the
government's position.
The case's key legal question asks
whether the government can deem an
area as critical habitat for an
endangered species even if the species
is absent from that area (AOGR, Aug.
2016, pg. 19). Although the frog can be
found only in Mississippi, its historical
habitat extended into Louisiana and
Alabama, and in 2012 the U.S. Fish &
Wildlife Service designated 6,477 acres
in St. Tammany Parish, La., as critical
habitat.
According to the majority opinion in
last summer's ruling, USWFS relied on
a reasonable interpretation of the
Endangered Species Act in determining
the Mississippi lands alone would be
inadequate for the frog's survival and
that the Louisiana acreage-which
includes 1,544 acres of private
timberland-was essential for its
conservation. The court also held that,
because ESA critical habitat
designations are a valid exercise of
authority under the Commerce Clause
of the U.S. Constitution, USFWS did
not exceed its Commerce Clause
authority.
The ruling also rejected claims that
USFWS was required to complete an
environmental impact statement before
it designated the critical habitat. ❒

Court Stays Lawsuit
Challenging USFWS's
Critical Habitat Rule
WASHINGTON-The U.S. District
Court for the Southern District of
Alabama temporarily has stayed
litigation filed by 18 states against the
U.S. Fish & Wildlife Service's
expanded definition of critical habitat,
the Independent Petroleum Association
of America reports.
IPAA says the 60-day stay was
American Oil and Gas Reporter - March 2017

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