Endangered Species Law & Policy

On May 28, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing 35 plants and three tree snails found on the Hawaiian islands of Molokai, Lanai, Maui, and Kahoolawe as endangered under the Endangered Species Act (ESA). The plant species include a variety of flowers, shrubs, and trees from coastal, lowland, subalpine, and cliff environments. The animal species include two Lanai tree snails (Partulina semicarinata and Partulina variabilis) and the Newcomb’s tree snail (Newcombia cumingi). The Service proposed listing the species in July 2012.

On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys' fees under the Endangered Species Act's fee shifting provision.  See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).

The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of ...

On May 15, 2013, the U.S. Fish and Wildlife Service (Service) removed (pdf) the Magazine Mountain shagreen (Inflectarius magazinensis) from the Federal List of Endangered and Threatened Wildlife. The Service determined that the threats to the species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Endangered Species Act (ESA).

The Magazine Mountain shagreen is a medium-sized, dusky brown or sand-colored snail found on Mount Magazine in western Arkansas. The snail was first listed ...

House Republicans recently announced the creation of the Endangered Species Act (ESA) Working Group, which will be led by House Natural Resources Committee Chairman Doc Hastings (R-WA) and Western Caucus Co-Chair Cynthia Lummis (R-WY).  The ESA Working Group will include a total of 13 republican members from a broad geographic range.  It will examine the ESA from many angles through a series of events, forums, and hearings that will invite discussion and input on ways in which the ESA is working well, and where it can be updated or improved to increase its effectiveness for both people ...

The State of Idaho enacted a law (pdf) this spring asserting that the State has primacy over the management of fish and wildlife. The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho. The law plainly is intended to ...

The Environmental Protection Agency (EPA) is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As part of this process, the EPA must ensure that the use of the pesticide will not cause any unreasonable adverse effects on the environment, including species protected under the Endangered Species Act (ESA) and designated critical habitat for such species. Often, in order to comply with the ESA, the EPA must consult with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to ...

On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits ...

In Klamath Siskyou Wildlands Center v. MacWhorter, 1:12-cv-1900 (pdf), the United States District Court for the District of Oregon granted a motion to dismiss plaintiffs’ suit alleging that the U.S. Forest Service (USFS) violated the Endangered Species Act (ESA) by allowing suction dredge placer mining in the Rogue River-Siskyou National Forest without consulting with federal wildlife agencies about potential effects on coho salmon (Oncorhynchus kisutch) and coho salmon critical habitat.  In dismissing the case, the court held that it lacked subject matter jurisdiction ...

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation ...

The southwestern United States faces a host of challenges as a result of climate change including strained water resources, greater prevalence of tree-killing pests, and potentially significant alterations of agricultural infrastructure. A hotter future is projected for the Southwest—a region stretching from the California coast to the plains of eastern Colorado and New Mexico—and future heat and changes in precipitation will present challenges for managing natural resources, water, infrastructure, and threats to human health. Climate change is already ...

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts ...

On April 25, 2013, the United States Court of Appeals for the Ninth Circuit invalidated a consent decree that plaintiffs and three federal agency defendants asserted resolved a dispute spanning more than a decade.  See Conservation Nw. v. Sherman, No. 11-35729 (9th Cir. 2013) (pdf).  In doing so, the Ninth Circuit held that the district court abused its discretion when it entered the consent decree because it bypassed statutorily mandated public-participation procedures.

The Northwest Forest Plan applies to approximately 24.5 million acres of federal land ...

The National Marine Fisheries Service (NMFS) recently proposed merging its Southwest and Northwest administrative regions, which would result in a savings of $3 million annually in management costs. NMFS is a component of the Department of Commerce, and is responsible for administering the Endangered Species Act as it applies to marine species and their habitats.  Currently, the NMFS Southwest region manages California, and the Northwest region covers Washington, Oregon, and Idaho. The Obama administration proposed the merger to improve coordination in areas where there ...

In American Forest Resources Council v. Ashe, 1:12-cv-00111 (D.D.C. Mar. 30, 2013), the United States District Court for the District of Columbia denied a joint motion for a consent decree regarding the critical habitat designation for the Washington, Oregon and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus).

The U.S. Fish and Wildlife Service (Service) listed the tri-state population of the marbled murrelet under the Endangered Species Act (ESA) in 1992, finding the population constituted a distinct population segment (DPS) under the ...

The Palila (Loxioides bailleui) is a small bird native to Hawaii that was listed as endangered in 1967.  In 1998, the U.S. District Court for the District of Hawaii, pursuant to a stipulation submitted by the parties, issued an order requiring the State of Hawaii to conduct semi-annual  "aerial sightings" for ungulates (e.g., pigs, deer, sheep, goats, cattle) in the Palila's critical habitat area.  Further, if any ungulates are sighted, the order requires the State to "commence aerial shooting" of the ungulates. 

In 2012, the County of Hawaii, who was not a party to the ...

The United States Fish and Wildlife Service (Service) has announced (pdf) that it will conduct a full status review to determine whether protection under the Endangered Species Act (ESA) is warranted for two populations of the black-backed woodpecker (Picoides articus).

The Service's announcement is in response to a petition filed by environmental groups requesting two populations of the species, the Cascades-Sierra Nevada population in California, Oregon, and Washington, and the Black Hills population in South Dakota and Wyoming, be listed as endangered or ...

On April 9, 2013, the United States District Court for the Eastern District of California ruled (pdf) on a motion (pdf) by the United States and the State of California to extend the period of time to issue new biological opinions regarding the effects of continued operation of the Central Valley Project and State Water Project on a number of fish species listed as threatened or endangered under the federal Endangered Species Act.  The U.S. and California sought a three year extension of the time to issue biological opinions that were previously held to be unlawful.  The court granted a ...

On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA).  The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi.  Photo by Strobilomyces at Océanopolis, Brest, France on 17th April 2006.

The loggerhead sea turtle includes nine distinct population segments (DPS ...

On March 21, 2013, Representatives Bill Flores (R-TX), John Carter (R-TX), K. Michael Conaway (R-TX), Mac Thornberry (R-TX), and Steve Pearce (R-NM) introduced a bill (pdf) to curtail allegedly excessive Endangered Species Act (ESA) lawsuits brought by environmental groups. The bill would prohibit courts from approving ESA settlements, unless states and counties that would be affected by the settlements have also given their approval. Also aimed at limiting the amount the U.S. Fish and Wildlife Service (Service) can spend on ESA lawsuits, the bill would prevent litigants from ...

The United States Court of Appeals for the Fifth Circuit stayed (pdf) an injunction issued by the United States District Court for the Southern District of Texas requiring the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA).  We reported on the lower court decision that State officials in Texas violated the ESA's prohibition on take of the federally listed whooping crane (Grus americana), here.  At the same time that the court stayed the injunction pending the outcome ...

The U.S. Fish and Wildlife Service (Service) prevailed on March 19th in a suit brought by the Sierra Club challenging a decision by the Service to delay revision of the critical habitat designation for the leatherback sea turtle (Dermochelys coriacea).  The United States District Court for the District of Columbia ruled that the Service's decision was not judicially reviewable under either the Administrative Procedures Act (APA) or the Endangered Species Act (ESA). Sierra Club v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D. D.C. March 19, 2013 ...

On March 14, 2013, the State of California announced (pdf) that it has released the first 4 of 12 chapters of the Bay Delta Conservation Plan (BDCP).  California plans to release the next three chapters on March 27, and the remaining five chapters on April 22.  The BDCP website notes that the materials being released are preliminary and subject to change, and do not take the place of the public review draft, which will be released at a later date.  Preliminary draft versions of the BDCP have been released on several occasions; for example, a complete draft was released in February ...

On March 13, 2013, the U.S. Fish and Wildlife Service (Service) extended (pdf) the public comment period for two proposed rules relating to the Gunnison sage-grouse (Centrocercus minimus).  As we previously reported, the Service published a proposed rule to list the species as endangered under the Endangered Species Act (ESA) in January.  In conjunction with that proposed rule, the Service also proposed to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah.  The 60-day public comment period for these two proposed rules was ...

After an unusual eight day bench trial, the United States District Court for the Southern District of Texas held (pdf) State officials in Texas violated the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana).  In holding for plaintiff The Aransas Project, the court found that defendants’ actions, inactions, and refusal to act proximately caused unlawful take of at least 23 whooping cranes during the winter of 2008-09.  The court enjoined the State from granting new water permits affecting the Guadalupe or San Antonio Rivers and required the State to prepare a habitat conservation plan for the purpose of obtaining an incidental take permit under section 10(a)(1)(B) of the ESA.

In Conservation Congress v. U.S. Forest Service, No. CIV. 2:12-02416 (E.D. Cal. Feb. 26, 2013), the United States District Court for the Eastern District of California denied (pdf) a motion brought by the U.S. Forest Service and U.S. Fish and Wildlife Service to limit review of claims brought under the citizen suit provision of the Endangered Species Act (ESA) to the administrative record.  The court denied defendants' motion because it "would be premature to determine at this early stage of the proceedings" whether plaintiffs' claims should be strictly limited to ...

The California Fish & Game Commission (Commission) voted this week to designate the Clear Lake hitch (Lavinia exilicauda)—a fish found only in Clear Lake and its tributaries—as a candidate species under the California Endangered Species Act (CESA). This week’s vote triggered a one-year formal review period during which the status of the fish will be assessed.

The Clear Lake hitch population has declined dramatically due to a loss of spawning habitat in the tributaries feeding into Clear Lake. Other causes of the decline of the fish include migration barriers that block ...

On March 5, 2013, the United States Court of Appeals for the Ninth Circuit ordered Natural Resources Defense Council v. Salazar, 1:05-cv-01207, to be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. Environmental groups brought the action against the U.S. Bureau of Reclamation (Reclamation), asserting Reclamation violated section 7 of the Endangered Species Act (ESA) by renewing 41 water supply contracts without consulting with various Central Valley Project (CVP) water users.

In July 2012, a three-judge panel in the Ninth ...

On February 27, 2013, the U.S. Court of Appeals for the Federal Circuit affirmed (pdf) the dismissal of a Fifth Amendment takings claim based on the finding that the claim was "not ripe."  The claim is unusual because it arose in the context of the federal Endangered Species Act (ESA).

Casitas Municipal Water District (Casitas) has a contract with the federal Bureau of Reclamation and a license with the State of California authorizing it to divert water for the Ventura River Project (Project).  The contract with the Bureau of Reclamation states that Casitas ...

On March 1, 2013, the great white shark (Carcharodon carcharias) received protection (pdf) under the California Endangered Species Act (CESA).  The protections prohibit anyone from hunting, pursuing, or otherwise harming the species.  Commercial fisheries that could incidentally take a shark in fishing nets, as well as scientists wishing to tag a shark for research, will have to obtain permits from the California Department of Fish and Wildlife.  As reported here, the protections are the result of the California Fish and Game Commission's decision to make the species a ...

The U.S. Fish and Wildlife Service (Service) recently proposed (pdf) to remove the island night lizard (Xantusia riversiana) from its current listing as threatened under the Endangered Species Act (ESA).  The proposed removal is based on successful recovery efforts led by the U.S. Navy and National Park Service, which have resulted in the achievement of nearly all of the objectives established in the recovery plan for the species.

Island night lizards are found only on the Channel Islands - San Clemente Island, San Nicolas Island, and Santa Barbara Island - off the ...

In a major victory for advocates of regulatory action to address climate change, the Court of Appeals for the District of Columbia Circuit rejected challenges to the listing of the polar bear as a threatened species.  In Re:  Polar Bear Endangered Species Listing and Section 4(d) Rule Litigation (D.C. Cir. No. 11-5219, March 1, 2013).  The court held that the decision to list the polar bear based on predicted reductions in the sea ice habitat of the polar bear as a result of climate change is reasonable and adequately supported by the record.
The polar bear listing is the first and most high ...

Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene.  The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene.  Should a ...

In a unanimous panel decision, the United States Court of Appeals for the Fourth Circuit held (pdf) that a biological opinion issued by the National Marine Fisheries Service (NMFS) regarding the effects of three pesticides on certain salmonids was not the product of reasoned decision-making.  The Fourth Circuit refused to silently rubber stamp an agency decision where NMFS failed to provide a satisfactory explanation for key aspects of that decision.  Further, the court refused to allow NMFS to offer post hoc rationalizations for its decision in the form of an expert affidavit and ...

On February 20, 2013, the U.S. Fish and Wildlife Service (Service) issued a final special rule (pdf) to manage the polar bear (Ursus maritimus), which is listed as threatened under the Endangered Species Act (ESA). The rule effectively maintains the management and conservation framework that has been in effect for the polar bear since it was first listed under the ESA in 2008.

The rule states that activities outside the polar bear’s habitat are not subject to ESA incidental take prohibitions. According to the Service, the rule avoids redundant regulation under the ESA by adopting ...

The U.S. Fish and Wildlife Service (FWS) designated (pdf) approximately 9,600 acres as critical habitat for the endangered Coachella Valley milk vetch (Astragalus lentifinosus var. coachellae). The critical habitat designation covers four areas within the greater Coachella Valley area near Palm Springs, California.

As a result of the designation, federal agencies must consult with FWS under the Endangered Species Act regarding the impacts of federal actions on the plant species within the designated area. The ruling does not directly affect private land ownership.

On February 6, 2013, the California Fish and Game Commission (Commission) voted to make the great white shark (Carcharodon carcharias) a candidate for protection under the California Endangered Species Act (CESA).  The Commission determined that listing the species as threatened or endangered under CESA may be warranted, and initiated a one-year comprehensive review to evaluate the status of the species.  Based on this review, the Commission will make a final decision next year regarding whether to list the species.  The species will receive protection under CESA while the ...

In Sierra Club v. Kenna, 2013 U.S. Dist. LEXIS 4743, *1 (January 11, 2013), the United States District Court for the Eastern District of California upheld (pdf) the Bureau of Land Management’s (BLM) grant of right-of-way over federal land, providing a wind energy project - located entirely on private land - access to a state road and other essential infrastructure. The plaintiffs challenged BLM’s action on the grounds that BLM failed to consider impacts to bird species listed under the federal Endangered Species Act (ESA) caused by the operation of the wind turbines.

A wind energy ...

As recently reported by a number of news agencies, President Obama will nominate Sally Jewell, the Chief Executive Officer of REI, to be the next Secretary of the Interior.  If the nomination is approved by the Senate, she will be replacing a vacancy created by Ken Salazar, who announced in January that he will be stepping down at the end of March.  It is anticipated that President Obama will make the announcement this afternoon.

In Northwest Coalition for Alternatives to Pesticides v. U.S. Environmental Protection Agency, 2013 U.S. Dist. LEXIS 11955, *1 (Jan. 28, 2013), the United States District Court for the Western District of Washington held (pdf) that claims arising under the citizen suit provision of the Endangered Species Act (ESA) are not subject to the strictures of the record review doctrine. The court held that, since the ESA citizen suit provision creates an express, adequate remedy at law, and the Administrative Procedure Act (APA) only applies when there is no other adequate remedy in court ...

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines.

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine ...

On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana ...

On January 25, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Zuni bluehead sucker (Catostomus discobolus yarrowi) as endangered under the Endangered Species Act (ESA).  The sucker had been on the candidate list since 2001, when the Service determined that the species warranted protection under the ESA, but listing was precluded by higher priority listing activities.

The Zuni bluehead sucker has a torpedo-shaped body and bluish head.  The average length of a mature fish is approximately 200 centimeters (8 ...

On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical ...

On January 23, 2013, over 25 California delegates to the House of Representatives introduced a bill, H.R. 399 (pdf), addressing the federal rules requiring trees growing on levees to be removed. Specifically, the bill would require the U.S. Army Corps of Engineers (Corps) to review its policy about vegetation-removal on levees, in order to consider allowing variances on a regional or watershed basis.

The Corps established a national vegetation removal policy in the wake of the failure of levees during Hurricane Katrina. According to Rep. Doris Matsui (D-CA), the [C]orps ...

On January 11, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA).  As we previously reported, the sage-grouse had been on the candidate species list since January of 2000, but the Service was not authorized to prepare a proposed rule to list the species or designate critical habitat until 2011, when additional resources became available.

The Gunnison sage-grouse is the smaller cousin of the greater sage-grouse.  The species ...

In Jayne v. Sherman, --- F.3d ---, 2013 U.S. App. Lexis 417, *1 (9th Cir. Jan. 7, 2013), the United States Court of Appeals for the Ninth Circuit upheld (pdf) a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the Idaho Roadless Rule. Plaintiffs argued that FWS violated the Endangered Species Act (ESA) by improperly relying on commitments from the U.S. Forest Service regarding the impact of the rule on listed grizzly bear and caribou. In rejecting plaintiffs’ arguments, the court found that FWS reasonably relied on the Forest Service’s commitments to ...

This morning, Secretary of the Interior Ken Salazar announced that he is planning to step down at the end of March.  A number of prominent elected officials from the western United States have been mentioned in the press as potential candidates for the position.

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural ...

The California Department of Fish and Wildlife (Department) has determined (pdf) that there is sufficient scientific information to petition to list the Northeastern Pacific (NEP) population of white sharks (Carcharodon carcharias) as threatened or endangered under the California Endangered Species Act.  Currently, the take and possession of white sharks is protected from sport and commercial fishing activities, with limited exceptions, under existing laws.  However, the scientific information in the petition demonstrates that the species may benefit from ...