Endangered Species Law & Policy

On March 17, the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) overturned a New Mexico district court decision in which the lower court upheld the U.S. Fish and Wildlife Service’s (USFWS) designation of two units of critical habitat for the jaguar (Panthera onca). In 2014, USFWS designated more than 750,000 acres of critical habitat, spread across 6 critical habitat units (CHU) in Arizona and New Mexico. USFWS based its designation of two of these CHUs – CHUs 5 and 6 – in part on the agency’s position that these CHUs were occupied by the jaguar at the time the ...

This week, the U.S. Fish and Wildlife Service (USFWS) announced its opening of 5-year status reviews for 25 southeastern species and 10 southwestern species. Among the species included in the status review are the dusky gopher frog (Lithobates sevosus), Jollyville Plateau salamander (Eurycea tonkawae), and many other species of fish, wildlife, and plants. Five-year status reviews are required under section 4(c)(2)(A) of the Endangered Species Act and serve to inform USFWS whether a given species warrants a change in listing status (e.g., de-listing or a change from threatened ...

Today, the U.S. Fish and Wildlife Service (USFWS) released a pre-publication version of its long-awaited update to regulations governing Migratory Bird Treaty Act (MBTA) implementation (Proposed Regulations). Significantly, the Proposed Regulations explicitly state that unintentional, non-purposeful, or “incidental” take of migratory birds is not prohibited by the MBTA’s “take” prohibition. USFWS has also published a pre-publication version of a notice of intent (NOI) to prepare an environmental impact statement pursuant to the National Environmental ...

Yesterday, in Center for Biological Diversity v. Everson​, the United States District Court for the District of Columbia overturned the U.S. Fish and Wildlife Service’s (USFWS) decision to list the northern long-eared bat (Myotis septentriodnalis) as threatened rather than endangered, and remanded the decision back to the agency.  The threatened listing will remain intact while USFWS undertakes a new listing decision.

In addition to remanding the threatened listing decision back to the USFWS, the court also vacated a portion of the USFWS’s and National Marine ...

On January 28, 2020, the U.S. Fish and Wildlife Service (USFWS) published a notice and request for information in connection with USFWS’s initiation of 5-year status reviews for 66 species found in California and Nevada.  Among the species subject to review are the bay checkerspot butterfly (Euphydryas editha bayensis), Sierra Nevada yellow-legged frog (Rana sierra), the California tiger salamander (Ambystoma californiense), Morro Bay kangaroo rat (Dipodomys heermanni morroensis), and many other plants and wildlife species.  A full list of species subject to the 5-year ...

Today, the Trump Administration announced its long-awaited release of updates to National Environmental Policy Act (NEPA) implementation regulations (Regulations).  On June 20, 2018, the administration published an advanced notice of proposed rulemaking (ANPR) and sought public comment on how the Council on Environmental Quality (CEQ) could ensure more effective, timely, and efficient NEPA process.  During the 60-day comment period on the ANPR, more than 12,500 comments were received.

The administration has indicated the proposed Regulations will be posted to the Federal ...

Today, the U.S. Senate confirmed Aurelia Skipwith as the Director of the U.S. Fish and Wildlife Service (USFWS) by a vote of 52-39.  Ms. Skipwith’s confirmation fell mostly along party lines, with three Democratic Senators joining Republicans in approving the nomination.  With Ms. Skipwith’s confirmation, the USFWS will have its first Director of the USFWS since the beginning of the Trump Administration.

Prior to her confirmation, Ms. Skipwith served as the Interior Department’s Deputy Assistant Secretary for Fish, Wildlife and Parks. She is a co-founder and former general ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register ...

On May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year ...

On March 28, 2019, a federal judge overturned the U.S. Fish and Wildlife Service’s (USFWS) rejection of a petition to delist an endangered karst invertebrate species, the Bone Cave harvestman (Texella reyeisi) (BCH), which is known to occur only in central Texas.

American Stewards of Liberty and others (Plaintiffs) had claimed that USFWS’ rejection of a 2014 petition to delist the BCH was arbitrary and capricious because, among other things, USFWS based its rejection on the petition’s supposed failure to provide BCH population trend data that was unavailable and is ...

On February 6, 2019, a federal judge upheld U.S. Fish and Wildlife Service’s (Service) 90-day finding that a petition to delist the endangered golden-cheeked warbler (Petition) did not present substantial information that delisting the warbler may be warranted (Negative 90-day Finding). In 2015,  various groups and individuals filed the Petition, which, among other things, alleged that because a 2015 study indicated that the golden-cheeked warbler and its habitat were far more abundant than the Service originally believed at the time of the bird’s listing in 1990, the bird ...

As we previously reported, more than 150 organizations have requested that the Department of the Interior (DOI) extend the public comment period associated with DOI’s proposed changes to how it will process requests for information under the Freedom of Information Act (FOIA) (Proposed Regulations) by no less than 120 days due, in part, to the partial government shutdown.  Without referencing or responding to these multiple requests, DOI announced that it will extend the comment period for the Proposed Regulations by a single day. According to the announcement from DOI, the ...

The longest partial government shutdown in United States history is taking its toll on Endangered Species Act (ESA) policy initiatives championed by the Trump Administration, and is making ESA compliance and project completion significantly more difficult for a wide spectrum of industries. In July 2018, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service published proposed changes to ESA implementing regulations relating to species listings, de-listings, critical habitat designations, and consultations under section 7 of the ESA. The ...

On December 28, 2018, the Department of the Interior (DOI) published proposed changes to its rules governing how it processes requests for records under the Freedom of Information Act (FOIA) and provided a 30-day timeframe in which the public could submit comments to the DOI concerning those changes. The public review and comment period is currently scheduled to close on January 28, 2019. However, the partial government shutdown has caused several groups to question whether or not the public comment period should, in fact, close as scheduled. More than 1,200 comments have been ...

On October 22, 2018, the U.S. Court of International Trade denied the request of various federal agencies to stay an injunction banning the import of Mexican seafood caught with gill nets in the Gulf of California.  The injunction, granted in July, is intended to protect the endangered vaquita porpoise (Phocoena sinus), which can get tangled in commercial fishing gill nets.  The injunction required the United States Department of Commerce, National Marine Fisheries Service, United States Department of the Treasury, United States Department of Homeland Defense, and various ...

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (ESA) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA.  The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into cooperative agreements for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills ...