Endangered Species Law & Policy

In Conservation Congress v. Finley, 2012 U.S. Dist. LEXIS 61634 (May 2, 2012), plaintiffs challenge agency decisions that authorize the Beaverslide Timber Sale and Fuel Treatment Project located in the Six Rivers National Forest in northern California on the grounds the project violates the Endangered Species Act (ESA), National Environmental Policy Act, and National Forest Management Act.  Among other things, plaintiffs allege that the Forest Service unlawfully failed to reinitiate consultation with the Fish and Wildlife Service under section 7(a)(2) of the ESA ...

Large-scale habitat conservation plans often are under development for many years then mired in the regulatory process for many more.  The Bay Delta Conservation Plan (BDCP) is not exceptional because it has hit a number of bumps in the road.  But it is exceptional because the plan development and regulatory processes are transparent and being scrutinized by a multitude of interests at every step, including some that will challenge the BDCP in court irrespective of the merits of the Plan for both society and the at-risk species it is designed to protect.  For the past several months, the ...

In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim.  Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012).  Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead ...

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) its decision that the Sonoran Desert Area population of bald eagles (Haliaeetus leucocephalus) does not warrant protection under the Endangered Species Act (ESA).  The Service's conclusion is the result of a revised 12-month finding on a petition to list the population as threatened or endangered under the ESA.  The Service concluded that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS), and that listing the population is not warranted at this time.

The Service originally found that the Sonoran Desert Area population of bald eagles was not a listable entity under the ESA on February 25, 2010.  The Center for Biological Diversity and Maricopa Audubon Society challenged that decision in October 2010.  On November 30, 2011, the U.S. District Court for the District of Arizona ordered the Service to draft a new 12-month finding.

The United States District Court for the Northern District of California issued an order (pdf) denying cross motions for summary judgment in a case brought by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California.  At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA).  Previously, we posted a blog describing plaintiffs' unsuccessful attempt to ...

The United States District Court for the Western District of Washington issued a decision (pdf) denying a request by the National Wildlife Federation (NWF) to enjoin the Federal Emergency Management Agency (FEMA) from providing flood insurance, either directly or through third-party entities, for any new development in certain jurisdictions in the Puget Sound area until the case is resolved on the merits.  We blogged about the case previously, here.  NWF filed the case against FEMA for failure to fully implement the reasonable and prudent alternative (RPA) that ...

On April 17, 2012, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would revise the critical habitat for two endangered plant species located in Riverside County, California: the Munz's onion (Allium munzii) and the San Jacinto Valley crownscale (Atriplex coronata var. natatior).  Under the proposed rule, the Service would designate an additional 8,909 acres of critical habitat for the two species.  Approximately 889 additional acres would be designated for the Munz's onion, and 8,020 acres would be designated for the San Jacinto Valley crownscale.  

The National Marine Fisheries Service (NMFS) recently concluded that listing of the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered is not warranted.  The agency made the 12-month finding following receipt of a petition to list the species in January 2011 from the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.

In its 12-month finding, NMFS included both spring-run and fall-run Chinook salmon populations in the Klamath River Basin ...

In a recently issued draft biological opinion (PDF) , the National Marine Fisheries Service (Service) has concluded that EPA's registration of products containing the herbicides oryzalin, pendimethalin, and tricluralin is likely to jeopardize the survival of approximately half of the Pacific salmonid populations listed under the Endangered Species Act (ESA).

The draft biological opinion is the latest milestone in a series of controversial ESA section 7 consultations between the Environmental Protection Agency (EPA) and the Service regarding EPA's ...

The National Research Council's Committee on Sustainable Water and Environmental Management in the California Bay-Delta issued its final report (pdf) entitled Sustainable Water and Environmental Management in the California Bay-Delta.  The report is 220 pages and includes five chapters as well as a number of appendix.  The National Research Council established the Committee at the request of Congress and the Departments of the Interior and Commerce.  The task statement for this final report was as follows:

• Identify the factors that may be contributing to the decline of ...

The U.S. Fish & Wildlife Service (Service) has determined that protection under the Endangered Species Act (ESA) for the San Francisco Bay-Delta (Bay-Delta) population of longfin smelt is warranted but precluded. The Service also determined that listing the longfin smelt rangewide is not warranted at this time.

The Service’s decision is in response to a lawsuit brought by environmental groups challenging the Service’s 2009 determination (pdf) that the Bay-Delta population of longfin smelt is not distinct from other populations in the species’ geographic range. In a ...

In a case with a complicated procedural history, the United States District Court for the District of Oregon recently held (pdf) that a claim for failure to consult under section 7 of the Endangered Species Act (ESA) arises under the citizen suit provision of that Act rather than under the Administrative Procedure Act (APA).  In doing so, the Court followed the Ninth Circuit's reasoning in Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (pdf) and rejected a contrary interpretation included in proposed findings and recommendations (pdf) of the magistrate.  ...

On Tuesday, March 27, the United States District Court for the Western District of Washington will hear argument in a suit filed by National Wildlife Federation against the Federal Emergency Management Agency (FEMA) for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of the FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

In 2004, the United States District Court for the Western District of Washington ruled

A judge in the District of Washington D.C. recently denied a request by the Humane Society of the United States to halt the killing of sea lions that prey on endangered spring run salmon and steelhead on the Columbia River.  On March 15, 2012, the National Marine Fisheries Service (NMFS) reauthorized the removal of California sea lions that congregate at the Bonneville dam and feed on the listed species as they pass the dam.  NMFS's authorization would have allowed the removal of up to 92 sea lions annually through 2016.  The Humane Society challenged NMFS's decision, claiming that NMFS ...

The U.S. Court of Appeals for the Ninth Circuit has upheld a law that orders the Secretary of the Interior to reissue a rule that delists a distinct population of gray wolves in the northern Rocky Mountains without regard to the Endangered Species Act ("ESA") and without judicial review.  Alliance for the Wild Rockies v. Salazar, No. 11-36552 (9th Cir. March 14, 2012).  As previously reported, in 2009 the Fish and Wildlife Service ("Service") issued what is known as the "2009 Rule," which designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA ...

The Pacific Legal Foundation has filed a lawsuit (pdf) in order to force the Fish and Wildlife Service to make a determination whether to delist the valley elderberry longhorn beetle (Desmocerus californicus dimorphus), a species with a distribution from southern Shasta County to Fresno County in California's Central Valley.  The lawsuit was reported by a number of news outlets including the Sacramento Bee (March 15, 2012, by Matt Weiser).

The valley elderberry longhorn beetle was listed by the Service as threatened under the Endangered Species Act (ESA) in 1980.  At that time, the ...

On March 8, 2012, the Departments of Agriculture and the Interior announced a new program for conserving wildlife habitat on private lands.  Under the new program, Federal, state, and local wildlife experts will jointly identify at-risk species that would benefit from habitat restoration on private lands and, using the best available science, prioritize restoration actions on a regional scale.  These efforts will initially be limited to seven species: the greater sage-grouse (Centrocercus urophasianus), New England cottontail (Sylvilagus transitionalis), bog turtle ...

On March 8, 2012, the U.S. District Court for the Eastern District of California entered judgment in Coalition for a Sustainable Delta and Kern County Water Agency v. Federal Emergency Management Agency, et al., No 1:09-cv-02024 (E.D. Cal.) based on a settlement agreement in which FEMA agreed to request consultation with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) under section 7 of the Endangered Species Act regarding the impacts of its implementation of the National Flood Insurance Program (NFIP) on threatened and endangered ...

On February 29, 2012, the California Natural Resources Agency released approximately 10,000 pages of "preliminary" draft planning documents relating to the Bay Delta Conservation Plan (BDCP) for public review and comment.  The documents fall into two categories: Draft BDCP documents, and Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS) documents (see the list below for details).

The BDCP is being developed in compliance with the Federal Endangered Species Act (ESA) and the California Natural Communities Conservation Planning Act (NCCPA ...

As Dean Kuipers reported in the Los Angeles Times, on February 27, four environmental groups petitioned the California Fish and Game Commission to list the gray wolf (Canis lupis) as endangered under the California Endangered Species Act.  The petition is available here (pdf).  As I previously reported, a lone gray wolf briefly crossed the border from Oregon to California in December 2011.  The last documented gray wolf in the State prior to that time was seen in 1924.

The status of the gray wolf under the federal Endangered Species Act is described here (pdf).

In two recent actions, President Obama and the Fish and Wildlife Service have signaled what may be an important shift in the Obama Administration’s position on the designation of critical habitat for endangered and threatened species. On February 28, 2012, the President issued a memorandum (pdf) directing the Interior Department to propose modifying the Department’s approach to the evaluation of the economic impacts of critical habitat. The President directed the Interior Department to propose revisions to its regulations to allow the simultaneous consideration of ...

In a final rule (pdf) published today, the Fish and Wildlife Service ("Service") uplisted the spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) from threatened to endangered under the Endangered Species Act.  The Service also revised the designation of critical habitat for both species.  In total, approximately 630 miles are designated as critical habitat for spikedace and 610 miles are designated as critical habitat for loach minnow.  The critical habitat designations are in Arizona and New Mexico.  The Service excluded portions of the upper San Pedro River in Arizona as ...

Two stories covered in recent news highlight the challenges associated with integrating scientific information into public policy, including in the arena of agency decision-making respecting threatened and endangered species.  One, available here (The Observer, Feb. 18, 2012, by Robin McKie), covered the annual meeting of the American Association for the Advancement of Science (AAAS).  At that meeting, AAAS President and accomplished biologist Nina Fedoroff expressed profound dismay about what she perceives as a growing anti-science movement.  As was reported in The Observer, "[certain] institutions, acting as covers for major energy corporations, are responsible for the onslaught that has deeply lowered the reputation of science in many people's minds in America. This has come in the form of personal attacks on the reputations of scientists and television adverts that undermine environment laws."  The archetype example of the anti-science movement in action, according to sources cited in the article, is the debate over the scientific basis for the theory of anthropogenically generated climate change.

A second story, available here (Los Angeles Times, Feb. 22, 2012, by Neela Banerjee), covered the admission by Dr. Peter Gleick, President of The Pacific Institute, that he lied to obtain documents regarding climate change from The Heartland Institute.  As the Los Angeles Times reported, "[a] noted California scientist and environmental activist has admitted that he assumed a false identity to obtain and distribute internal documents from a libertarian group that questions climate change."  Dr. Gleick apologized for his actions explaining he was frustrated by attacks upon climate change science and scientists.  It is unclear how his actions may affect Dr. Gleick's professional life though it appears likely to have adverse consequences.  Fox News reports that "[t]he Task Force on Scientific Ethics for the well-respected American Geophysical Union has quietly expunged the name of committee chairman Peter H. Gleick from its website."

U.S. District Judge Gladys Kessler of the District of Columbia invalidated regulations designed to streamline the consultation process required by the Endangered Species Act (ESA) in preparing fire management plans. The judge found (pdf) that there was no evidence in the record that the ESA consultation process actually resulted in any delay to any National Fire Plan project.

The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of ...

On February 7, 2012, the California Department of Fish and Game (DFG) issued a 60-day notice of intent to sue to the United States Army Corps of Engineers over its national levee vegetation removal policy.  This notice follows a United States District Court's recent refusal to allow the Department of Fish and Game to intervene in a similar lawsuit brought by several environmental organizations.  That case is entitled Friends of the River, et al. v. U.S. Army Corps of Engineers, Case No. 2:11-cv-01650 (E.D. Cal.).  

The Corps' policy calls for a vegetation ...

As the Department of Fish and Game(DFG)  reported, at its February 2012 meeting the California Fish and Game Commission "moved to list the Sierra Nevada yellow-legged frog (Rana sierrae) as a threatened species and the southern mountain yellow-legged frog (R. muscosa) as an endangered species."  The latter is listed (pdf) as endangered under the federal Endangered Species Act (ESA), and a final rule (pdf) designating critical habitat for the species was promulgated in 2006.  The former is a candidate for listing under the federal ESA.

According to DFG, "Mountain yellow-legged frogs ...

At its February 2012 meeting, the California Fish and Game Commission unanimously rejected a recommendation by the California Department of Fish and Game, National Marine Fisheries Service, and U.S. Fish and Wildlife Service to initiate environmental review of a staff report and proposal (pdf) jointly developed by those agencies to alter the striped bass sport-fishing regulations in order to reduce predation by non-native striped bass on native species that are listed under the federal Endangered Species Act (ESA).  In addition to the three state and federal wildlife ...

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking ...

The U.S. Fish and Wildlife Service has prepared a 90-day finding (pdf) under the Endangered Species Act, in which it concludes that list of the ‘I’iwi (Vestiaria coccinea) as threatened or endangered  may be warranted, according to an article in Greenwire by April Reese.  The species, also known as the scarlet Hawaiian honeycreeper, is endemic to Hawaii, and its known distribution is limited to the islands of Hawaii, Maui, Molokai, Oahu, and Kauai.

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr ...

President Obama announced a government consolidation plan that would involve transferring parts of the National Oceanic and Atmospheric Administration ("NOAA"), which is currently part of the Department of Commerce, to the Department of the Interior.  NOAA oversees marine wildlife, including endangered marine species.  The Fish and Wildlife Service, which is an agency within Interior, oversees freshwater species and land-dwelling wildlife.  In his remarks regarding the proposed consolidation, President Obama, suggested that having the two agencies that conduct oversight ...

On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted.  The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted.  The Service will be accepting comments on the Humboldt marten until March 12, 2012. 

For almost 50 years ...

The U.S. Fish and Wildlife Service (FWS) and the California Department of Fish and Game (DFG) have approved the San Diego County Water Authority’s (Authority) Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), which is expected to contribute to the conservation of San Diego County’s natural resources, while providing a more efficient endangered species permitting process for the Authority. The 55-year plan satisfies the requirements for incidental take authorization under California’s Natural Community Planning Act and the federal ...

In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

The Fish and Wildlife Service (Service) announced this week a 90-day finding (pdf) on a petition (pdf) submitted by the Center for Biological Diversity to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act (ESA) and to designate critical habitat. As reported in the Sacramento Bee and the Modesto Bee, the Service stated that there is enough evidence to consider protecting the fox based on its small population, threats from off-road vehicles and disease transmission from dogs.

The fox, considered one of the ...

As Peter Fimrite reported in the San Francisco Chronicle, this week a lone gray wolf (Canis lupis) crossed the border from Oregon into California.  This marks the first time since 1924 that a wolf was seen in California.  The species was hunted to extinction within the state, due at least in part to concerns about the risks it posed to humans.  The species is listed (pdf) as endangered under the federal Endangered Species Act.  It is not listed under the California Endangered Species Act.

Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA).  The species was listed in 1967 under the predecessor to the ESA.  The final rule delisting the gray wolf is available here (pdf).  The Service released the proposed rule (pdf) on May 5, 2011.  The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in ...

Federal and state officials have issued proposed changes to the Bay Delta Conservation Plan’s (BDCP) Memorandum of Agreement (MOA) to address public comments concerning the language of the MOA and the need for meaningful public involvement in the BDCP process.

The U.S. Bureau of Reclamation (Reclamation) and the California Department of Water Resources (DWR) issued the draft MOA on September 6, 2011 and requested public comments (pdf) by November 16, 2011. The MOA is intended to replace in its entirety an earlier memorandum of agreement that was executed in March 2009.

In ...

As recently reported by Matt Weiser of the Sacramento Bee, on December 15, 2011, the California Fish and Game Commission named the black-backed woodpecker (Picoides arcticus) a candidate species.  Under the California Endangered Species Act, the Department of Fish and Game now has 12 months to complete a status review of the species "based on the best scientific information available" and submit a report and listing recommendation to the Commission.  After receiving the Department's recommendation and all appropriate public comment at a public hearing, the Commission will ...

Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

Under the ...

The United States District Court for the Southern District of Texas issued a decision (pdf) denying cross motions for summary judgment in a case brought by a non-profit group against State officials in Texas alleging violation of the Endangered Species Act’s (ESA) prohibition on take of the federally listed whooping crane (Grus americana). Plaintiffs allege that Defendants, who are officials with the Texas Commission on Environmental Quality and the South Texas Watermaster, failed to adequately manage the flow of fresh water into the San Antonio Bay ecosystem during the ...

The House of Representatives Natural Resources Committee is scheduled to hold a hearing on December 6, 2011 regarding the Endangered Species Act (ESA). The hearing is expected to focus on how litigation involving the ESA is costing jobs, impacting the economy, and preventing species recovery.

According to Rep. Doc Hastings (R-Wash.), the committee’s chairman, the hearing will be the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the ESA. Hastings has said that the law is failing to achieve its fundamental goal of ...

The United States District Court for the Northern District of California issued an order (pdf) denying a motion for preliminary relief filed by plaintiffs suing the City and County of San Francisco over the management of Sharp Park Golf Course, which San Francisco owns but which is located in the City of Pacifica in San Mateo County, California. At issue in the case is whether San Francisco’s management of the golf course violates the take prohibition of the Endangered Species Act (ESA). Plaintiffs sought an injunction that would substantially restrict activities necessary to ...

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species.  The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly.  However, the Ninth ...

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or ...

As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (Service) violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) (Special Rule) without conducting an environmental assessment.  As we discussed here, the Special Rule sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has ...

The U.S. Fish and Wildlife Service has announced that its Endangered Species Bulletin will be available exclusively in an online-only format going forward.  The Bulletin will be updated bi-monthly and will include a single in-depth feature articles, additional supporting articles, and other content.  The website for the Bulletin provides access to an archive that includes past editions back to 2000.

The National Marine Fisheries Service (NMFS) recently reopened  the public comment period for its proposal to designate additional critical habitat for endangered Hawaiian monk seals (Monachus schauinslandi).  As we previously reported, on June 2, 2011, NMFS proposed revising the critical habitat for the Hawaiian monk seal pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in ...

The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS).  In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids.  Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects.  But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.

Plaintiffs claimed that NMFS improperly employed and relied on two models.  NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids.  With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations.  But the court stated that it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct.  It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.

In response to a petition (pdf) from the Pacific Legal Foundation (PLF) to delist the coastal California gnatcatcher (Polioptila californica californica) under the Endangered Species Act, the U.S. Fish and Wildlife Service made a 90-day finding (pdf) that the petition does not present substantial scientific or commercial information to indicate that delisting the species may be warranted.  PLF argued that the coastal California gnatcatcher is not a valid subspecies and should therefore be delisted.  In response, the Service acknowledged "that the taxonomic ...