Endangered Species Law & Policy

This week, the U.S. Fish and Wildlife Service (FWS) published a 12-month finding on a petition to revise the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) under the Endangered Species Act (ESA).  The Mount Graham red squirrel is a subspecies of red squirrel occurring only in certain high-elevation areas of the Coronado National Forest in Arizona. 

In December of 2017, a group of eNGOs including the Center for Biological Diversity submitted a petition to FWS, requesting that the agency expand the subspecies’ ...

This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty Act (“MBTA”).  The documents evaluate the potential for the proposed rule to impact small entities, including businesses, governmental jurisdictions, and other organizations.

When federal agencies issue a new proposed or final rule, they are required under the Regulatory Flexibility Act of 1980 (“RFA”) to evaluate the potential effects ...

On July 13, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the pearl darter (Percina aurora) under the federal Endangered Species Act (ESA).  Listed as a threatened species under the ESA in September 2017, the pearl darter is a small, snub-nosed fish whose historical range includes Mississippi and Louisiana.  The proposed critical habitat designation for the pearl darter includes a total of approximately 517 river miles along the Pascagoula River and Pearl River basins, which run across multiple counties in ...

On July 7, 2021, the U.S. Fish and Wildlife Service (FWS) published a proposed rule in the Federal Register announcing the agency’s finding that the razorback sucker (Xyrauchen texanus) no longer warrants listing as an endangered species under the federal Endangered Species Act (ESA). As such, FWS has proposed to downlist the species to threatened status.

The razorback sucker is a freshwater fish measuring up to 3 feet long that gets its name from the bony ridge behind its head. The species is commonly found throughout the reservoirs, floodplains, and backwaters of the Colorado ...

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

On June 29, 2021, fourteen members of Congress delivered a letter to Secretary of the Interior Deb Haaland urging the U.S. Fish and Wildlife Service (Service) to use its authority to list the monarch butterfly (Danaus plexippus) on an emergency basis under section 4 of the Endangered Species Act (ESA). The letter, which garnered only Democratic support, notes that the population of western monarchs has sunk to under 2,000 individuals and states that immediate action is necessary to prevent extinction of the species.

Section 4 of the ESA authorizes the Service to immediately place a ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

On May 14, 2021, the Department of Justice filed a brief with the Supreme Court arguing that the Court should not hear the case of Kansas Natural Resource Coalition v. Department of Interior (“KNRC”). KNRC is a challenge to a rule interpreting the Endangered Species Act (“ESA”) that was jointly issued by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) in 2003: The “Policy for Evaluation of Conservation Efforts When Making Listing Decisions,”(68 Fed. Reg. 15,100 ...

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a U.S. Fish and Wildlife Service (Service) rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act (ESA). See Friends of Animals v. Haaland, Case No. 20-35318 (9th Cir. May 17, 2021); 50 C.F.R. § 424.14(b).

In reaching its decision, the Ninth Circuit reviewed the Service’s rulemaking under a two-step framework established by the Supreme Court in the landmark case Chevron U. S ...

On May 5, 2021, the U.S. Fish and Wildlife Service (“USFWS”) published its updated collision risk model (“CRM”) for bald and golden eagles at wind energy facilities.  The CRM is a complex Bayesian model the USFWS has endorsed to predict eagle fatalities at wind energy facilities seeking eagle incidental take authorization under the Bald and Golden Eagle Protection Act (“BGEPA”).  The USFWS previously published the proposed updates to CRM for public comment on two occasions, seeking input on three alternatives: (1) Use updated species-specific model inputs and use the ...

The U.S. Fish and Wildlife Service (Service) recently announced its finding that three salamander species do not warrant listing as endangered or threatened species under the Endangered Species Act (ESA). The Service’s announcement follows a court-approved settlement agreement in which the Service agreed to make a 12-month finding for the Shasta salamander (Hydromantes shastae), Samwel salamander (H. samweli), and Wintu salamander (H. wintu). The finding comes despite concerns from some environmental groups that a proposed project to raise the height of the Shasta Dam and ...

In the first week of May, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) proposed rules to remove six species from the lists of endangered and threatened wildlife and plants under the Endangered Species Act (“ESA”).

On May 4, 2021, NMFS issued a proposed rule to remove Siderastrea glynni, a coral originally found at Urabá Island, Panama Gulf, from the ESA lists.  The coral was first discovered in 1992 and was initially thought to be the only extant Siderastrea species in the eastern Pacific Ocean.  NMFS received a petition to ...

Please join us on May 6, 2021 from 11:00 a.m. to 12:30 p.m. PT as Nossaman’s Coastal Development and Environment & Land Use Groups present “Charting a Course for Offshore Wind Energy in California” to discuss current proposals and pending regulations concerning offshore wind development along the California coast.

We will be participating on a top tier panel of coastal specialists which will also include: Kate Huckelbridge, Deputy Director of Energy, Ocean Resources & Federal Consistency, CA Coastal Commission; Jennifer Lucchesi, Executive Officer, State Lands ...

This week, the United States Fish and Wildlife Service ("Service") published a final rule designating critical habitat for the northern Mexican gartersnake (Thamnophis eques megalops) under the Endangered Species Act (“ESA”).  The final critical habitat designation includes a total of approximately 20,326 acres of land located in Arizona and New Mexico. 

The northern Mexican gartersnake, an olive-colored snake identifiable by a pattern of vertical yellow stripes and paired black dots lining its body, typically occurs in shallow wetlands and aquatic habitats, such ...

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the role of conceptual ecological models in implementing the federal Endangered Species Act. Conceptual ecological models are a specialized subset of conceptual models generally intended to describe the environmental factors that affect an ecological community, a species, or a population. Conceptual ecological models are useful in a variety of contexts ranging from development of research proposals and monitoring schemes, to regulatory ...

On March 10, 2021, the United States Court of Appeals for the Fifth Circuit upheld a biological opinion (BiOp) and incidental take statement (ITS) issued by the U.S. Fish and Wildlife Service (Service) in connection with a $5.2 billion project to export liquefied natural gas from a terminal located on the south bank of the Brownsville Ship Channel in Cameron County, Texas (Project). Sierra Club v. Dep’t of the Interior, Case No. 20-60319 (5th Cir. 2021).  In reaching its decision, the Fifth Circuit refused to second-guess the agencies consistent with the deferential standard of ...

In the 1978 amendments to the Endangered Species Act (ESA), Congress created the Endangered Species Act Committee, also know as the “God Squad.” The God Squad is composed of mostly Cabinet-level officials and has the authority to exempt a federal agency action from the ESA’s prohibition on taking actions that could lead to the extinction of an endangered or threatened species. While the God Squad has been around for more than four decades, its awesome powers have rarely been invoked. Perhaps due to scientific advances, it is possible that the God Squad may itself be heading for ...

Recently, the Department of the Interior released a pre-publication version of a Federal Register notice delaying the effective date of the Migratory Bird Treaty Act (MBTA) take definitional rule to March 8, 2021, and opening a 20-day public comment period, which will close March 1, 2021.  The MBTA was enacted in 1918 to implement an international convention for the protection of migratory birds in response to declines in populations of a number of species of birds resulting from widespread hunting and poaching.  The take definitional rule states in full:

“The prohibitions of the ...

In December 2020, the United States District Court for the District of Montana issued an order on cross-motions for summary judgment concluding that it lacked jurisdiction—under both the Administrative Procedure Act (APA) and Endangered Species Act (ESA)—to hear a lawsuit involving an environmental group’s denied request to update an existing recovery plan for the grizzly bear (Ursus arctos horribilis). Ctr. for Biological Diversity v. Bernhardt, CV 19-109-M-DLC, at 26 (D. Mont. Dec. 23, 2020) (Order). After listing the grizzly bear nearly half a century ago, the U.S ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

On January 13, 2021, the U.S. Fish and Wildlife Service (Service) published a final rule to remove the inland population of the Interior least tern (Sterna (now Sternula) antillarum) from the list of endangered and threatened wildlife under the Endangered Species Act (ESA).  Originally listed as an endangered species under the ESA in 1985, the Interior least tern is a small, fish-eating bird occurring along the Arkansas, Ohio, Mississippi, Missouri, Red, and Rio Grande rivers.  

Prior to listing, the Interior least tern’s population had fallen below 2,000 as a result of habitat ...

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...

On January 7, 2021, U.S. Fish and Wildlife Service (USFWS) published a final rule limiting the scope of the Migratory Bird Treaty Act (MBTA)’s prohibition on the take of migratory birds. The new rule excludes incidental take, meaning bird mortality that results from an action but is not the purpose of that action. 

This rule is the culmination of Trump Administration efforts that began shortly after it took office to reverse prior agency policy and limit the scope of the MBTA. The rule does not take effect until February 6, 2021 and so may be suspended by the incoming Biden ...

On December 3, 2020, the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, California Department of Fish and Wildlife, and other agencies (collectively, “Agencies”) announced an update to the standard Bank Enabling Instrument (“BEI”) template for use in connection with the development of mitigation banks that will be located in or propose service areas within the State of California.

BEI templates are used in connection with the approval of mitigation banks the purpose of which is to provide mitigation for projects that have received authorizations from ...

On December 17, 2020 the U.S. Fish and Wildlife Service (“USFWS”) published its 12-month finding that listing of the monarch butterfly (Danaus plexippus plexippus) is warranted but precluded by higher priority actions. With this finding, the monarch becomes a candidate species with a listing priority designation of “8.”  An “8” indicates the magnitude of threats to the monarch is moderate to low and those threats are imminent. In the announcement, the USFWS notes that 161 other species are currently prioritized above the monarch for listing consideration. Each year ...

On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...

On November 19, 2020, in a call back to its criminal lawsuit against Joseph “Tiger King” Maldonado-Passage, the U.S. Department of Justice filed a civil lawsuit against the husband and wife team who took over the wildlife park that was front and center throughout the Netflix hit series Tiger King – Jeffrey and Lauren Lowe. Unlike the prior lawsuit against Mr. Maldonado-Passage (previously covered here), the lawsuit against the Lowes does not seek jail time, nor does it seek damages. Instead, the lawsuit asks the U.S. District Court for the Eastern District of Oklahoma to (1 ...

On November 3, 2020, the United States Fish & Wildlife Service (“Service”) published a final rule removing the gray wolf (canis lupus) from the federal list of Endangered and Threatened Species in the lower 48 United States and Mexico. The rule will take effect on January 4, 2021. At the same time, the Service denied a petition, filed by environmental groups, to maintain protections for the gray wolf in the lower 48 United States. However, the Service did maintain the separate listing of the Mexican wolf subspecies as endangered, a listing that was put in place on January 16, 2015; the ...

On November 16, 2020, the U.S. Fish and Wildlife Service (“USFWS”) published its annual review of species that are candidates for listing as either threatened or endangered species, its findings on resubmitted petitions for listing actions, and its annual description of progress on pending listing actions.  Among those pending listing actions are two petitions that are highly relevant for water agencies and water users in California – a petition to reclassify the delta smelt (Hypomesus transpacificus) and the pending listing of the longfin smelt (Spirinchus ...

The United States Fish and Wildlife Service ("Service") recently released a pre-publication version of its final rule to reclassify the American burying beetle (Nicrophorus americanus) from endangered to threatened under the Endangered Species Act (“ESA”).  The final rule will also include 4(d) rule provisions that specify when the ESA section 9 take prohibitions will apply to the beetle.

The American burying beetle, which gets its name from its tendency to burrow under vegetation or into soil during the daytime and throughout the winter hibernation season, is the largest ...

On September 8, 2020, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule codifying procedures for excluding areas of “critical habitat” under section 4 of the Endangered Species Act (ESA). ESA section 4(b)(2) provides discretionary authority to the USFWS and National Marine Fisheries Service (NMFS), as administrators of the ESA, to exclude certain areas from critical habitat designations for species within their purview. These agencies can exclude areas from a critical habitat designation where the agencies conclude the benefits of excluding the areas ...

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

The California Fish and Game Commission deferred the decision on whether to make the western Joshua tree a candidate for listing to a special meeting in September 2020. In a hearing on August 20, 2020, the Commission heard a wide variety of perspectives on whether listing the species may be warranted. The California Department of Fish and Wildlife’s 90-day evaluation recommended a “may be warranted” finding but at the hearing Director Bonham indicated he was open to deferring the decision in order to work with the stakeholders ... 

The Departments of Commerce and the Interior (Departments) have completed a proposed rule to define the term “habitat” as that term is used in the context of designating “critical habitat” under the Endangered Species Act (ESA). The proposed rule will soon be published in the Federal Register. Upon publication, the public will be given 30 days to submit comments. If finalized, the definition will be included in the joint regulations developed by the two Departments to implement section 4(a)(3)(A)(i) of the ESA. The ESA, itself, defines the term “critical habitat” but ...

For the second time in a decade, the U.S. Court of Appeals for the Ninth Circuit has invalidated a decision by the U.S. Fish and Wildlife Service (Service) to remove the Greater Yellowstone grizzly bear (Ursus arctos horribilis) population from the federal endangered species list.  Crow Indian Tribe v. State of Wyoming, Case No. 18-36038 (9th Cir. July 8, 2020).  In 2011, the Ninth Circuit invalidated the decision to delist the Greater Yellowstone grizzly population because the evidence did not support the Service’s conclusion that the decline of white bark pine did not threaten the ...

On June 17, 2020, a federal court in Colorado vacated an incidental take permit (ITP) issued to the Nebraska Public Power District (NPPD) authorizing take of the endangered American burying beetle (ABB) that could occur in connection with NPPD’s construction and operation of the 225-mile R-Project transmission line (R Project). The court vacated the ITP on the grounds that its issuance by the U.S. Fish and Wildlife Service (USFWS) violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and section 106 of the National Historic Preservation Act ...

On June 4, 2020, President Trump signed an executive order to provide federal agencies the foundation to speed up environmental permitting in the wake of COVID-19. While the move was lauded by many, others view the executive order as an impermissible use of executive power to circumvent environmental protections. The Center for Biological Diversity has already announced its plans to pursue litigation challenging the EO, alleging violations of the Endangered Species Act. 

Executive Order 13927, “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency ...

The United States Fish and Wildlife Service ("Service") has recently received an application for an incidental take permit under Endangered Species Act section 10(a)(l)(A) to authorize take of the West Coast distinct population segment ("DPS") of fisher (Pekania pennanti) ("fisher") should it or its subpopulations become federally listed. As we have previously reported, the Service recently listed the Southern Sierra Nevada DPS of fisher as an endangered species.

The permit application, submitted by Oregon-based timberland investment company Chinook Forest Partners ...

On May 15, 2020, the U.S. Fish and Wildlife Service ("Service") published a final rule in the Federal Register announcing the agency’s determination to list the Southern Sierra Nevada (SSN) Distinct Population Segment (DPS) of fisher (Pekania pennanti) as endangered under the Endangered Species Act (ESA).

The fisher is a small, carnivorous mammal in the mustelid (commonly referred to as weasel) family. The SSN DPS of fisher, which occurs in California, was recently determined by the Service to be a separate subpopulation of the West Coast DPS.

The Service first proposed to list ...

While section 9 of the Endangered Species Act (ESA) generally prohibits the “taking” of an endangered species, under section 10 of the ESA the U.S. Fish and Wildlife Service (Service) may issue a permit exempting an activity from the take prohibition if the take is for scientific purposes or to enhance the propagation or survival of an endangered species. Under the authority provided by section 10, the Service established the Captive Bred Wildlife permitting program (Program). The Program permits a registrant to export, import, deliver, receive, carry, sell, transport, and ship an endangered species if such activity is to enhance the propagation or survival of the species.

In the early part of this century the Phoenix Herpetological Society, Inc. (Society) applied to and was registered under the Program for certain species. Over the years the Society applied for various amendments to its registration. Some of these amendments were granted, and some were not.

In February 2018, the Society applied to amend its registration to include the Komodo dragon (Varanus komodoensis) ...

The sweeping and rapid ascent to popularity of Netflix Inc.'s "Tiger King" documentary series has fueled new interest in two congressional bills that stalled in committee last year, and has drawn public attention to a quirk of the Endangered Species Act, or ESA.

I recently authored the article, "'Tiger King' Shines Light on an Endangered Species Act Quirk" for Law360. This piece examines ...

On April 8, 2020 the U.S. Fish and Wildlife Service (Service) announced its next step in conservation of the Monarch butterfly (Danaus plexippus plexippus): finalization of the Nationwide Candidate Conservation Agreement for Monarch Butterfly on Energy and Transportation Lands (Monarch CCAA/CCA). The Monarch CCAA/CCA functions as both a candidate conservation agreement with assurances (CCAA) covering non-federal lands and a candidate conservation agreement (CCA) covering federal lands.

Authorized by Endangered Species Act (ESA) regulations, CCAAs are agreements ...

Many projects require federal incidental take authority due to impacts on species listed under the federal Endangered Species Act (“ESA”). Depending upon the species, this federal take authority is obtained either from the U.S. Fish and Wildlife Service (“USFWS”) or National Marine Fisheries Service (“NMFS”). These agencies provide take authority either through a Section 7 (federal consultation) incidental take statement or Section 10 (Habitat Conservation Plan) incidental take permit. These authorizations almost always require the permittee to undertake ...

The U.S. Fish and Wildlife Service (Service) has withdrawn its 2013 proposals to list the bi-state distinct population segment of the greater sage-grouse (Centrocercus urophasianus) in California and Nevada as threatened, to designate critical habitat, and to issue a species-specific Endangered Species Act section 4(d) rule. The Service indicated in its withdrawal that the agency has concluded that threats to the species were not as significant as the agency believed in 2013.

The listing, critical habitat, and 4(d) rules for the bi-state distinct population segment of the ...

According to a handful of environmental groups, the answer is a definitive yes. And after the U.S. Fish & Wildlife Service (“FWS”) issued a 90-day finding concluding in the alternative, earlier this week three environmental groups decided to take FWS to court. The lawsuit was filed by the Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project. According to the press release issued by one of the environmental groups, FWS “applied the wrong evidentiary standard, and disregarded evidence of factors that imperil the unique and distinct subpopulations of ...

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 ...

The State of California recently sent a 60-day notice of intent to sue to the Secretaries of Commerce and the Interior and concurrently filed a lawsuit in the U.S. District Court for the Northern District of California challenging the biological opinions and associated environmental impact statement (EIS) for operation of the Central Valley Project and State Water Project (collectively, the “Projects”).  The Projects provide water to more than 25 million water users in northern, central, and southern California, and are one of the primary sources of water for wholesale water ...