Endangered Species Law & Policy

On September 14, 2015, the U.S. District Court for the Eastern District of California granted the state and federal defendants’ motion to dismiss for lack of subject matter jurisdiction.  Center for Environmental Science, Accuracy & Reliability (CESAR) v. Cowin, No. 1:15-cv-00884 (pdf). Plaintiff CESAR claimed that the construction and operation of an emergency drought salinity barrier (Project) in the Sacramento-San Joaquin River Delta—which is designated as critical habitat for the threatened delta smelt (Hypomesus transpacificus)—violates the section 9 ...

On September 15, 2015, the U.S. Fish and Wildlife Service (Service) published (pdf) its 12-month finding on a petition to list the New England cottontail (Sylvilagus transitionalis) as an endangered or threatened species under the Endangered Species Act (ESA).  The Service determined that listing the species is not warranted.

The New England cottontail is the only rabbit native to New England and the area east of the Hudson River in New York.  It was first identified as a candidate species in 2006, when the Service published a finding that listing the New England cottontail as ...

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird" protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful "taking" to occur, the defendant must have taken a "deliberate act done directly and intentionally to migratory birds."  United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4 ...

On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.)  The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County.  The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act ...

On September 1, the U.S. District Court for the Western District of Texas, Midland Division vacated the U.S. Fish and Wildlife Service’s (Service) Final Rule listing the Lesser Prairie Chicken (LPC) as threatened.  The Service had published its final rule listing the LPC as threatened on April 10, 2014 amidst significant controversy as to whether the listing was needed.  In conjunction with the decision to list the LPC as a threatened species, the Service issued a special take rule under section 4(d) of the Endangered Species Act.  The 4(d) Rule allowed those who participate in the ...

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in the BiOp that the activities of the seven fisheries are not likely to jeopardize the continued existence of the Northern Atlantic DPS.  The BiOp was accompanied by an ...

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The murrelet is listed as a threatened species under the Endangered Species Act (ESA).  The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.  61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.

The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District ...

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court's recent decision in Horne v. Dep't of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S. Supreme Court held, in an 8-1 decision, that the forced appropriation of a portion of a farmer's raisin crop qualified as a "clear physical taking" requiring compensation under the Fifth Amendment to the U.S ...

On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey.  Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5.  In pertinent part, these sections make it unlawful to take, possess, or needlessly destroy the nest or eggs of any bird (section 3503) or any bird-of-prey (section 3503.5).  In short, the laws prohibit the take of non-endangered or non-threatened nesting birds and ...

On August 6, 2015, the California Fish and Game Commission (Commission) voted to list the southern Sierra Nevada evolutionarily significant unit of the fisher (Pekania pennati) as a threatened species under the California Endangered Species Act, but determined not to list the northern California evolutionarily significant unit.  In doing so, the Commission followed the recommendation of the California Department of Fish and Wildlife (Department).

According to the Department’s status review, [n]ative populations of fishers currently occur in Canada, the western United ...