Endangered Species Law & Policy

On June 19, 2012, the U.S. Fish and Wildlife Service announced its final action designating 24,527 acres as critical habitat for the Pacific coast population of western snowy plover (Charadrius alexandrinus nivosus).  The designated critical habitat spans coastal areas in Washington, Oregon, and California to the Mexican border, typically characterized by sparsely vegetated, sandy beaches.  The Service identified several activities that may require special management within critical habitat areas, including, water diversions, resource extraction, and dune ...

The Bay Delta Conservation Plan (BDCP) is a daunting conservation planning exercise.  The affected ecosystems have been irreversibly altered; a number of the covered species are at risk of extinction over the next century; despite the investment of billions of dollars, the monitoring scheme in place is inadequate to provide scientists with data necessary to generate robust analyses needed to make informed resource management decisions; and the entire exercise is a political hot potato.

The State committed to release a public draft of the BDCP in June 2012, but in a letter to the ...

On June 12, 2012, the United States District Court for the District of Columbia issued a decision (pdf) upholding the listing of the shovelnose sturgeon (Scaphyrhynchus platorynchus) as a threatened species, although it is by all accounts thriving, and upheld a partial ban on commercial fishing of the shovelnose sturgeon, despite the lack of a similar ban on recreational fishing.  The Court upheld the foregoing actions by the U.S. Fish and Wildlife Service (Service) because the shovelnose sturgeon is almost identical in appearance to the pallid sturgeon (Scaphirhynchus ...

The Fish and Wildlife Service made a decision (pdf) recently not to list the dunes sagebrush lizard (Sceloporus arenicolus) as threatened or endangered under the Endangered Species Act.  The distribution of the small, light brown lizard is limited to western Texas and southeastern New Mexico. The status of the species has been uncertain for a number of years; in 2004 the Service determined that listing the species was warranted but precluded by higher priority actions and in 2010 the Service proposed to list the species as endangered.  The potential listing of the species drew strong ...

On June 4, the U.S. Fish and Wildlife Service (Service) published a 90-day finding (pdf) that substantial scientific or commercial information indicates that delisting the Inyo California towhee (Pipilo crissalis eremophilus) and reclassifying from endangered to threatened the arroyo toad (Anaxyrus californicus), Indian Knob mountainbalm (Eriodictyon altissimum), Lane Mountain milk-vetch (Astragalus jagerianus), Modoc sucker (Catostomus microps), and Santa Cruz cypress (Cupressus abramsiana) under the Endangered Species Act (ESA) may be warranted.  The Service will now conduct status reviews for these six species which result in a 12-month finding for each species determining whether the action is, in fact, warranted.

The Pacific Legal Foundation petitioned the Service requesting these actions on December 19, 2011.  The Foundation's petition was based on information contained in the most recent 5-year reviews for these six species, which were completed in 2008 and 2009.

Recently, the United States District Court for the District of Oregon issued a decision (pdf) denying the motion of plaintiff environmental groups for a preliminary injunction to halt lethal removal of California sea lions (Zalophus californianus) from the Columbia River to reduce predation pressure on salmonids as they migrate past the Bonneville Dam.  The decision is the latest chapter in a long-running dispute over efforts to protect salmon runs in the Columbia River system.

The States of Oregon, Washington, and Idaho applied for and obtained authorization from the National ...

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

On May 23, 2012, the U.S. Fish and Wildlife Service removed the Morelet's crocodile (Crocodylus moreletii) from the list of federal endangered and threatened species.  The species was first listed as endangered in June, 1970.  The listing was due primarily to over-harvesting for commercial purposes.  Shortly thereafter, restrictions on the commercial harvest and trade of the species were instituted.  In 2005, after a survey had established the widespread distribution and relative abundance of the species, the Government of Mexico filed a petition seeking to ...

In Conservation Congress v. Finley, 2012 U.S. Dist. LEXIS 61634 (May 2, 2012), plaintiffs challenge agency decisions that authorize the Beaverslide Timber Sale and Fuel Treatment Project located in the Six Rivers National Forest in northern California on the grounds the project violates the Endangered Species Act (ESA), National Environmental Policy Act, and National Forest Management Act.  Among other things, plaintiffs allege that the Forest Service unlawfully failed to reinitiate consultation with the Fish and Wildlife Service under section 7(a)(2) of the ESA ...

Large-scale habitat conservation plans often are under development for many years then mired in the regulatory process for many more.  The Bay Delta Conservation Plan (BDCP) is not exceptional because it has hit a number of bumps in the road.  But it is exceptional because the plan development and regulatory processes are transparent and being scrutinized by a multitude of interests at every step, including some that will challenge the BDCP in court irrespective of the merits of the Plan for both society and the at-risk species it is designed to protect.  For the past several months, the ...