Endangered Species Law & Policy

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee.  The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith.  A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task.  The agenda for that meeting is available here.  At the July 13 meeting ...

The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted.    The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008.  It filed a lawsuit in March 2010 to force the Service to act on the listing petition.  In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine.  According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by ...

In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection ...

On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act.  Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and ...

In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (Service) determination that under the Endangered Species Act (ESA), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a baseline approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

After nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.

But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal ...

On June 24, 2010, the Fish & Wildlife Service issued a Notice of Violation to the City of Birmingham, Alabama for allegedly killing an estimated 11,700 endangered watercress darters, and injuring approximately 8,900 others, in a single incident in 2008.  The Service is seeking $2,975,000 in civil penalties as a result of the incident.

The watercress darter is found in only five spring brooks and spring pools in Birmingham, Alabama.  In September 2008, a Birmingham maintenance crew allegedly breached an earthen dam and drained a spring pool, stranding and killing thousands of ...

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term person in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the ...

Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the ...

On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 ...