Litigation Weekly – February 2, 2018

Litigation Weekly Feb 2

(New case.)  Plaintiffs claim 23 surface water diversions on the Sawtooth National Forest adversely affect listed fish species, and that the Forest Service failed to consult on them with the U. S. Fish and Wildlife Service as required by the Endangered Species Act.  (D. Idaho)  (Also discussed here.)

This Supreme Court decision favored industry plaintiffs objecting to the Obama Administration’s 2015 regulation defining the “waters of the United States” (WOTUS) subject to the Clean Water Act by holding that the case must be heard initially in a district court rather than an appeals court.  This maneuvering is likely related to the fact that the Trump Administration is in the process of changing the 2015 regulation. (U.S.) (More information may be found here.)

(New case.)  The Tribe’s claim is that federal agencies have a mandatory duty to exercise jurisdiction over permit applications for discharge from a mine into the Menominee River and adjacent wetlands, and cannot delegate that responsibility to the State of Michigan.  (E.D. Wis.)

The Fish and Wildlife Service improperly denied petitions to list bison under the Endangered Species Act in its initial (90-day) finding because competing scientific theories indicated that the species “may” be warranted for listing.  (D. D.C.)

Blogger’s note:

The Forest Service summary doesn’t really explain the importance of the disagreement about genetics.  One of the claims in the petitions is that while the existing plan to maintain the population at 3000 individuals could be an adequate regulatory mechanism to protect one genetic population (inadequate regulatory mechanisms being one of the factors for listing species), it would not be adequate to maintain two genetically distinct herds (arguably requiring 3000 in each herd, and I think one of the studies must be suggesting that the loss of one genetic population would threaten the species as a whole).

Also, it is important to recognize that the “may” be warranted standard prevents the agency from making its own determination of the best science at the 90-day stage.  That is what federal agencies normally get to do.  The second stage of the ESA listing process is the 12-month finding, and that is where the FWS must decide if listing is actually warranted, based on its weighing of the science.

These bison are also an issue in the Custer-Gallatin forest plan revision process (noted here).



  1. Oh my goodness…as a geneticist, I’m having trouble with moving from endangered species to “endangered subpopulations.” I know that some regulators or judges must have decided that that was an OK thing to do. But a subpopulation is in the eye of the beholder, and different measures can yield different results. When I looked up what was going on with bison, I found many interesting facts in this article “Conservation Genetics and North American Bison (Bison bison) by Philip Hedrick, which is free.. If folks aren’t familiar with some of the terminology, just ask.

    “Altogether, these herds were established with less than 100 wild-caught founders (see below). In addition, a small remnant wild population survived in what is now Yellowstone National Park (NP). This population declined to an official estimate of 25 animals in 1902 (Meagher 1973). In other words, nearly all the present-day plains bison in the United States are descended from a founder population of 100 or less, and probably an effective founder number substantially less than 100, because of the small sizes of the herds in the initial generations (note: I will use the terms “population” and “herd” generally synonymously in this article).

    “However, it is clear that bison need to be managed as a conservation species because of the potential effects of the low initial numbers of founders, past bottlenecks in various herds, cattle hybridization in a number of conservation herds, artificial selection for nonadaptive traits, isolation of most conservation herds, and the observation of severe inbreeding depression in 1 conservation herd. From a conservation genetics perspective, it is important for bison to keep cattle ancestry at a very low level, avoid detrimental effects of inbreeding and selection for livestock-related traits, and retain sufficient genetic variation for future adaptation. Unfortunately, some of these objectives may be in conflict with each other and may require tradeoffs to achieve the best possible outcome. ”

    It’s a very interesting paper. Some of you might be familiar with the Minimum Viable Population literature, which is summarized in part in this Wikipedia article

    “An MVP of 500 to 1,000 has often been given as an average for terrestrial vertebrates when inbreeding or genetic variability is ignored.[3][4] When inbreeding effects are included, estimates of MVP for many species are in the thousands. Based on a meta-analysis of reported values in the literature for many species, Traill et al. reported a median MVP of 4,169 individuals.[5]”

    How did bison manage to make it, since they do suffer from inbreeding depression apparently, starting with less than 100? It’s because MVP is one of those “quantified models of linked assumptions,” and bison are real creatures. And we don’t really understand how genetic variation works, still after all these years, all we know is that it’s “more complex than previously thought.”

  2. How did they make it? They got help. It’s not uncommon for endangered species to be few enough in number for inbreeding depression to occur. The result is to decrease their “fitness.” I’m not sure what all that means, but if it means they are less likely to survive, then protecting them and their environment becomes more important. That is what the Endangered Species Act does. A good example is the California condor, which bottomed out at 27 individuals, but now numbers in the hundreds. All individuals in the Mexican wolf recovery program are descendants of 7 individuals. There are now around 100 in the wild and more than 300 in the captive breeding program.

    • Yes and it’s a choice to further protect habitat or to do what they did with the Florida panther, that is, cross it with another subspecies to increase genetic diversity (and reduce inbreeding depression). If the problem is inbreeding depression, more acres are not necessarily going to help.

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