Endangered Species Law & Policy

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...

The impacts of the federal government’s partial shutdown have been felt nationwide, as restricted operations and furloughs delay or otherwise complicate governmental processes. As an example, E&E News reports that conservation organizations’ efforts to formally protest proposed revisions to greater sage grouse (Centrocercus urophasianus) conservation plans have been thwarted by alleged problems with the Department of Interior’s website, which restricted access to certain documents due to the partial government shutdown.

The deadline for filing protests to the ...

Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) to designate approximately 12.28 acres of critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) in Pima County, Arizona.  The proposed critical habitat would be located entirely within the Organ Pipe Cactus National Monument.

The Service previously issued a final rule listing the species as endangered under the Endangered Species Act (ESA) in September 2017, finding that the Sonoyta mud turtle has been threatened by habitat loss and degradation due to surface water loss and riparian ...

On November 4, 2018, the U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of conservation organizations Red Wolf Coalition, Defenders of Wildlife, and Animal Welfare Institute in a case challenging the U.S. Fish and Wildlife Service’s (FWS) administration of the recovery program for endangered red wolves (Canis rufus).

FWS began reintroducing red wolves in North Carolina in 1987.  Red wolves were designated as a non-essential experimental population under section 10(j) of the Endangered Species Act (ESA).  As such, FWS may only ...

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...

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 ...

The last several days have seen a flurry of activity in the federal courts in matters involving the Endangered Species Act (ESA):

• In Crown Indian Tribe v. United States, CV 17-89-M-DLC, the U.S. District Court for the District of Montana vacated (pdf) a June 30, 2017 final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Greater Yellowstone Ecosystem population of grizzly bear (Ursus arctos horribilis). The court held that the Service violated the ESA when it delisted the Greater Yellowstone grizzly distinct population segment (DPS) without any analysis of ...

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

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 ...

In late May 2018, the Klamath Tribes filed a complaint in the United States District Court for the Northern District of California seeking to shut down the Bureau of Reclamation’s Klamath Irrigation Project, which supplies water to thousands of family farms in northern California and southern Oregon. The gravamen of the Tribes’ complaint is that two fish – the Lost River sucker and shortnose sucker – are in dire straits and threatened with extinction by diversion of water from Upper Klamath Lake to support farming.  On the heels of filing their complaint, the Tribes filed a ...

On Friday, May 18, 2018, agencies and organizations throughout the United States will celebrate the 13th annual Endangered Species Day, which recognizes conservation efforts that protect our nation's imperiled species and their habitats.  Events are scheduled throughout the country to celebrate our biodiversity and efforts to conserve that diversity.

Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 ...

As we reported here, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, No. 17-71, on January 22, 2018.  Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated critical habitat for the dusky gopher frog (Rana sevosa) and included areas within the critical habitat that the frog does not and could not inhabit. Specifically, the ...

U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in take of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance ...

On April 2, 2018, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) a district court order directing that the National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers (Corps) and U.S. Bureau of Reclamation (Bureau) (collectively, the Federal Agencies) conduct spill operations and fish monitoring at dams and related facilities in the Federal Columbia River Power System (FCRPS).  The appeal was the latest development in a long-running dispute regarding salmon and steelhead species listed under the Endangered Species Act (ESA) that are impacted by FCRPS ...

On April 2, 2018, the U.S. Fish and Wildlife Service (Service) proposed downlisting the Hawaiian goose (Branta sandvicensis), locally known as the nene, from endangered to threatened under the Endangered Species Act (ESA).  The Service also proposed adopting a special rule pursuant to ESA section 4(d), known as a section 4(d) rule, allowing incidental take of nene for particular conservation and law enforcement functions.

The nene was federally listed as endangered in 1967, after the population fell below 30 individuals on Hawaii’s Big Island.  The Service instituted a ...

On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).

On March 16, 2018, Nossaman Environment and Land Use Law Partner Svend Brandt-Erichsen will be serving as a member of the faculty for The Seminar Group’s CLE and Foresters program Pacific Northwest Timberlands Management: Regulations, Litigation, and Business Considerations. 

The full conference, held from March 15-16, 2018, at the Portland, Oregon World Trade Center, will also be available via live webcast and on demand following the live presentation.  Mr. Brandt-Erichsen’s presentation, entitled Practice Pointers for Energy Projects on Timberlands, will take place at 2:30 p.m. PT and will cover:  energy project permitting needs and timelines; potential wildlife impacts and related mitigation needs; and providing construction access and access during the project’s operating life.

Additional topics to be addressed at the conference include:

On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA).  This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark.  In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range ...

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed (pdf) that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern spotted owl (Strix occidentalis caurina) did not violate the Migratory Bird Treaty Act (MBTA).  The U.S. District Court for the District of Oregon held that nothing in the MBTA limits take of a species for scientific purposes to only those situations where the research is aimed at conservation of the species taken.

The case arose from the Service’s 2008 Recovery ...

Nossaman LLP’s own Steven P. Quarles and Brooke M. Wahlberg are co-chairing CLE International’s upcoming 2^nd Annual MBTA and BGEPA:  Hot Topics in Avian Protection conference.  This timely, in-person CLE will explore the complexities of federal wildlife laws and rules to protect migratory birds and eagles under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).  Speakers will include state and federal policy makers, industry leaders, environmental advocates, and leading practitioners in the field.  Held in Denver, Colorado, from November 30 through December 1, the conference presents a unique opportunity for professionals involved in and affected by endangered species issues, rules, and regulations to learn from in-depth presentations on topics including:

On December 27, 2016, the U.S. Fish & Wildlife Service (FWS) issued its final Endangered Species Act (ESA) Compensatory Mitigation Policy (Policy) – the first policy to comprehensively address compensatory mitigation under the ESA.  The Policy applies to all forms of compensatory mitigation involving ESA compliance required or recommended by FWS, including conservation banks, in-lieu fee programs, permittee-responsible mitigation, and other third-party mitigation mechanisms.  It is a step-down policy addressing the compensatory mitigation component of the mitigation ...

On December 23, 2016, the U.S. Fish and Wildlife Service published a notice of availability and request for public comment in the Federal Register with respect to the draft Environmental Impact Report/Statement (EIR/S) for the City of San Diego Vernal Pool Habitat Conservation Plan (VPHCP).  Comments are due by February 21, 2017.  The species covered by the VPHCP were previously covered by the San Diego Multiple Species Conservation Program, but the portion of that Plan providing coverage for vernal pool species was struck down by the United States District Court for the Southern ...

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program since the program's establishment in 2009.  Programmatic permits may be sought to authorize eagle take that is associated with, but is not the purpose of, an activity if such take is compatible with the preservation of the bald eagle and the golden eagle and if the take is unavoidable even though advanced conservation practices are being implemented.

Alta ...

On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).

The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA.  According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively ...

In a year that has already seen its fair share of attempts to reform the Endangered Species Act (ESA), another proposal has made its way into the House of Representatives.  Representatives Don Young (R-Alaska) and Debbie Dingell (D-Michigan) introduced the Recovering America’s Wildlife Act (H.R. 5650) on July 7, 2016.  The bill is based on a plan unveiled by the Blue Ribbon Panel on Sustaining America's Diverse Fish and Wildlife Resources four months ago.

H.R. 5650 would direct approximately $1.3 billion each year from federal energy and mineral development revenues into state-led ...

On June 28, 2016, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) released draft revisions to their joint Habitat Conservation Planning Handbook (Handbook).  The proposed revisions are intended to address concerns raised by the regulated community regarding the habitat conservation plan (HCP) program implemented under section 10 of the Endangered Species Act (ESA).

To apply for an incidental take permit under ESA section 10(a)(1)(B), an applicant must develop an HCP.  The Handbook, initially released in 1996 and revised by ...

After filing an appeal with the U.S. Court of Appeals for the Fifth Circuit less than two weeks prior, on May 10, 2016, the U.S. Fish and Wildlife Service (Service) filed an unopposed motion to voluntarily dismiss its appeal of the district court decision that vacated the listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  The U.S. District Court for the Western District of Texas, Midland Division, identified a number of errors in the Service’s evaluation of the species under the criteria laid out in the ...

On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Migratory Bird Treaty Act (MBTA).  The Oversight Hearing is entitled The Costly Impacts of Predation and Conflicting Federal Statutes on Native and Endangered Species.  Anticipated topics for discussion include addressing the fact that conflicts between federal statutes often prevent agencies and federal officials from effectively reducing ...

On December 10, 2015, the California Fish and Game Commission (Commission) voted to advance the tricolored blackbird (Agelaius tricolor) as a candidate species for listing under the California Endangered Species Act (CESA).  The species is now subject to the same legal protections as endangered or threatened species under CESA.

As we previously reported, on June 11, 2015, the Commission voted not to make the tricolored blackbird a candidate for listing under CESA.  The species had been listed on an emergency basis in December 2014 but, as a result of the Commission’s inaction in ...

On November 3, 2015, the President issued a memorandum entitled Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment. In it, he states [t]his memorandum will encourage private investment in restoration and public-private partnerships, and help foster opportunities for businesses or non-profit organizations with relevant expertise to successfully achieve restoration and conservation objectives. The memo includes five sections: policy, definitions, federal principles for mitigation, federal action to strengthen ...

On the heels of the recent U.S. Fish and Wildlife Service (Service) decision not to list the greater sage grouse (Centrocercus urophasianus) under the Endangered Species Act and the concurrent Bureau of Land Management (BLM) issuance of Records of Decision on over 98 land use plans focused on sagebrush habitat, the United States Geological Survey (USGS)  and many other agencies announced their issuance of part one of a three-part handbook series focused on sagebrush steppe ecosystems.  Several federal and state entities, including the U.S. Joint Fire Science Program and National ...

On October 16, 2015, the California Department of Fish and Wildlife (CDFW) and the Bureau of Land Management (BLM) announced the signing of a conservation agreement intended to provide greater protections and more flexibility in the management of impacts to sensitive species and their habitats.  The conservation agreement, called the Durability Agreement, will allow CDFW to use BLM lands for various conservation actions, and occasionally for project-level mitigation to meet California state standards.  The Durability Agreement, developed during coordination between CDFW ...

On September 22, 2015, Secretary of the Interior Sally Jewell announced that the greater sage-grouse (Centrocercus urophasianus) does not warrant protection under the Endangered Species Act (ESA).  The Department of the Interior is calling the greater sage-grouse strategy the largest land conservation effort in U.S. history and a 21^st-century approach to conservation.  In reaching its not warranted finding, the U.S. Fish and Wildlife Service (Service) relied upon the collective conservation efforts of the Bureau of Land Management (BLM), U.S. Forest Service (USFS), State ...

On September 15, 2015, the U.S. Fish and Wildlife Service (Service) published (pdf) its 12-month finding on a petition to list the New England cottontail (Sylvilagus transitionalis) as an endangered or threatened species under the Endangered Species Act (ESA).  The Service determined that listing the species is not warranted.

The New England cottontail is the only rabbit native to New England and the area east of the Hudson River in New York.  It was first identified as a candidate species in 2006, when the Service published a finding that listing the New England cottontail as ...

On September 2, 2015, the California Supreme Court heard oral argument in a case involving fully protected species that may have important state-wide implications. (Center for Biological Diversity v. Department of Fish and Wildlife (Newhall Land and Farming Company), No. S217763.)  The case involves challenges to the California Department of Fish and Wildlife’s (Department) environmental impact report (EIR) and approval of the Newhall Ranch project in Los Angeles County.  The Supreme Court is reviewing three issues: (1) whether the California Environmental Quality Act ...

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The murrelet is listed as a threatened species under the Endangered Species Act (ESA).  The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.  61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.

The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District ...

On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey.  Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5.  In pertinent part, these sections make it unlawful to take, possess, or needlessly destroy the nest or eggs of any bird (section 3503) or any bird-of-prey (section 3503.5).  In short, the laws prohibit the take of non-endangered or non-threatened nesting birds and ...

On July 24, 2015, the U.S. Fish and Wildlife Service (Service) published a notice seeking authorization from the Office of Management and Budget to evaluate habitat conservation banks established under the Endangered Species Act (ESA) through a survey of bank sponsors and managers.  80 Fed. Reg. 44,147.  The Service and the Department of the Interior’s Office of Policy Analysis state that they are undertaking this effort to identify potential institutional or other impediments to the habitat conservation banking program, and develop possible options for encouraging expanded ...

On July 6, 2015, the U.S. Fish & Wildlife Service (Service) published a Draft Polar Bear (Ursus maritimus) Conservation Management Plan (Polar Bear Plan).  The Polar Bear Plan identifies the continuing loss of sea-ice habitat as the single greatest threat to the species’ continued survival, and the global reduction of greenhouse gases (GHG) as the most important action to halt and reverse this trend.  The Polar Bear Plan also addresses several high priority actions designed to maintain the polar bear population, including reducing risks from spills, protecting ...

On May 29, 2015, the U.S. Bureau of Land Management (BLM),  in cooperation with the U.S. Forest Service, released Final Environmental Impact Statements for proposed amendments to existing Resource Management Plans (RMPs) for lands in ten western states.  The RMP amendments would establish conservation measures for the greater sage grouse (Centrocercus urophasianus) for approximately 50 million acres of federally-managed lands in California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. The proposed RMP amendments are intended to ...

This Friday, May 15th, marks the 10th anniversary of Endangered Species Day. Events are scheduled throughout the country to recognize conservation efforts to protect endangered species and their habitats, which have occurred primarily as a result of the federal Endangered Species Act of 1973. For example, zoo staff at the Naples Zoo in Florida will be working to educate guests about the endangered animals living at the zoo, including Malayan tigers, cheetahs, and leopards.

Conservation groups are taking the opportunity to raise funds for endangered species conservation. The ...

Last week, Washington State Representative Dan Newhouse introduced the Pacific Northwest Gray Wolf Management Act (H.R. 1985), which would remove Endangered Species Act (ESA) protection for the gray wolf (Canis lupus) within Washington, Oregon, and Utah.  H.R. 1985 is the third bill  introduced in the 114th Congress (2015-2016) proposing to delist the gray wolf within specified states.  H.R. 843 and H.R. 884, introduced in February, would effectively delist gray wolves in Minnesota, Wisconsin, and Michigan and in the Western Great Lakes region and ...

On April 2, 2015, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the northern long-eared bat (Myotis septentrionalis) as threatened under the Endangered Species Act (ESA).  The Service determined that there are several factors affecting the species, but none as severe and immediate to its persistence as the disease known as white-nose syndrome (WNS).  The Service found that WNS is the predominant threat to the northern long-eared bat and, in the absence of WNS, the species would not be experiencing the dramatic decline that it has since WNS emerged.

The ...

On March 27, 2015, the National Marine Fisheries Service (NMFS) accepted two petitions asking NMFS to list the Porbeagle shark (Lamna nasus) as threatened or endangered under the Endangered Species Act either throughout the entirety of its global range, or as distinct population segments (DPS) occurring in the Northwest Atlantic, the Northeast Atlantic, and the Mediterranean.  (80 Fed. Reg. 16,356 [pdf].)  The petitions, filed separately by Wild Earth Guardians and the Humane Society of the United States, were originally rejected as not warranted by NMFS in July 2010.  Both ...

The Transportation Research Bureau ("TRB"), a division of the National Research Council within the National Academies, has released a report entitled Innovative Airport Responses to Threatened and Endangered Species (pdf).  The report is intended to assist airport sponsors and operators in addressing federally listed species issues on or near their facilities.  The introduction to the report includes the following summary of its contents:

"ACRP Report 122 first introduces relevant regulations and then provides a discussion of potential areas of conflict between ...

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 ...

The U.S. Fish and Wildlife Service (Service) recently announced that it is proposing to list the African lion (Pantera leo leo) as threatened under the Endangered Species Act (ESA). The proposed listing is the result of a 2011 petition to list the species as endangered. In the Service’s 12-month finding on that petition, the Service determined that listing the African lion as threatened throughout its range under the ESA is warranted.

The African lion has a large range and its population has ten strongholds totaling approximately 24,000 lions, which is 70 percent of the current ...

The U.S. Fish and Wildlife Service (Service) has published (pdf) a proposed rule to list 21 species as endangered and 2 species as threatened under the Endangered Species Act (ESA). Of the 21 species the Service proposes to list as endangered, twelve are plant species and nine are animal species. The two proposed threatened species are animal species.

All 23 species are found in the U.S. Territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands. According to the proposed rule, the species are experiencing population level impacts as a result of habitat loss and ...