Endangered Species Law & Policy

On March 30, Representatives Cardoza and Costa introduced a bill in the U.S. House of Representatives, H.R. 1251, entitled the More Water for our Valley Act.  The purpose of the bill is to "provide congressional direction for implementation of the Endangered Species Act as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California."  To accomplish this purpose, the bill would modify certain existing restrictions on Central Valley Project and State Water Project operations until March 1, 2015, which were ...

The U.S. Fish and Wildlife Service has announced it will accept comments through April 9, 2011 regarding a status review of the longfin smelt (Spirinchus thaleichthys).  In a press release (pdf) announcing that the Service is now accepting comments, the Service states that, based on the status review, it will issue a final 12-month finding by September 30, 2011, that will address whether the listing may be warranted under the Endangered Species Act (ESA).  The Service has twice previously made determinations not to list the species under the ESA, most recently in a determination

On February 25, the United States District Court for the Eastern District of California entered a stipulated order (pdf) establishing operational criteria for the Central Valley Project and State Water Project through June 30, 2011, in lieu of the Reasonable and Prudent Alternative prescribed by the U.S. Fish and Wildlife Service 2008 biological opinion (pdf) regarding the effects of the Water Projects on delta smelt.  The settlement that led to the order received widespread media attention, including this story by Reuters.  The memorandum decision of the court holding that ...

The U.S. House of Representatives passed H.R. 1 (pdf), a spending bill, on February 19, 2011, that includes a rider to foreclose use of funds appropriated by Congress to implement Reasonable and Prudent Alternatives (RPAs) developed by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to accompany biological opinions and jeopardy determinations made by those agencies under the federal Endangered Species Act regarding the ongoing operation of the Central Valley Project and State Water Project in California.  The biological opinions ...

On February 7, the Fish and Wildlife Service issued a press release announcing a new final rule designating critical habitat for the arroyo toad (Anaxyrus californicus).  The rule (pdf) designates about 98,366 acres of land as critical habitat ranging from portions of Santa Barbara County in the north to San Diego County in the south.  By comparison, the prior final rule, available here (pdf), designated about 11,695 acres of land as critical habitat.  The Service excluded approximately 11,697 acres of land subject to final habitat conservation plans, tribal lands ...

The February 2011 edition of Environmental Management includes an article I co-authored with Dr. Dennis Murphy entitled, The Route to Best Science in Implementation of the Endangered Species Act’s Consultation Mandate: The Benefits of Structured Effects Analysis.  The principle purpose of the article is to facilitate the development of rigorous effects analyses under the consultation provisions in section 7(a)(2) of the Endangered Species Act (ESA).  In the article, we "assess effects analysis as a tool for using best science to guide agency decisions under the Act ...

On December 14, 2010, the United States District Court for the Eastern District of California issued a 225 page decision (pdf) granting in part plaintiffs' motions for summary judgment in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. Dec. 14, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and ...

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since ...

Following the release of an incomplete draft of the Bay Delta Conservation Plan (BDCP), numerous stakeholders issued statements outlining their perspective on the status of the planning effort.  Statements were issued by a number of public water agencies that have provided most of the funding for the planning effort to date including Westlands Water District (pdf), Kern County Water Agency (pdf), Metropolitan Water District (pdf), and the State Water Contractors (pdf).  They were also released by other interested stakeholders, such as the Bay Institute and Environmental ...

The Bay Delta Conservation Plan (BDCP) is a long-term conservation strategy designed to improve the status of species and natural communities covered by the plan and provide the basis for the issuance of endangered species permits for the operation of the state and federal water projects in California.  For a number of years, federal and state agencies, numerous public water agencies, and non-governmental organizations have worked to develop the BDCP.  On November 18, an incomplete draft of the BDCP was released to the public amid controversy as reported by numerous news outlets ...

The National Research Council (NRC) announced the formation of an ad hoc panel to review the Bay Delta Conservation Plan (BDCP).  The NRC explains that "[t]he panel’s review will be related to but be conducted separately from the on-going, more broadly focused NRC study entitled 'Sustainable Water and Environmental Management in the California Bay-Delta.'"  Provisional appointments to the panel, including Dr. Henry J. Vaux of the University of California, Berkeley as Chair, are provided here.  There is a 20 day public comment period on the appointees that commenced on ...

The Fish and Wildlife Service recently published an updated list of plant and animal species native to the United States that are candidates for listing as threatened or endangered species under the Endangered Species Act.  The list, referred to as a Candidate Notice of Review or CNOR, is published periodically by the Service.  A press release announcing the release of the CNOR is available here.  Each species on the list is assigned a listing priority number (or LPN) based on its status and threats.  The CNOR includes five new candidates, changes the LPN for four existing candidates, and ...

On October 18, 2010, Idaho Governor Butch Otter announced the State of Idaho would no longer manage wolves as a designated agent under the Endangered Species Act.  According to the Idaho Department of Fish and Game website, a January 2006 agreement between Idaho and the U.S. Department of the Interior designated the State as an agent for day-to-day wolf management for the Fish and Wildlife Service, but efforts to renew the agreement were unsuccessful.  In response to the Governor's action, the Service issued a press release (pdf) indicating it would once again be the lead agency for ...

According to an article published in the Wall Street Journal this week, the Bay Delta Conservation Plan will be subject to further delays that will preclude the planned released of a draft in November 2010.  The Bay Delta Conservation Plan (BDCP) is intended to service as a Habitat Conservation Plan under the federal Endangered Species Act and Natural Communities Conservation Plan under the California Fish and Game Code.  If approved, it would provide authorizations for operation of the Central Valley Project and State Water Project, which provide water to approximately 25 million ...

The Fish and Wildlife Service issued a final rule (pdf) designating critical habitat for spreading navarretia (Navarretia fossalis), a plant species native to southern California.  The rule designates approximately 6,720 acres of land as critical habitat for the species in five southern California counties: Los Angeles, Riverside, San Diego, San Luis Obispo, and Ventura.  In a previous rule issued in 2005, the Service had designated approximately 652 acres as critical habitat for the species.  The Center for Biological Diversity filed a lawsuit against the Service in the United ...

The burrowing owl (pdf) is a species broadly distributed in the western United States that also occupies other parts of the continental United States as well as Central and South America.  The species is resident in much of the State of California.  Populations of the species have declined in certain areas of the State over time, but the population in Imperial County increased with the expansion of agriculture in the region over the past century.  It was recently reported that the Imperial County population, which was as high as 5600 pairs in the past decade, totaled less than 4900 pairs in ...

Recently, a number of news outlets reported that the population of the palila (Loxioides bailleui), a Hawaiian songbird that the Fish and Wildlife Service listed as endangered in 1967 under the predecessor to the 1973 Endangered Species Act (ESA), has decline dramatically in recent years according to surveys conducted by the U.S. Geological Survey and other entities.  In a five year status review of the species (pdf), the Fish and Wildlife Service previously identified the population decline.

From 2003 to 2007, the estimated number of palila on the southwestern slope of Mauna Kea ...

Two statewide snowmobile associations challenged the Fish and Wildlife Service's 2009 final rule designating critical habitat for the contiguous United States distinct population segment of the Canada lynx on the grounds the Service violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).  In an order (PDF) dated September 10, 2010, the United States District Court for the District of Wyoming rejected plaintiffs' NEPA claims but concurred with plaintiffs that certain lands were designated as critical habitat in the final rule due to the ...

As we previously reported, representatives of the Federal government asked the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  In a letter (PDF) dated September 10, 2010 and addressed to representatives of the Departments of the Interior and Commerce, the National Research Council agreed to provide a "short report" assessing the adequacy of the use of science and adaptive management in ...

The Service released a draft Revised Recovery Plan (PDF) for the northern spotted owl dated September 8, 2010.  The species, which inhabits portions of California, Oregon, and Washington, was listed as threatened in 1990.  A chronology of regulatory actions taken by the Service with respect to the northern spotted owl is available here (PDF).  According to a news release (PDF) issued by the Service, "[t]he draft revision is not an overhaul of the existing recovery plan but includes significant refinements based on scientific and technological advancements, especially related to ...

The United States Court of Appeals for the Tenth Circuit affirmed (PDF) a lower court decision denying a petition for review submitted by Forest Guardians challenging the decision of the Fish and Wildlife Service (Service) to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons into portions of southern New Mexico. The species was listed (PDF) as endangered in 1986 because it was believed extirpated from its historic range of portions of Arizona, New Mexico, and Texas in the United States though it persisted in northern Mexico. In 2001 ...

The U.S. Fish and Wildlife Service recently made a 90-day finding (PDF) that a petition to list the plant species Arctostaphylos franciscana presents substantial scientific or commercial information indicating that listing this species may be warranted.  Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family that is endemic to the San Francisco peninsula in California.  The species was presumed extinct since 1947 when it was last seen in the wild, but, in October 2009, an ecologist identified a plant growing in a concrete-bound ...

The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands.  The decision is described in this article.

In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA.  In response the Forest Service Employees for Environmental Ethics filed another lawsuit.

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee.  The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith.  A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task.  The agenda for that meeting is available here.  At the July 13 meeting ...

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term person in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the ...

In a letter (PDF) dated May 25, 2010 and sent to Secretaries Salazar and Locke of the Departments of the Interior and Commerce, respectively, Stephen Parker of the National Research Council's Water Science and Technology Board explained the National Research Council's decision to force the resignation of Dr. Pat Glibert of the University of Maryland.

The forced resignation is extraordinary in light of the National Research Council's Policy on Composition and Balance and Conflicts of Interest for Committees Used in the Development of Reports (which explicitly ...

On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP ...

This week, the Endangered Species Committee of the American Bar Association's Section on Environment, Energy and Resources published its most recent edition of the Endangered Species Committee Newsletter.  The Newsletter is edited by Paul Weiland and includes an article by him regarding an interim report of the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in ...

Mike Taugher of the Contra Costa Times reports that Dr. Pat Glibert of the University of Maryland was forced to resign from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The National Research Council convened the committee at the request of members of the California congressional delegation, including Senator Feinstein and Representative Costa.

The decision to force Dr. Glibert off the committee, which released its first report in March 2010 and had plans to develop a second report in the coming year ...

On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

Senator Lois Wolk has introduced two separate bills into the California Senate to amend the California Endangered Species Act (CESA) and Natural Community Conservation Planning Act (NCCPA).

SB 1303, as amended, would amend section 2087 of the California Fish and Game Code, which exempts otherwise lawful routine and ongoing agricultural activities from the take prohibitions established by CESA. Routine and ongoing agricultural activities are defined by regulation to include, among other things, any practices performed by a farmer on a farm as incident to or in conjunction with ...

In a speech at the Department of the Interior, President Obama announced a new national conservation effort titled the America’s Great Outdoors Initiative.

The President described the Administration’s plans to roll out the Initiative in the following way.

"In the months ahead, members of this administration will host regional listening sessions across America. We’ll meet with everybody -- from tribal leaders to farmers, from young people to businesspeople, from elected officials to recreation and conservation groups. And their ideas will help us form a 21st century ...

On April 8-9, Nossaman partners Rob Thornton and Paul Weiland will be co-chairing a CLE International conference on Endangered Species Law at the Omni Hotel in San Diego, California.  Nossaman attorneys Sue Meyer, Rob Thornton, and Paul Weiland will be presenting on panels at the conference.  Other speakers are among the leading attorneys, consultants, scientists, and stakeholders in the field, including Dr. Holly Doremus of University of California, Berkeley, Dr. Dennis Murphy of University of Nevada, Reno, and Dan Keppen of the Family Farm Alliance.  The conference will cover ...

Today the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta released the first of two reports regarding the Sacramento-San Joaquin Delta in California. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay Delta. It addresses two biological opinions issued by the Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) under the Endangered Species Act concerning the operation of the ...

Assemblyman Jared Huffman has introduced Assembly Bill 2420 (PDF) to amend the provisions of the California Endangered Species Act (CESA) that allow persons who obtain incidental take authorization under the federal Endangered Species Act (ESA), to also obtain take authorization from the Director of the California Department of Fish and Game for species listed under both laws, provided the Director determines that such federal take authorization is consistent with CESA.

AB 2420 would revise section 2080.1 of the California Fish and Game Code. As presently written, that section ...

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 ...