Endangered Species Law & Policy

The Endangered Species Act Congressional Working Group is scheduled to hold a forum tomorrow morning entitled "Reviewing 40 Years of the Endangered Species Act and Seeking Improvement for People and Species."  A press release issued by the Working Group states that the forum "will feature a diverse group of invited stakeholders who will testify on all angles of the ESA, its impacts on species and people over the last 40 years, and potential improvements going forward."  According to a recent story published by the Environment & Energy Daily entitled Sides spar over ...

The U.S. Fish and Wildlife Service (Service) recently proposed listing (pdf) the rufa red knot (Calidris canutus rufa) as threatened under the Endangered Species Act. The red knot is a medium-sized shorebird about 9 to 11 inches in length that migrates more than 9,000 miles annually between its breeding grounds in the Canadian Arctic and Tierra del Fuego at the southern tip of South America. During its migration, the bird spends considerable time along the eastern seaboard of the United States.

According to the Service, the species has declined, in part, due to an increase in ...

On October 3, 2013, the U.S. Fish and Wildlife Service (Service) declined to list (pdf) the Kittlitz’s murrelet (Brachyramphus brevirostris) under the Endangered Species Act. Responding to a petition from the Center for Biological Diversity, the Service concluded after a 12-month finding that, based on the best available scientific and commercial information, listing the species is not warranted at this time.

The Kittlitz’s murrelet is an Alaskan seabird that forages in coastal waters near glacier outflows. The petition to list the species stated that glacier loss due to ...

In December 2012, the National Marine Fisheries Service (NMFS) published (pdf) a proposed rule to list 66 species of reef-building coral as threatened or endangered under the Endangered Species Act (ESA), and to re-classify two species from threatened to endangered.  At that time, NMFS stated that climate change posed one of the most significant threats to these species.  NMFS has now extended (pdf) the deadline for making a final determination on all 68 species for an additional six months, citing scientific disagreement on the sufficiency, accuracy, and applicability of climate ...

As reported earlier today by Emily Yehle of Greenwire, if the U.S. Government fails to avoid a government shutdown before tomorrow, a number of federal agencies, including the U.S. Environmental Protection Agency and U.S. Department of the Interior are planning to "pull the plug on their online presence."  (E&ENewsPM, Sept. 30, 2013).  You may ask, what other impacts will there be as a result of the impending government shutdown?  While, according to the Department of the Interior's website (pdf), as a general matter "Service employees will not continue to work" on court ordered ...

On September 24, 2013, the U.S. Fish and Wildlife Service (Service) entered into a settlement agreement with the Center for Biological Diversity, requiring the Service to determine whether to list nine species under the Endangered Species Act (ESA). The agreement covers three freshwater species, the bridled darter (Percina kusha, formerly Percina sp. cf. macrocephala), Panama City crayfish (Procambarus econfinae), and Suwannee moccasinshell mussel (Medionidus walkeri), which are found in Georgia, Florida and Tennessee. Bicknell's thrush (Catharus bicknelli), a New ...

 The U.S. Fish and Wildlife Service (Service) recently listed (pdf) the Jemez Mountains salamander (Piethodon neomexicanus) as endangered under the Endangered Species Act (ESA). The Service also recently published (pdf) a final rule listing the Texas golden gladecress (Leavenworthia texana) as endangered and the Neches River rose-mallow (Hibiscus dasycalyx) as threatened under the ESA.

The Jemez Mountains salamander is found only in the Jemez Mountains in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval Counties. The salamander is generally found around the rim of ...

Earlier this month, the U.S. Fish & Wildlife Service (Service) announced (pdf) the availability of its recovery plan (pdf) for the threatened southwest Alaska Distinct Population Segment of the northern sea otter (Enhydra lutris kenyoni).  The recovery plan describes the status of the otter, its history, and a number of actions the Service believes will allow for the delisting of the otter.  With respect to the otter's declining status, the recovery plan states that "[t]he only identified threat factor that is judged to have a high importance to recovery is predation[,]" and ...

The U.S. Fish and Wildlife Service (Service) has listed (pdf) the Neosho mucket (Lampsilis rafinesqueana) as endangered and the rabbitsfoot (Quadrula cylindrica cylindrica) as threatened under the Endangered Species Act (ESA).  Both are species of freshwater mussels found in river systems in the eastern half of the United States.

The Service reported that of 16 historical populations of Neosho mucket, only nine remain extant, and of those all but one is declining in numbers.  The Neosho mucket has been extirpated from appriximately 62 percent of its historical range.  ...

The U.S. Fish and Wildlife Service will hold three public hearings on its proposed rule to delist the gray wolf (Canis lupus) from the list of endangered and threatened species. The first hearing is scheduled to occur on September 30, 2013 in Washington, DC. The second will be held on October 2 in Sacramento, California, and the third on October 4 in Albuquerque, New Mexico. As we reported here, the comment period for the proposed rule has been extended to October 28, 2013. For further information regarding the proposed rule and its potential impacts on the Mexican gray wolf (Canis lupus ...

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage ...

On August 20, 2013, the U.S. Court of Appeals for the District of Columbia held (pdf) that appellants’ claims against the U.S. Fish and Wildlife Service (Service) for an alleged failure to take certain actions under the Endangered Species Act (ESA) with respect to the straight-horned markhor (Capra falconeri jerdoni) were moot. 

In 1976, the Service classified the markhor as endangered under the ESA. The species’ primary habitat is the Torghar Hills along the Pakistan-Afghanistan border. In response to the reduction of the markhor population, local tribal leaders formed ...

In American Forest Resource Council v. Ashe, 1:12-cv-00111 (D.D.C. Sept. 5, 2013), the U.S. District Court for the District of Columbia upheld the U.S. Fish & Wildlife Service’s (Service) determination that the Washington, Oregon, and California (tri-state) population of the marbled murrelet (Brachyramphus marmoratus) warrants listing under the Endangered Species Act (ESA) as a distinct population segment (DPS).

Under the ESA, three factors should be considered when determining whether a population constitutes a DPS: (1) the discreteness of the population segment in ...

On September 4, 2013, the U.S. Fish & Wildlife Service announced that the public comment period regarding its proposed rule to remove the gray wolf (Canis lupus) from the list of endangered and threatened species, which was due to close on September 11, has been extended by 45 days through 11:59 p.m. on October 28, 2013.  For a discussion of the proposed rule and its potential impacts on the Mexican gray wolf (Canis lupus baileyi), see our June 20, 2013 post available here.  You may also want to check out Sylvia Fallon's blog post on SWiTCHBOARD, which is available here.

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) downlisting the Santa Cruz cypress (Hesperocyparis abramsiana; previously listed as Cupressus abramsiana) from endangered to threatened under the Endangered Species Act (ESA).

The Service originally listed the Santa Cruz cypress as endangered in 1987, citing development-related threats to the species’ habitat as the reason for its decline. Officials also noted that alterations in the natural pattern of wildfires were having an adverse impact on the species’ population, as the Santa Cruz cypress relies on ...

On September 4, 2013, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) issued a proposal rule to amend the regulations governing consultation under section 7 of the Endangered Species Act (ESA) that would codify the practice of using surrogates to express the amount of extent of anticipated take in an incidental take statement issued concomitant with a biological opinion. The Services indicate that these changes are proposed to improve the flexibility and clarify the development of incidental take statements.

Section ...

In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico.  The press release states that under the two agreements the Fish and Wildlife Service will increase the wolf's recovery territory, stop capturing wolves entering the two states from Mexico, and finalize a rule to allow direct release of Mexican gray wolves into New Mexico.  Under one of the ...

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) listing the Oregon spotted frog (Rana pretiosa) as a threatened species under the Endangered Species Act (ESA).  In addition, the Service has proposed (pdf) designating over 68,000 acres throughout Washington and Oregon as critical habitat for the species.

The Service cited ongoing habitat destruction as the primary threat to the Oregon spotted frog.  Once ranging from British Columbia to northern California, the Oregon spotted frog's historic range has declined by as much as 90 percent due to the filling of ...

On August 28, 2013, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) issued a final rule (pdf) adopting an incremental approach to preparing an economic impact analysis required for a critical habitat designation under the Endangered Species Act (ESA). As a practical matter, this assessment will primarily consist of analyzing the cost of the time other federal agencies must take to consult with the wildlife agencies before authorizing activities within critical habitat. The analysis will largely ignore the underlying costs of listing a ...

On August 22, 2013, U.S. Representative Cynthia Lummis (R-Wyo) and the Chairman of the House Natural Resources Committee, Doc Hastings (R-Wash), announced that the Congressional Endangered Species Act (ESA) Working Group will be holding field hearings in Casper, Wyoming and Billings, Montana to find ways to improve the ESA for both species and people. The hearings, entitled State and Local Efforts to Protect Species, Jobs, Property and Multiple Use Amidst a New War on the West, will focus on efforts to preserve wildlife while maintaining jobs in agriculture, energy, and ...

On August 19, 2013, the U.S. Fish and Wildlife Service (Service) announced (pdf) its decision to list the Austin blind salamander (Eurycea waterlooensis) as endangered and the Jollyville Plateau salamander (Eurycea tonkawae) as threatened under the Endangered Species Act (ESA). While the Service’s proposed listing of the two species designated both as endangered, the Service’s final rule (pdf) lists the Jollyville Plateau salamander as threatened based on new information received since publication of the listing proposal.

In conjunction with listing the two species ...

On August 12, 2013, the National Marine Fisheries Service refused to list the alewife herring (Alosa pseudoharengus) and blueback herring (Alosa aestivalis), concluding that based on the best scientific and commercial data available, neither species warranted protection under the Endangered Species Act.  The determinationn was in response to a petition submitted by the Natural Resources Defense Council.  The news was not all bad for the herring, however, as the National Marine Fisheries Service also stated that it will be working with the Atlantic States Marines ...

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) listing the Graham’s beardtongue (Penstemon grahamii) and White River beardtongue (Penstemon scariosus albifluvis) as endangered species under the Endangered Species Act. In addition, the Service has proposed designating a combined 83,000 acres in Uintah County, Utah as critical habitat for the rare plants.

The two beardtongue species are endemic to oil shale soils, and grow mostly on the Mahogany Ledge in northeast Utah, an area rich in oil shale deposits. The Service has cited oil and gas exploration and ...

On August 2, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) listing Webber’s ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act (ESA). The Service also proposed (pdf) designating approximately 2,011 acres of critical habitat for the species in Plumas, Lassen, and Sierra Counties in northeastern California, and Washoe and Douglas Counties in northwestern Nevada.

Webber’s ivesia is a low, spreading, perennial forb in the rose family with grayish-green foliage, wiry stems, and clusters of small, yellow flowers. The species ...

Yesterday, the National Marine Fisheries Service issued a notice of proposed rule to designate approximately 1,184 square miles of marine habitat in the Puget Sound as critical habitat for the threatened distinct population segment of yelloweye rockfish (Sebastes ruberriums), the threatened distinct population segment of canary rockfish (Sebastes pinniger), and the endangered distinct population segment of bocaccio (Sebastes paucispinus).  The notice states that comments on the proposed rule are due on November 4, 2013, and requests for public hearing must be made in ...

On July 22, 2013, the U.S. District Court for the Western District of Washington held (pdf) that plaintiffs’ claims regarding the U.S. Fish and Wildlife Service’s (Service) alleged violation of section 10 of the Endangered Species Act (ESA) were not subject to the 60 day notice of intent to sue (NOI) requirement.

In 1997, the Washington Department of Natural Resources (DNR) adopted a habitat conservation plan to govern logging in the forests of southwest Washington.  The marbled murrelet (Brachyramphus marmoratus) is one of a number of endangered and threatened species covered ...

The National Marine Fisheries Service (NMFS) recently issued a proposed rule (pdf) designating critical habitat for the Northwest Atlantic Ocean loggerhead sea turtle Distinct Population Segment (DPS) (Caretta caretta) within the Atlantic Ocean and the Gulf of Mexico. The 36 marine areas proposed for designation as critical habitat contain one or a combination of nearshore reproductive habitat, winter habitat, breeding areas, and migratory corridors.

The loggerhead sea turtle was listed worldwide as a threatened species under the Endangered Species Act (ESA) on July 28 ...

Yesterday, the House Committee on Natural Resources held a second hearing regarding implementation and impacts of the Endangered Species Act.  Today's hearing was titled: Transparency and Sound Science Gone Extinct?: The impacts of the Obama Administration's Closed-Door Settlement on Endangered Species and People.  In a summary description issued before the hearing, the Committee stated that it anticipated the hearing would "highlight how the lack of data transparency is leading to increased numbers of species being listed and critical habitat being ...

On July 23, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a lower court decision upholding restrictions on commercial fishing in Alaska to protect the western Distinct Population Segment (DPS) of the Steller sea lion (Eumetopias jubatus), which is listed under the Endangered Species Act (ESA). The measures, imposed in 2010 by the National Marine Fisheries Service (NMFS), restrict the mackerel and cod fisheries in the western Aleutian Islands. NMFS determined such restrictions were necessary to ensure an adequate supply of prey for the western DPS of the ...

On July 23, 2013, the U.S. Fish and Wildlife Service (Service) released a final plan to shoot approximately 3,600 barred owls (Strix varia) in the Pacific Northwest in order protect the northern spotted owl (Strix occidentalis caurina), which is listed as threatened under the Endangered Species Act.

The plan provides that the Service will use shotguns to remove barred owls from four test areas in Washington, Oregon, and California. According to the Service, the barred owl is a threat to the northern spotted owl because it outcompetes the smaller and less aggressive spotted owl for ...

On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.

Section 7(a)(2) requires a federal action agency such as the ...

On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").

In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its ...

The U.S. Fish and Wildlife Service (Service) announced this week that it will extend for six months a final decision on whether to list the Gunnison sage-grouse (Centrocercus minimus) under the Endangered Species Act (ESA), and whether to designate 1.7 million acres in Colorado and Utah as critical habitat for the species.

In January of this year, the Service proposed listing the Gunnison sage-grouse as an endangered species and designating critical habitat for it.  As we previously reported, the Service subsequently extended the comment period from March 12 to April 2, 2013.  The ...

On June 24, 2013, the U.S. District Court for the District of Montana held (pdf) that the U.S. Forest Service (Service) violated section 7 of the Endangered Species Act (ESA) by failing to consult on the impacts of a vegetation management project on Canada lynx (Lynx canadensis) in the Helena National Forest.

Plaintiffs argued that the Service violated section 7 of the ESA by failing to consult with the U.S. Fish and Wildlife Service regarding the impacts of the proposed project on grizzly bears (Ursus arctos horribilis) and Canada lynx. The Service argued that ...

Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental ...

On July 1, 2013, the United States District Court for the Northern District of California issued an order (pdf) granting, in part, Plaintiffs’ motion for attorneys fees in Wild Equity Institute v. City and County of San Francisco, N.D. Cal. Case No. C 11-958. In the order, the court awarded plaintiffs just 25 percent of the fees requested. The court had previously dismissed the case as moot, which we reported here.

Plaintiffs initiated the lawsuit in an effort to require the City to obtain an incidental take permit under section 10 of the Endangered Species Act (ESA) for the operation of ...

The U.S. Fish and Wildlife Service (Service) designated 2,485 acres in Kern County and Kings County in California as critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus).  The Buena Vista Lake shrew is a small, insect-eating mammal native to the southern San Joaquin Valley.

In 2005, the Service issued a final rule designating just 84 acres as critical habitat.  That rule was challenged, and the Service settled the lawsuit and initiated a new rulemaking.  Pursuant to that rulemaking process, in 2012 the Service issued a proposed rule designating 5,182 acres as ...

Today, the National Marine Fisheries Service (NMFS) completed its status review of the northeastern Pacific population of white shark (Carcharodon carcharias) and concluded (pdf) that listing the species under the Endangered Species Act is not warranted. According to Heidi Dewar, a fisheries research biologist at NMFS, the agency felt that there were more than 200 mature females alone, an indication of a total population of at least 3,000." NMFS determined that the population is neither in danger of extinction throughout all or a significant portion of its range nor likely to ...

 The U.S. Fish and Wildlife Service (Service) recently published a proposed rule (pdf) to list the Kentucky glade cress (Leavenworthia exigua var. laciniata) as threatened under the Endangered Species Act (ESA). The Service also proposed (pdf) designating critical habitat for the species.

The Service previously identified the Kentucky glade cress as a candidate species on November 9, 2009. However, it was designated as a Listing Priority Number (LPN) 3. LPNs are assigned based on the immediacy of the threat to the species, as well as taxonomic status. As an LPN 3, Kentucky glade ...

On June 13, 2013, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA) throughout the United States and Mexico. The proposed rule also proposes to maintain protection for the Mexican gray wolf (Canis lupus baileyi) in the Southwest by listing it as endangered under the ESA. Presently, the gray wolf is listed in 42 states, including California. 

Previously, the Service determined (pdf) that the southwestern population of the gray wolf – known as the Mexican gray wolf – may warrant a ...

On June 5, 2013, the U.S. Fish and Wildlife Service (Service) denied (pdf) two petitions to remove captive populations of the scimitar-horned oryx (Oryx dammah), dama gazelle (Gazella dama), and addax (Addax nasomaculatus) from the List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA). In denying the petitions, the Service found it did not have the discretion to differentiate the listing status of animals in captivity from those in the wild.

The petitions, brought by Safari Club International and the Exotic Wildlife Association, sought to delist only ...

In a published opinion (pdf) affirming the denial of preliminary injunctive relief, the U.S. Court of Appeals for the Ninth Circuit held that "there is no statutory mandate to consider cumulative effects during informal consultation."  Conservation Congress v. U.S. Forest Serv., No. 12-16452 (June 13, 2012).

In order to address issues in the Shasta-Trinity National Forest, the U.S. Forest Service proposed the Mudflow Vegetation Management Project (Project).  The Project included a variety of activities, including thinning, sanitation, and regeneration.  Because the ...

The Trinity River Hatchery, which is operated by the California Department of Fish and Wildlife and funded by the U.S. Bureau of Reclamation, has a production capacity of approximately 40 million salmonid eggs.  Operations at the Hatchery are intended to mitigate for lost salmonid habitat due to the construction and operation of various water projects.  However, a recent lawsuit filed by the Environmental Protection Information Center alleges that instead of mitigating for impacts to endangered and threatened salmon and steelhead, the Hatchery is "taking" the protected species ...

Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at on-the-ground-levels in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.

Natural Resources Committee ...

On May 10th, the U.S. Fish and Wildlife Service (Service) announced that it had approved the Tehachapi Uplands Multiple Species Habitat Conservation Plan (Plan), which will provide protections for 25 species of plants and animals, while permitting limited development and other land use activities on designated areas within Tejon Ranch. Founded in 1843, Tejon Ranch is the largest contiguous expanse of private land in California. 

Many years in the making, the Plan will protect wildlife habitat and enhance species conservation on over 140,000 acres. The Plan provides ...

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 ...