Endangered Species Law & Policy

The U.S. Court of Appeals for the Ninth Circuit amended an opinion it filed earlier this year in Butte Environmental Council v. U.S. Army Corps of Engineers, which we wrote about here.  The case concerns a challenge to the Fish and Wildlife Service’s (Service) finding that a proposed business park would not adversely modify the critical habitat of three listed species under the Endangered Species Act (ESA). While the Ninth Circuit did not change its holding from the June opinion (PDF), it did clarify previous dicta concerning the Service’s analysis of adverse modification ...

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned waters of the United States is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction. The court rejected plaintiffs’ argument that the term areas under federal jurisdiction includes areas that qualify as wetlands and other waters of the United States under the Clean Water Act. The decision is important ...

The United States Court of Appeals for the Tenth Circuit affirmed (PDF) a lower court decision denying a petition for review submitted by Forest Guardians challenging the decision of the Fish and Wildlife Service (Service) to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons into portions of southern New Mexico. The species was listed (PDF) as endangered in 1986 because it was believed extirpated from its historic range of portions of Arizona, New Mexico, and Texas in the United States though it persisted in northern Mexico. In 2001 ...

In Western Watersheds Project v. Kraayenbrink (PDF), the United States Court of Appeals for the Ninth Circuit  upheld the district court's decision that the Bureau of Land Management (BLM) violated the Endangered Species Act in adopting amendments to BLM's grazing regulations and affirmed the district court's permanent injunction enjoining the amended regulations.  The Ninth Circuit held that BLM violated section 7 of the Endangered Species Act (ESA) by failing to consult with the Fish and Wildlife Service (Service) regarding the amendments and also violated the National ...

The U.S. Fish and Wildlife Service recently made a 90-day finding (PDF) that a petition to list the plant species Arctostaphylos franciscana presents substantial scientific or commercial information indicating that listing this species may be warranted.  Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family that is endemic to the San Francisco peninsula in California.  The species was presumed extinct since 1947 when it was last seen in the wild, but, in October 2009, an ecologist identified a plant growing in a concrete-bound ...

On August 20, 2010, the United States Court of Appeals for the Ninth Circuit held that the National Marine Fisheries Service ("NMFS") did not violate the law when it omitted resident rainbow trout from the Distinct Population Segment of California Central Valley steelhead ("CV Steelhead"), despite the fact that rainbow trout and steelhead are the same species and can interbreed.  The court affirmed NMFS's listing of the DPS Steelhead as a threatened species under the Endangered Species Act ("ESA").

In order to be listed as a threatened species, the ESA requires that, based on the best scientific information available, a species will, within the foreseeable future, likely be in danger of extinction throughout all or a significant portion of its range.  The ESA defines the term "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."

The Fish and Wildlife Service announced on August 19, 2010 that it will not be removing the Stephens’ kangaroo rat (Dipodomys stephensi) from the Federal List of Endangered and Threatened Wildlife. This decision constitutes the Service’s 12-month finding (PDF) on a petition submitted by the Riverside County Farm Bureau in 2002 to delist the species as endangered.

The Stephens' kangaroo rat is a burrow-dwelling nocturnal mammal that inhabits arid and grassy habitats in western North America.  It is known to occur at lower elevations of the dry inland valleys west of ...

We previously announced the Ninth Circuit's decision in Home Builders Association of Northern California v. United States Fish and Wildlife Service upholding the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species under the Endangered Species Act.  For more information regarding this decision, see this article published in the Courthouse News Service earlier this week.

For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (ESA).  In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that adversely modify critical habitat.  The court rejected Home Builders’ claim that the ESA ...

The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy. 

The gray wolf was listed as endangered under the ESA in 1974.  The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s.  ...

In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule on August 3, 2010 listing five species of penguins as "threatened" under the Endangered Species Act.  Specifically, the Service determined that the yellow-eyed, white-flippered, Fiordland crested, Humboldt, and erect-crested penguins are likely to become in danger of extinction within the foreseeable future.

None of the five species is native to the United States, and therefore no critical habitat is designated for the listed species.  Nevertheless ...

After Hurricane Katrina, the U.S. Army Corps of Engineers made major changes to its nationwide levee policies, including new standards in 2009 banning vegetation on or within 15 feet of levees. Earlier this year, the agency adopted a variance policy requiring trees and bushes to be removed by September 30 unless a new variance was granted, forcing levee owners and operators to scramble to meet the deadline.  According to a recent notice of intent to sue letter issued by the Center for Biological Diversity, this new variance deadline may be impossible to meet for many levee owners or ...

The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands.  The decision is described in this article.

In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA.  In response the Forest Service Employees for Environmental Ethics filed another lawsuit.

On July 26, 2010, the Center for Biological Diversity filed another lawsuit challenging the Department of the Interior's regulation of offshore drilling, alleging that the Department failed to properly assess potential impacts on endangered and threatened species from large scale oil spills.  The lawsuit, which was filed in the United States District Court for the District of Columbia, attacks the "policy" and "decisions" of the former Minerals Management Services (now the Bureau of Ocean Energy Management, Regulation, and Enforcement) that exploration ...

In an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here,  to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post ...

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee.  The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith.  A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task.  The agenda for that meeting is available here.  At the July 13 meeting ...

The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted.    The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008.  It filed a lawsuit in March 2010 to force the Service to act on the listing petition.  In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine.  According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by ...

In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection ...

On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act.  Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and ...

In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (Service) determination that under the Endangered Species Act (ESA), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a baseline approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

After nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.

But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal ...

On June 24, 2010, the Fish & Wildlife Service issued a Notice of Violation to the City of Birmingham, Alabama for allegedly killing an estimated 11,700 endangered watercress darters, and injuring approximately 8,900 others, in a single incident in 2008.  The Service is seeking $2,975,000 in civil penalties as a result of the incident.

The watercress darter is found in only five spring brooks and spring pools in Birmingham, Alabama.  In September 2008, a Birmingham maintenance crew allegedly breached an earthen dam and drained a spring pool, stranding and killing thousands of ...

The California Court of Appeal’s First Appellate District issued a decision affirming the lower court in a case of first impression regarding the interpretation of the term person in the California Endangered Species Act (CESA). The issue presented to the court was whether the California Department of Water Resources (DWR) is a person for the purpose of CESA. The court held that a state agency is a ‘person’ within the meaning of section 2080, which prohibits any ‘person’ from taking an endangered or threatened species without appropriate permit authority from the ...

Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the ...

On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 ...

In a letter (PDF) dated May 25, 2010 and sent to Secretaries Salazar and Locke of the Departments of the Interior and Commerce, respectively, Stephen Parker of the National Research Council's Water Science and Technology Board explained the National Research Council's decision to force the resignation of Dr. Pat Glibert of the University of Maryland.

The forced resignation is extraordinary in light of the National Research Council's Policy on Composition and Balance and Conflicts of Interest for Committees Used in the Development of Reports (which explicitly ...

The Court of Appeals for the Ninth Circuit upheld the Fish and Wildlife Service's ("Service') no "adverse modification" determination despite the fact that the proposed project would destroy some critical habitat.

In Butte Environmental Council v. U.S. Army Corps of Engineers (PDF), environmental plaintiffs challenged the Service's biological opinion finding that a proposed business park to be located along Stillwater Creek in Redding, California would not adversely modify the critical habitat of the threatened vernal pool fairy shrimp, endangered vernal pool tadpole ...

On May 27, 2010, the United States District Court for the District of Columbia issued a decision rejecting a challenge to the U.S. Fish and Wildlife Service's critical habitat determination for the endangered San Diego fairy shrimp, concluding that the Service's determination was entitled to deference. 

Under the terms of the Endangered Species Act, the Service is required to designate, to the maximum extent practicable, critical habitat for an endangered or threatened species concurrently with a final listing rule.  Critical habitat is defined, in part, as ...

On May 27, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. May 27, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP ...

This week, the Endangered Species Committee of the American Bar Association's Section on Environment, Energy and Resources published its most recent edition of the Endangered Species Committee Newsletter.  The Newsletter is edited by Paul Weiland and includes an article by him regarding an interim report of the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in ...

Mike Taugher of the Contra Costa Times reports that Dr. Pat Glibert of the University of Maryland was forced to resign from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta.  The National Research Council convened the committee at the request of members of the California congressional delegation, including Senator Feinstein and Representative Costa.

The decision to force Dr. Glibert off the committee, which released its first report in March 2010 and had plans to develop a second report in the coming year ...

On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible ...

On May 18, 2010, the United States District Court for the Eastern District of California issued findings of fact and conclusions of law (PDF) regarding Plaintiffs’ request for a preliminary injunction in The Consolidated Salmonid Cases, No. 09-1053 (E.D. Cal. May 18, 2010).  The matter consists of seven consolidated actions that all challenge the June 2009 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the National Marine Fisheries Service (NMFS). The CVP and SWP provide water for approximately 25 million Californians.

Plaintiffs challenged the implementation of two components of the RPA developed by NMFS, RPA Actions IV.2.1 and IV.2.3. Action IV.2.1 imposes minimum San Joaquin River inflow requirements in conjunction with maximum permissible exports (i.e., a 4 to 1 ratio between inflow and exports) and is effective April 1 to May 31.  Action IV.2.3 limits Old and Middle river flows to no more negative than -2,500 to -5,000 cfs, depending on juvenile entrainment levels, and is effective January 1 to June 15 or until a temperature trigger is hit at Mossdale (a location on the San Joaquin River).

On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

The Fish and Game Commission announced a change in its hearing date and location regarding listing the California tiger salamander as threatened under California's Endangered Species Act.  The hearing will now be a teleconference meeting held on Thursday, May 20, 2010 at 9:30 a.m. at the Commission Conference Room in Sacramento.  Locations where the public may participate are provided in the Commission's notice (PDF).

The Fish and Wildlife Service announced (PDF) that it is initiating a 12-month status review of a petition to list the Hermes copper butterfly (Hermelycaena [Lycaena] hermes) as a threatened or endangered species under the Endangered Species Act and to designate critical habitat.  Hermes copper butterflies are known to range from Fallbrook, California, in northern San Diego County to 18 miles south of Santo Tomas in Baja California, Mexico, and from Pine Valley in eastern San Diego County to Lopez Canyon in western San Diego County.  The species inhabits coastal sage scrub and ...

Almost five years after receiving a listing petition, yesterday, the United States Fish & Wildlife Service finally issued its 90-day petition finding for the Mohave ground squirrel (Xerospermophilus mohavensis), finding that "listing may be warranted."  

The listing petition was jointly filed by the Defenders of Wildlife and Dr. Glenn R. Stewart on September 5, 2005.  Although the Endangered Species Act contemplates that the Fish & Wildlife Service will issue a 90-day petition finding within 90 days of receiving a petition, approximately six ...

Senator Lois Wolk has introduced two separate bills into the California Senate to amend the California Endangered Species Act (CESA) and Natural Community Conservation Planning Act (NCCPA).

SB 1303, as amended, would amend section 2087 of the California Fish and Game Code, which exempts otherwise lawful routine and ongoing agricultural activities from the take prohibitions established by CESA. Routine and ongoing agricultural activities are defined by regulation to include, among other things, any practices performed by a farmer on a farm as incident to or in conjunction with ...

The Fish and Wildlife Service announced the issuance of a comprehensive set of recommended guidelines (PDF) on how to minimize the impact of land-based wind turbines on wildlife and their habitat.  The Service transmitted these recommendations to Secretary of the Interior, Ken Salazar.  Secretary Salazar will review the recommendations and consider them as he directs the Service to develop guidelines for wind turbines.

The guidelines are founded on a tiered approach for assessing potential impacts to wildlife and their habitats.  There are five tiers, and each tier includes a set of questions to help the developer identify potential problems associated with each phase of a project. The goal of the guidelines is to provide a consistent approach to assessing impacts to wildlife and habitats, while still providing flexibility to deal with the unique circumstances of individual projects. 

The Fish and Wildlife Service announced (PDF) today that it will accept comments through May 20, 2010 regarding a status review of the Sacramento splittail (Pogonichthy macrolepidotus), a fish endemic to lower-elevation waters of the Central Valley of California.  Based on the status review, the Service will issue a 12-month finding by September 30, 2010 that will address whether listing the species may be warranted under the Endangered Species Act (ESA).  If warranted, the Service will also publish, concurrently with the 12-month finding, a proposed rule to list the ...

The regulatory requirements of the Endangered Species Act ("ESA") are imposing limitations on the development of renewable energy projects in the California desert. State and federal regulatory agencies are attempting to expedite ESA and other environmental reviews of proposed renewable energy projects. But the jury is out on whether these efforts will succeed. The ability of California to implement its precedent-setting climate change legislation hangs in the balance. As Governor Schwarzenegger stated "If we cannot put solar power in the Mojave Desert, I don't know where the ...

In a speech at the Department of the Interior, President Obama announced a new national conservation effort titled the America’s Great Outdoors Initiative.

The President described the Administration’s plans to roll out the Initiative in the following way.

"In the months ahead, members of this administration will host regional listening sessions across America. We’ll meet with everybody -- from tribal leaders to farmers, from young people to businesspeople, from elected officials to recreation and conservation groups. And their ideas will help us form a 21st century ...

On April 13, 2010, the Pacific Legal Foundation (PLF) filed a petition (PDF)  to remove the coastal California gnatcatcher, specifically, the subspecies Polioptila californica californica, from the Fish and Wildlife Service’s list of threatened species. Considerable controversy surrounded the 1993 listing and subsequent designation of critical habitat for the coastal California gnatcatcher because its range includes prime real estate and agricultural land in the southern California counties of Los Angeles, Orange, San Diego, Riverside, and San Bernardino.

In its petition, PLF argues, in essence, that scientific studies indicate that no such subspecies exists, i.e., there is no such thing as the coastal California gnatcatcher. PLF cites scientific studies published since the 1993 listing that undermine the original basis for the listing. The decision to list the gnatcatcher relied heavily on research published in the early 1990s indicating that the relatively small population of gnatcatchers in southern California formed a subspecies of the much larger population of California gnatcatchers that extends from Los Angeles to the southern end of Baja, Mexico. But studies based on genetic analysis and re-analysis of the original data set that led to the listing conclude that there is no biological basis for the P. c. californica taxonomic classification. If there is no such subspecies, then, according to PLF, the gnatcatcher is not threatened because the larger population inhabiting southern California and Baja, Mexico is not vulnerable to extinction in the near future.

If the Fish and Wildlife Service delists the gnatcatcher, the designation of nearly 200,000 acres of land as critical habitat will be withdrawn. Delisting, however, would not result in the removal of all regulatory protections for the gnatcatcher in southern California. Much of the coastal California gnatcatcher’s range is already subject to conservation under the terms of Habitat Conservation Plans that collectively cover millions of acres, and the gnatcatcher is also protected under the Migratory Bird Treaty Act. Accordingly, delisting may have little or no practical effect for many landowners and developers in the region.

The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (ESA) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (STB) and the Fish and Wildlife Service (Service) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of Phase One in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an interrelated action to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.
 

The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water ...

Two men were sentenced in federal court last week after admitting to the 2007 slaughter of over 100 federally endangered Indiana bats in Kentucky.  In light of the brutality of the attacks, one man received 3 years probation, while the second man, who was involved in two separate attacks on the endangered bat, was sentenced to eight months in federal prison.  

Both men pleaded guilty to violating the take prohibition in the federal Endangered Species Act ("ESA"), which provides for a maximum criminal penalty of $50,000 or one year in prison, or both.  While the ...

The California Fish and Game Commission provided notice (PDF) that it will be holding a hearing in Stockton on Wednesday, May 5, 2010 at 8:30 am to take comments on the listing of the California tiger salamander to the list of threatened animals pursuant to the California Endangered Species Act.  The Department of Fish and Game submitted a status review (PDF) of the California Tiger Salamander to the Commission on January 11, 2010.

As detailed in the notice, written comments are requested to be submitted on or before April 30, 2010, but must be received no later than 5:00 p.m. on May 3, 2010.  ...

In the latest round of litigation over endangered species impacts of water management in Southern Florida, a district court invalidated an incidental take statement applicable to actions of the Corps of Engineers to restore the Everglades.  The decision in Miccosukee Tribe of Indians of Florida v. United States (PDF), is the latest in a line of decisions concluding that the Fish and Wildlife Service failed to provide a sufficient justification for the use habitat conditions in lieu of a numerical cap on incidental take.  The decision is an example of the willingness of the federal ...

On April 8-9, Nossaman partners Rob Thornton and Paul Weiland will be co-chairing a CLE International conference on Endangered Species Law at the Omni Hotel in San Diego, California.  Nossaman attorneys Sue Meyer, Rob Thornton, and Paul Weiland will be presenting on panels at the conference.  Other speakers are among the leading attorneys, consultants, scientists, and stakeholders in the field, including Dr. Holly Doremus of University of California, Berkeley, Dr. Dennis Murphy of University of Nevada, Reno, and Dan Keppen of the Family Farm Alliance.  The conference will cover ...

The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be ...