Endangered Species Law & Policy

On July 14, Glenn-Colusa Irrigation District (GCID) filed a petition for writ of certiorari (pdf) with the U.S. Supreme Court, seeking review of the Ninth Circuit’s decision in Glenn-Colusa Irrigation District v. Natural Resources Defense Council, 749 F.3d 776 (9th Cir. 2014). In an en banc decision, the Ninth Circuit found that a U.S. Bureau of Reclamation (Reclamation) action renewing settlement contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). The Ninth Circuit’s ...

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo ...

On August 4, 2014, the U.S. Fish and Wildlife Service (Service) announced its decision to list two small Texas minnows -- the sharpnose shiner (Notropis oxyrhynchus) and smalleye shiner (N. buccula) -- as endangered under the Endangered Species Act (ESA).  The two Texas minnows, which have been candidates species since 2002, measure less than 2 inches and have a life span of less than three years.  According to the announcement issued by the Service, the "two primary  factors affecting the status of the shiners are river fragmentation and alterations of the natural stream flow regime ...

Today, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) protecting three flowers under the Endangered Species Act (ESA). The three flowers -- the Short's bladderpod (Physaria globosa), fleshy-fruit gladecress (Leavenworthia crassa), and whorled sunflower (Helianthus verticillatus) -- are found in Alabama, Georgia, Indiana, Kentucky, and Tennessee.

According to the Service, whorled sunflowers are primarily threatened by industrial forestry and pine plantations. The flowers grow to be six feet tall and live in moist, prairie-like areas, woodlands ...

On July 29, 2014, the U.S. House of Representatives passed Endangered Species Act (ESA) reform legislation introduced by members of the House Natural Resources Committee. As previously reported, the legislation consists of four bills seeking to amend the ESA by, among other things, requiring federal agencies to release to the public all data used to make its listing decisions, disclosing the amount of federal funds used in ESA-related lawsuits, and requiring that the best scientific and commercial data available include information provided by state, tribal, and county ...

On July 23, 2014, the United States Court of Appeals for the Tenth Circuit held that the U.S. Environmental Protection Agency (EPA) was not required to consult with the U.S. Fish and Wildlife Service regarding potential endangered species impacts of air quality regulations designed to reduce visual impacts of the Four Corners Power Plant on the Grand Canyon and other national parks.  WildEarth Guardians v. EPA, 2014 U.S.App.LEXIS 13968.  The court concluded that the EPA decision not to regulate air pollutants with potential to impact endangered fish was not an action subject to the ...

The National Marine Fisheries Service (NMFS) has released its final recovery plan for Central Valley spring-run Chinook salmon, Sacramento River winter-run Chinook salmon, and Central Valley steelhead.  The website for the recovery plan is here.  Along with the recovery plan, NMFS released a number of supporting documents on the website.  Sacramento River winter-run Chinook salmon is listed as endangered under the Endangered Species Act (ESA), and Central Valley spring-run Chinook salmon and Central Valley steelhead are listed as threatened under the ESA.

At the same time that ...

The U.S. Fish and Wildlife Service (Service) recently announced a proposed policy establishing credits for voluntary prelisting conservation actions for imperiled species. The policy is intended to establish an additional measure for encouraging and awarding voluntary actions to protect species that may be listed as endangered or threatened under the Endangered Species Act (ESA).

The new policy would apply in two possible situations. For non-federal actions that may harm listed species and require a take permit under section 10 of the ESA, the policy would credit actions taken ...

Last Friday, the U.S. District Court for the Eastern District of California denied (pdf) a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs brought suit against the U.S. Bureau of Reclamation (Bureau), arguing the Bureau violated the National Environmental Policy Act (NEPA) by approving the San Luis & Delta-Mendota Water Authority (SLDMWA) Water Transfer Project, which would allow water rights holders or contractors north of the Delta to sell water to members of SLDMWA, whose members then ...

On Wednesday, two final rules were released designating critical habitat for the loggerhead sea turtle (Caretta caretta), a species listed as endangered under the Endangered Species Act (ESA). Together, the rules represent one of the largest areas of critical habitat ever designated under the ESA. The first rule, promulgated by the National Marine Fisheries Service (NMFS), designates over 300,000 square miles of habitat in the northwest Atlantic Ocean. The second rule, promulgated by the U.S. Fish and Wildlife Service (FWS), designates 685 miles of land along the coasts of the ...

A Regional Director for the U.S. Fish and Wildlife Service (Service) has directed federal biologists to withdraw their proposed rule to list the wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act. As we reported here, the Service proposed listing the wolverine in February 2013, citing habitat loss due to climate change as the primary threat to the species. Officials in Wyoming, Idaho, and Montana objected to the proposed listing, arguing climate change conclusions are premature. In response to these objections, the Service asked a panel of nine biologists ...

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) reclassifying the U.S. breeding population of the wood stork (Mycteria americana) from endangered to threatened.

According to the Service, when the wood stork was listed as endangered in 1984, the population was decreasing at a rate of five percent per year. The Service now reports that the U.S. breeding population has increased its number of nesting pairs, and has expanded its breeding range.

Wood storks use a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. The Service’s ...

In The Aransas Project v. Shaw, the Fifth Circuit reversed a lower court’s finding that the Texas Commission on Environmental Quality violated section 9 of the Endangered Species Act through its combined actions and inactions with respect to management of water diversions in the San Antonio and Guadalupe River systems. We reported on the lower court decision here. Provided the decision stands, it suggests that the standard for liability under section 9 is not a strict liability standard, but instead requires courts to assess whether take was reasonably foreseeable drawing on common law tort principles.

 The U.S. Fish and Wildlife Service (Service) recently announced that it will be conducting a 12-month status review for the Humboldt marten (Martes americana humboldtensis) to determine whether to list the species as threatened or endangered under the Endangered Species Act (ESA). The Service’s notice (pdf) requests information on the Humboldt marten, and notes the uncertainty surrounding the subspecies’ taxonomic classification. The classification of martens has evolved dramatically over the years, and ongoing genetic research indicates uncertainty in the ...

Today, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered Species Act (ESA).  This phrase plays a key role in the listing and delisting of species, as it appears in the ESA's definition of "endangered species" and "threatened species."  Specifically, under the ESA, an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its ...

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated ...

Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.

For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia ...

Last week, the bipartisan Western Governors' Association (WGA) adopted a resolution urging the federal government to defer to state conservation efforts and to prioritize funding to avoid new listings under the federal Endangered Species Act (ESA). The resolution (pdf) calls for state conservation plans to "give rise to a regulatory presumption by federal agencies that an ESA listing is not warranted" and purports to provide clear guidance to states regarding minimum requirements for state and multi-state conservation plans. It also notes that states "should be included as ...

Citing new genetic evidence that the coastal California gnatcatcher is not a distinct subspecies as previously claimed, but is part of a single, healthy and abundant species that ranges from Southern California to the southern tip of Baja, Mexico, the National Association of Home Builders and several other parties filed a petition to remove the coastal California gnatcatcher from the list of threatened species.  The petition to the U.S. Fish and Wildlife Service (Service) is based on a peer-reviewed study of gnatcatcher DNA by Dr. Robert Zink of the University of Minnesota and ...

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the New Mexico meadow jumping mouse (Zapus hudsonius luteus) as endangered under the Endangered Species Act.

The jumping mouse is a small mammal that hibernates eight or nine months out of the year, which is longer than most mammals. In the three or four months it is active, the jumping mouse must breed, birth, raise its young, and store up sufficient fat reserves to survive the next hibernation period. In addition, the jumping mouse has a limited lifespan of three years or less, and produces only one small ...

In a split decision and contrary to the recommendation of the Department of Fish and Wildlife (Department), the California Fish and Game Commission (Commission) voted to list the gray wolf (Canis lupis) as endangered. The decision was lauded by representatives of environmental groups but opposed by representatives of farming and ranching interests. It affirms the willingness of the Commission, made up of political appointees, to overrule scientific staff when making critical decisions at the juncture of science and policy.

As we reported here, four environmental groups ...

On June 2, 2014, the U.S. Fish and Wildlife Service (Service) announced the listing of the Webber's ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act, and the designation of 2,170 acres of critical habitat in Plumas, Lassen, and Sierra Counties in northeastern California, and in Washoe and Douglas Counties in northwestern Nevada.  As stated in a related announcement issued by the Service, the rule listing the Webber's ivesia and designating critical habitat will not become effective until July 3, 2014.  The identified threats to the species include ...

On May 12, 2014, Appellees Kern County Water Agency, Coalition for a Sustainable Delta, State Water Contractors, and Metropolitan Water District of Southern California filed a petition for rehearing en banc, seeking further review of the recent Ninth Circuit decision relating to the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. San Luis & Delta-Mendota Water Authority v. Jewell, No 11-1587 (9th Cir. March 13, 2014). Two other petitions for rehearing en banc ...

Recently, the United States District Court for the District of Montana ordered (pdf) the U.S. Fish and Wildlife Service (Service) to develop a timeline for completion of recovery planning for the Canada lynx (Lynx canadensis). The court determined that the Service’s purported justifications for not developing and implementing a recovery plan for the species were insufficient in light of its statutory duty and its own internal guidelines setting forth a timetable for recovery planning.

In Friends of the Wild Swan v. Ashe, 2014 U.S. Dist. LEXIS 65378 (D. Mont. 2014), plaintiffs ...

On May 7, 2014, a U.S. District Court for the Eastern District of North Carolina enjoined (pdf) coyote hunting in five North Carolina counties that provide a recovery area for the red wolf (Canis rufus), a species listed as endangered under the Endangered Species Act (ESA). In Red Wolf Coalition v. North Carolina Wildlife Resources Commission, No. 2:13-CV-60-BO (N.D.N.C. May 7, 2014), plaintiffs sought to enjoin the North Carolina Wildlife Resources Commission (Commission) from issuing permits for coyote hunting in an area spanning 1.7 million acres. The land serves as a recovery ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule (pdf) listing the Kentucky Glade Cress (Leavenworthia exigua var. laciniata) as threatened species under the Endangered Species Act (ESA). The Kentucky Glade Cress, a small, lilac-colored wildflower, is located in parts of Jefferson and Bullitt counties in Kentucky.  The primary threat to the species is the loss and degradation of its habitat, caused by development, roads, utilities, and conversion of its habitat to lawns. The final rule will become effective on June 5, 2014.

The Service also issued a proposed ...

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service proposed two important new rules (50 CFR Part 402 and 50 CFR Part 424) implementing the critical habitat provisions of the Endangered Species Act (ESA).  The proposed rules expand the regulatory definition of critical habitat and adverse modification – key ESA terms governing federal agency actions on tens of millions of acres of public and private land throughout the nation.  The federal wildlife agencies also proposed a new policy governing the exclusion of areas from critical habitat ...

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes.  The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a ...

In Souza v. California Department of Transportation, No. 13-cv-04407 (N.D. Cal. May 2, 2014), plaintiffs sought to enjoin a project proposed by the California Department of Transportation (Caltrans) to modify U.S. Route 199 and State Route 197 in Del Norte County, California, near the Smith River. Plaintiffs challenged the adequacy of Caltrans’ consultation with the National Marine Fisheries Service (Service) regarding the impacts of the project on the Southern Oregon Northern California Coast Evolutionary Significant Unit of the threatened coho salmon (SONCC coho). As ...

On May 2, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding concluding that, based on the best available scientific and commercial information, the endangered Lane Mountain milk-vetch (Astragalus jaegerianus), a plant found in a small portion of the central Mojave Desert in San Bernardino County, should not be reclassified as threatened under the Endangered Species Act.  The Service found that the "primary threats to Lane Mountain milk-vetch are habitat loss and disturbance from military training, OHV use, recreational mining ...

The U.S. Fish and Wildlife Service (Service) published a final rule (pdf) in the Federal Register listing the Sierra Nevada yellow-legged frog (Rana Sierrae) and the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus Canorus) as threatened.  The agency proposed listing the species on April 25, 2013, following a decade of litigation intiiated by the Center for Biological Diversity, as describe in the proposed rule.

Recent research based on mitochondrial DNA, morphological ...

The House Natural Resources Committee has scheduled a full Committee markup of four bills intended to bring additional transparency to the Endangered Species Act (ESA). The markup, which involves committee debates, amendments, and rewrites of the proposed legislation, is scheduled for this Wednesday, April 30, 2014. The Committee will be reviewing four ESA reform bills introduced last month. As we reported here, the bills would amend the ESA as follows:

H.R. 4315 (21st Century Endangered Species Transparency Act) – Introduced by Rep. Doc Hastings (R-Wash); the bill would ...

As reported by Kristi Pihl of the Tri-City Herald, the Columbia-Snake Irrigators Association has requested that the Governors of Washington, Oregon, and Idaho proceed through the "God Squad" process under the federal Endangered Species Act (ESA) to seek to exempt those who operate on the rivers from having to provide any further mitigation for the local salmon and steelhead populations. 

In the 1979 amendments to the ESA, Congress created the Endangered Species Act Committee (aka, the "God Squad"). The God Squad has the authority to exempt an agency action from the ...

In a unanimous decision, eleven active judges on the United States Court of Appeals for the Ninth Circuit held that the duty to consult under section 7(a)(2) of the Endangered Species Act (ESA) when a federal agency action may affect a listed species or designated critical habitat of such species applies to the decision of the Bureau of Reclamation (Bureau) to renew long-term contracts to provide water to non-Federal parties. The decision, which reversed prior decisions by a three-judge Ninth Circuit panel and federal district court, effectively requires the Bureau to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of contract renewals on the threatened delta smelt and to renegotiate the contracts following such consultation.

The decision has potentially far-reaching implications in California because it suggests that even those who hold long-term contracts with the United States for the provision of water or senior water rights under state law must comply with the Endangered Species Act.

 The Los Angeles Times reports that the California Fish and Game Commission (Commission) unanimously voted to postpone a decision on whether to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA). As we previously reported, the California Department of Fish and Wildlife recommended in February 2014 that the Commission not list the gray wolf under CESA, determining that the scientific evidence does not warrant listing the species at this time. The issue arose in 2011 when a single wolf, OR-7, was spotted in California for the first time.

The five-member ...

Earlier this week, the House Natural Resources Committee held a hearing to discuss Endangered Species Act (ESA) reform. The hearing focused on four bills that seek to require data and spending transparency under the ESA.

As previously reported, an ESA Congressional working group released a final report stating that the ESA is not working. The proposed bills are a result of that final report. Despite a general agreement that the 40-year old ESA should be updated, the hearing displayed the divide between Republicans and Democrats over how to do so.

One of the bills discussed at the ...

Last Thursday, a U.S. District Court for the Northern District of California held (pdf) that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species.

In Center for Biological Diversity v. Bureau of Land Management, No. C 03-02509 SI (N.D. Cal. Apr.3, 2014), environmental group plaintiffs challenged a biological opinion issued by the U.S. Fish and Wildlife Service (Service) to the Bureau of Land Management (BLM). BLM had engaged in section 7 consultation with the Service regarding BLM’s management of the Imperial ...

This week, the United States District Court for the District of Columbia upheld (pdf) two settlement agreements – one between the U.S. Fish and Wildlife Service (Service) and WildEarth Guardians, and the other between the Service and the Center for Biological Diversity – that collectively require the Service to determine whether to list 251 species under the Endangered Species Act (ESA) in accordance with certain deadlines. See National Association of Home Builders v. U.S. Fish and Wildlife Service, No. 12-2013 (Mar. 31, 2014).  Plaintiffs, who included organizations ...

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or ...

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the ...

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain ...

On an issue of first impression, a California court has created a judicial exception to the take prohibition in the state’s fully protected species statutes.  On March 20, 2014, the California Court of Appeal held that the live trapping and translocation of a fully protected species does not constitute prohibited take of the species.  Center for Biological Diversity v. California Dept. of Fish and Wildlife, 2014 Cal.App. LEXIS 256 (March 20, 2014) (pdf).  The decision addresses a common conundrum in California:  whether actions to protect a species authorized by the state and federal ...

Last Thursday, several prominent conservation biologists in Australia called on the Australian government to allow certain endangered animals to become extinct in order to focus conservation efforts on reviving more vital species. The biologists argue that current Australian policies, such as mandatory recovery plans for all endangered species, may have consequences if they are not amended to allow for the "ecological triage of less-vital species. David Bowman, a professor at the University of Tasmania, supported the proposal to focus on the most vital species, noting that ...

Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA.  Currently, the ESA does not include a specific requirement regarding how to account for a species’ population.  Rather, federal agencies are required to use the best scientific and commercial data available when determining whether a species is ...

Today, the United States Court of Appeals for the Ninth Circuit issued a decision (pdf) relating to the 2008 biological opinion (BiOp) issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt. The long-awaited decision (oral argument was held on September 10, 2012) reversed in part and affirmed in part the district court’s judgment invalidating the BiOp and remanding it to the Service. The opinion is authored by Judge Bybee, with partial concurrence and partial dissent by both Judge ...

In an article forthcoming in the Journal of Environmental Studies and Sciences, Dr. Dennis Murphy and I examine a proposal by the Fish and Wildlife Service and National Marine Fisheries Service to amend the existing regulations that implement the interagency consultation process set out in Section 7 of the Endangered Species Act by codifying their pre-existing practice of using surrogates to express the amount or extent of incidental take of listed species.  We describe the proposed rule, place the use of surrogates for conservation planning in historical context, and ...

The U.S. Fish and Wildlife Service (Service) has announced the availability of a revised recovery plan for the pallid sturgeon (Scaphirhynchus albus), a species that is found in the Missouri and Mississippi River basins, has been described as having a "unique dinosaur-like appearance," and has been listed as endangered since 1990.  As summarized by the Service, the revised recovery plan updates the "current understanding of the species life history requirements, identifies probable threats that were not originally recognized, includes revised recovery ...

On February 26, the Alaska Department of Fish and Game petitioned (pdf) the National Marine Fisheries Service (NMFS) to remove the Central North Pacific subpopulation of humpback whales from the federal list of endangered or threatened species. In a press release, the director of Alaska’s Division of Wildlife Conservation declared the species a prime example of a recovered species that should be delisted from the Endangered Species Act (ESA) because the threat of extinction for this subpopulation is gone.

The entire North Pacific humpback whale species (Megaptera ...

 The U.S. Fish and Wildlife Service (Service) recently issued (pdf) a proposed rule to remove Eureka Valley evening-primrose (Oenothera avita ssp. eurekensis) and Eureka dune grass (Swallenia alexandrae) from the federal list of endangered species. The Service’s proposed rule follows its 12-month finding on the Pacific Legal Foundation’s petition to delist the species.

Eureka Valley evening-primrose and Eureka dune grass are endemic to three dune systems in the Eureka Valley, located in Inyo County, California. Eureka Valley is managed by the National Park Service (Park ...