Endangered Species Law & Policy

On June 16, 2022, a vote by the California Fish and Game Commission (Commission) on whether the Western Joshua tree (Yucca brevifolia) should be listed as threatened under the California Endangered Species Act (CESA) resulted in a 2-2 tie. Pursuant to the Commission’s rules, the Western Joshua tree will remain a “candidate” under CESA and the issue will be taken up again at a subsequent Commission meeting. The Commission will take up the Western Joshua tree’s listing status at the agency’s October 12-13, 2022 meeting and will re-open the comment period on the species’ ...

This week, the New York Court of Appeals rejected a bid for writ of habeas corpus from an unusual petitioner: Happy, a 51-year-old, female Asian elephant, currently living in captivity at the Bronx Zoo.

In its 5-2 opinion, the court held that habeas corpus only protects against the unlawful and indefinite imprisonment of human beings, and that Petitioner, the Nonhuman Rights Project, could not use the legal mechanism to bust Happy out of the zoo and into an elephant sanctuary.

Though the outcome of the case was not particularly surprising, it did feature some surprising elements—the ...

On May 19, 2022, the Center for Biological Diversity (CBD) filed a lawsuit in the U.S. District Court for the District of New Mexico, challenging the U.S. Fish and Wildlife Service’s (Service) failure to make a timely 12-month finding on the group’s petition to list the dunes sagebrush lizard (Sceloporus arenicolus) (DSL), which was submitted to the agency in 2018.

The DSL is no stranger to controversy. In 2002, CBD and others petitioned the Service to list the DSL due to alleged threats to the species’ habitat caused by oil and gas production. In 2004, the Service determined that ...

On May 16, 2022, the U.S. District Court for the Northern District of California overturned the U.S. Fish and Wildlife Service’s (Service) March 31, 2020 withdrawal (2020 Withdrawal) of a proposed Endangered Species Act (ESA) listing and section 4(d) rule for the “bi-state population” of the greater sage grouse (Bi-state Grouse). The Bi-state Grouse lives along the California-Nevada border within six population management units (PMUs) monitored by the Service.   

The Service proposed the Bi-state Grouse for listing as threatened in 2013, then later withdrew that proposal ...

The Council on Environmental Quality (CEQ) has finalized revisions to portions of the agency’s National Environmental Policy Act (NEPA) implementing regulations (Phase I Regulations), which had been revised in 2020 under the Trump Administration (2020 Regulations). CEQ received more than 90,000 public comments in response to its proposal to revise the 2020 Regulations. In its final Phase I Regulations, CEQ declined to make substantial changes to the version proposed.

CEQ has indicated that the Phase I Regulations represent a “narrow” set of changes to address the Biden ...

This week, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the sand dune phacelia (Phacelia argentea) as threatened under the Endangered Species Act (ESA), along with a proposed section 4(d) rule that would prohibit several activities with respect to the species.  The proposed rule also includes a designation of approximately 252 acres of critical habitat in Del Norte County in California, and Coos and Curry Counties in Oregon. 

The sand dune phacelia is an evergreen, herbaceous, flowering perennial in the forget-me-not family of plants.  It blooms from ...

On March 22, 2022, the Office of Information and Regulatory Affairs (OIRA) received from the U.S. Fish and Wildlife Service (Service) an Endangered Species Act (ESA)-specific compensatory mitigation policy (Policy). While the text of the Policy is not publicly available at this time, many have speculated that an updated Policy may mirror that which was in place under the Obama Administration.

On December 27, 2016, the Service published its final ESA Compensatory Mitigation Policy (2016 Policy) establishing the agency’s goal that compensatory mitigation provided under ESA ...

Join us on March 29, 2022, when we will participate in the 2022 Annual AGWT-AGWA California Groundwater Issues Conference in Lakewood, CA, hosted by American Ground Water Trust and Association of Ground Water Agencies.

We will be providing a presentation entitled “The New Endangered Species ‘Protection’ Requirements for Steelhead Trout Will Impact Water Managers’ Options and Groundwater Sustainability Plans.” During this session, we will discuss how the new California endangered species listing will affect operations from Santa Maria, in the central ...

The U.S. Fish and Wildlife Service (Service) has announced its proposal to list the northern long-eared bat (Myotis septentrionalis) (NLEB) as endangered under the Endangered Species Act (ESA) (Proposed Rule). While Service policy indicates the agency should identify in a listing rule activities that would or would not result in a violation of the “take” prohibition set forth in section 9 of the ESA, the Service indicates in the Proposed Rule that it is unable to identify specific activities what would not violate the take prohibition. The Service points to the need for ...

Last Friday, the U.S. District Court for the Eastern District of California issued an order on competing motions in the coordinated cases challenging the 2019 biological opinions (BiOps) that govern operation of California’s State Water Project and the federal Central Valley Project (Projects). The hefty order, which spanned over a hundred and twenty pages, attempted to distill the thousands of pages of briefing the parties submitted on the matter. Admittedly, stakes were high: these two Projects supply water to more than 25 million Californians and to farmers across the ...