Endangered Species Law & Policy

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 ...

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 a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead ...

On April 17, 2012, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would revise the critical habitat for two endangered plant species located in Riverside County, California: the Munz's onion (Allium munzii) and the San Jacinto Valley crownscale (Atriplex coronata var. natatior).  Under the proposed rule, the Service would designate an additional 8,909 acres of critical habitat for the two species.  Approximately 889 additional acres would be designated for the Munz's onion, and 8,020 acres would be designated for the San Jacinto Valley crownscale.  

On March 8, 2012, the Departments of Agriculture and the Interior announced a new program for conserving wildlife habitat on private lands.  Under the new program, Federal, state, and local wildlife experts will jointly identify at-risk species that would benefit from habitat restoration on private lands and, using the best available science, prioritize restoration actions on a regional scale.  These efforts will initially be limited to seven species: the greater sage-grouse (Centrocercus urophasianus), New England cottontail (Sylvilagus transitionalis), bog turtle ...

On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy.  This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations.  That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).  

The Corps' policy calls for a vegetation ...

On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted.  The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted.  The Service will be accepting comments on the Humboldt marten until March 12, 2012. 

For almost 50 years ...

As recently reported by Matt Weiser of the Sacramento Bee, on December 15, 2011, the California Fish and Game Commission named the black-backed woodpecker (Picoides arcticus) a candidate species.  Under the California Endangered Species Act, the Department of Fish and Game now has 12 months to complete a status review of the species "based on the best scientific information available" and submit a report and listing recommendation to the Commission.  After receiving the Department's recommendation and all appropriate public comment at a public hearing, the Commission will ...

On October 7, 2011, the U.S. Fish and Wildlife Service ("Service") announced that the California state fish, the California golden trout (Oncorhynchus mykiss aguabonita), did not warrant listing under the federal Endangered Species Act because "conservation measures throughout the trout's historic range have done much to protect the species."   

In 2000, Trout Unlimited petitioned the Service to list the California golden trout citing habitat degradation from grazing, hybridization and introgression threats from introduced rainbow trout, predation and ...

In 1978, the Loggerhead Sea Turtle (Caretta caretta) was listed as threatened under the federal Endangered Species Act.  On September 16, 2011, the National Oceanic and Atmospheric Administration (NOAA) and U.S. Fish and Wildlife Service (Service) issued a Final Rule revising the listing for the Loggerhead Sea Turtle from a single threatened species to nine distinct population segments.  In the Final Rule five distinct population segments were listed as endangered and four were listed as threatened.  Jim Lecky, director of protected species at NOAA Fisheries, stated ...

On August 30, 2011, the U.S. Fish and Wildlife Service (Service) announced that it will designate under section 4 of the federal Endangered Species Act approximately 47,383 acres of critical habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense).  The Service had previously re-opened the comment period on its proposed critical habitat designation on June 21, 2011, in order to allow interested parties to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit.  ...

On August 15, 2011, after a little more then a decade of protection, the Fish and Wildlife Service (Service) announced that the Lake Erie water snake (Nerodia sipedon insularum) was recovered and that it has been removed from the list of threatened and endangered species.  The Service, which listed the Lake Erie water snake as a threatened species in 1999, stated that the recovery was achieved through minimizing and reducing "the threats to the snake by sustaining and protecting summer and hibernation habitats and ensuring the permanent protection of shoreline ...

On August 8, 2011, the Center for Biological Diversity (CBD) reported that the U.S. Fish and Wildlife Service (Service) listed five fish species located in Alabama, Arkansas, Kentucky, and Tennessee as endangered under the federal Endangered Species Act.  The five fish species include the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus crypticus), and laural dace (Chrosomus saylori).  All five fish species were previously identified on the Service's candidate list, which ...

In a settlement agreement (pdf) filed in federal court on July 5, 2011, the National Marine Fisheries Service (NMFS) agreed to issue a final rule by November 15, 2011, likely revising the critical habitat for the endangered leatherback sea turtle (Dermochelys coriacea) to include waters off the U.S. West coast. 

NMFS initially designated critical habitat for the leatherback in 1979, issuing a final rule (pdf) designating critical habitat only in waters adjacent to Sandy Point Beach, St. Croix, U.S. Virgin Islands.  In 2007, the Center for Biological Diversity

The wildfires in Arizona have raged through forests and burned down homes, but as recently reported by the Washington Post, three packs of endangered Mexican gray wolves (Canis lupus baileyi) appear to have been spared.  (Story by Associated Press, June 23, 2011).  Firefighters have spotted two of the three packs moving around with their pups, and researchers were able to confirm the survival of at least three wolves from the third pack via radio collar data.  It is currently unknown whether pups from the third pack have survived the fires, but a spokesman for the ...

On June 7, 2011, the U.S. Fish and Wildlife Service (Service) issued a final rule under section 4 of the federal Endangered Species Act revising the critical habitat designated for the Pecos assiminea (Assiminea pecos), and designating critical habitat for the Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), and Noel's amphipod (Gammarus desperatus).  The designated critical habitat for the four endangered species, which occur primarily in sinkholes, springs, and associated spring runs and wetland habitats, is ...

On June 1, 2011, the U.S. Fish and Wildlife Service provided notice of a proposed revision to the Riverside fairy shrimp's designated critical habitat that would add approximately  2,678 acres, raising the total designated critical habitat to approximately 2,984 acres.  The additional lands proposed to be designated are located in Ventura, Orange, Riverside, and San Diego Counties in California.

The proposed revision is to a 2005 final critical habitat designation that identified 306 acres.  The notice recently issued by the U.S. Fish and Wildlife Service ...

On May 4, 2011, the Solicitor for the U.S. Department of the Interior withdrew (pdf) a controversial 2007 opinion (pdf) (the Opinion) that was recently criticized and rejected by federal courts in Montana and Arizona.  The Opinion provided an interpretation of the phrase "in danger of extinction throughout all or a significant portion of its range" (the SPR phrase). This phrase is key for listing determinations under the federal Endangered Species Act (ESA), as an "endangered species" is defined as "any species which is in danger of extinction throughout all or a ...

On March 1-2, 2011, the Federal Emergency Management Agency and National Marine Fisheries Service held a two-day conference entitled "Demystifying National Flood Insurance Program Alignment with the Endangered Species Act."  The agenda for the conference and associated materials are provided below. 

Full Conference Agenda (PDF)

Glossary of Terms (PDF)

Compliance Options (PDF)

Importance of Healthy Floodplains by NMFS (PDF)

The Importance of Floodplains to Functioning River Ecosystems (PDF)

NMFS FEMA FAQ (PDF)

NMFS RPA #3 (PDF)

Additional Resources (PDF)

On February 11, 2011, the U.S. Court of Appeals for the Federal Circuit reversed and remanded (pdf) the decision of a lower court, finding that the U.S. Bureau of Reclamation's implementation of a reasonable and prudent alternative may have resulted in a taking requiring just compensation under the Fifth Amendment to the U.S. Constitution.

Pursuant to congressional authorization issued in 1902 and 1905, the Bureau of Reclamation (Bureau) manages and operates the Klamath Irrigation Project (Klamath Project), which provides water to approximately 240,000 acres of irrigable crop land, as well as to several national wildlife refuges in southern Oregon and Northern California.

As reported by The Sacramento Bee, on April 5, 2011, the United States District Court for the Eastern District of California approved (pdf) a stipulated settlement agreement (pdf), over the objections of intervenors, potentially ending the ongoing dispute over the alleged impacts of striped bass predation on listed salmonids and delta smelt.  (The Sacramento Bee, April 6, 2011, by Matt Weiser)  

In 2008, plaintiffs filed a lawsuit against the California Department of Fish and Game ("Department") alleging that the enforcement of the striped bass sport-fishing regulations ...

The New York Times recently reported that, in an effort to offset the rising costs associated with the review of federal listing petitions, which must be acted on pursuant to statutorily mandated deadlines set forth in the federal Endangered Species Act ("ESA"), the U.S. Fish and Wildlife Service ("Service") has requested that Congress impose a cap on funds that can be spent responding to ESA listing petitions.  (The New York Times, 3/24/2011, by Lawrence Hurley.)  In the past, environmental groups have been quick to challenge the Service's failure to ...

On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration ...

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized ...

On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population.  Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.

The ...

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance ...

On January 18, 2011, after slightly more than a quarter-century of protection, the U.S. Fish & Wildlife Service ("Service") announced that it will be removing the Maguire daisy (Erigeron maguirei) from the list of threatened and endangered species.  The Service recently concluded that the daisy population, which in 1985 consisted of only seven known plants, is presently comprised of over 162,000 individual plants, and "no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973."  The Maguire daisy is just the 21st species that ...

On November 30, 2010, the United States Fish and Wildlife Service ("Service") designated approximately 783 acres of land in Riverside and San Diego Counties, California, as critical habitat for the plant San Diego ambrosia (Ambrosia pumila).  This is approximately 329 acres less than the Service had previously proposed.  The Service's designation excluded approximately 118 acres of critical habitat that fell within the Western Riverside County Multiple Species Habitat Conservation Plan.  In its final economic analysis, the ...

In 2008, the National Oceanic & Atmospheric Administration ("NOAA") authorized Washington, Oregon, and Idaho to "lethally remove" individual sea lions that congregate below the Bonneville Dam and continue to eat listed salmon and steelhead after non-lethal deterrence methods prove unsuccessful.  Under the current program, after a sea lion is identified and trapped it is either transported to a new location or euthanized.  Earlier this month, however, a task force convened at NOAA's request recommended that the controversial program ...

On July 21, 2010, the United States District Court for the Middle District of Florida ordered the dismissal of an Endangered Species Act ("ESA") challenge brought by no less than three states, six cities, and a host of local agencies (collectively, "Plaintiffs"), holding that the determination of the U.S. Fish & Wildlife Service ("Service") was entitled to deference. 

The multi-district litigation, which also included a claim under the National Environmental Policy Act, alleged that the 2008 Biological Opinion issued by the Service for the U.S. Army Corps of ...

On August 20, 2010, the United States Court of Appeals for the Ninth Circuit held that the National Marine Fisheries Service ("NMFS") did not violate the law when it omitted resident rainbow trout from the Distinct Population Segment of California Central Valley steelhead ("CV Steelhead"), despite the fact that rainbow trout and steelhead are the same species and can interbreed.  The court affirmed NMFS's listing of the DPS Steelhead as a threatened species under the Endangered Species Act ("ESA").

In order to be listed as a threatened species, the ESA requires that, based on the best scientific information available, a species will, within the foreseeable future, likely be in danger of extinction throughout all or a significant portion of its range.  The ESA defines the term "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

On July 26, 2010, the Center for Biological Diversity filed another lawsuit challenging the Department of the Interior's regulation of offshore drilling, alleging that the Department failed to properly assess potential impacts on endangered and threatened species from large scale oil spills.  The lawsuit, which was filed in the United States District Court for the District of Columbia, attacks the "policy" and "decisions" of the former Minerals Management Services (now the Bureau of Ocean Energy Management, Regulation, and Enforcement) that exploration ...

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 ...

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 ...

On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as ...

On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible ...

Almost five years after receiving a listing petition, yesterday, the United States Fish & Wildlife Service finally issued its 90-day petition finding for the Mohave ground squirrel (Xerospermophilus mohavensis), finding that "listing may be warranted."  

The listing petition was jointly filed by the Defenders of Wildlife and Dr. Glenn R. Stewart on September 5, 2005.  Although the Endangered Species Act contemplates that the Fish & Wildlife Service will issue a 90-day petition finding within 90 days of receiving a petition, approximately six ...

Two men were sentenced in federal court last week after admitting to the 2007 slaughter of over 100 federally endangered Indiana bats in Kentucky.  In light of the brutality of the attacks, one man received 3 years probation, while the second man, who was involved in two separate attacks on the endangered bat, was sentenced to eight months in federal prison.  

Both men pleaded guilty to violating the take prohibition in the federal Endangered Species Act ("ESA"), which provides for a maximum criminal penalty of $50,000 or one year in prison, or both.  While the ...

The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be ...

At the March 3, 2010 California Fish and Game Commission meeting in Ontario, California, the National Oceanic and Atmospheric Administration ("NOAA") Fisheries, the federal agency charged with protecting marine and anadromous fish species such as the Sacramento River winter-run Chinook salmon and Central Valley steelhead, formally requested that the Commission revise sport-fishing regulations to increase the harvest of non-native predators that prey on species protected under the federal Endangered Species Act.  (To access archived footage of the Commission ...

On February 27, 2010, the Sacramento Bee published a story by Matt Weiser entitled "Lawsuit: Striped bass to blame for California's salmon decline." The story discusses an ongoing lawsuit (PDF) challenging the California Department of Fish and Game's enforcement of striped bass sport-fishing regulations in the Sacramento-San Joaquin Delta. The lawsuit alleges that the enforcement of the striped bass sport-fishing regulations maintain an elevated striped bass population, which increases striped bass predation on a number of species listed under the Endangered ...

In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the ...

Pursuant to a request by Congress and the U.S. Department of the Interior, the National Research Council recently held a number of hearings in Davis, California on the current crisis in the Sacramento-San Joaquin Delta. These hearings took place over a four-day stretch, running from January 24 to January 28, frequently addressing a handful of different Delta related issues each day.

The National Research Council is an arm of the National Academy of Sciences, a private non-profit institution that was created in 1863 by President Lincoln.  The primary role of the National Research ...