Endangered Species Law & Policy

Senator Dianne Feinstein has responded (PDF) to the National Academy of Sciences National Research Council's report on the Sacramento-San Joaquin Delta noting that the report did not indicate a need to enforce more rigorous pumping restrictions.  Feinstein emphasized the finding that other stressors, including predators, may have a potentially large impact on endangered species in the Delta and the need to integrate the two biological opinions.  Finally, Feinstein urged the Departments of Interior and Commerce to implement the biological opinions with additional flexibility ...

Today the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta released the first of two reports regarding the Sacramento-San Joaquin Delta in California. The report is entitled A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California's Bay Delta. It addresses two biological opinions issued by the Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) under the Endangered Species Act concerning the operation of the ...

Finding its methodology fatally flawed, the Ninth Circuit Court of Appeals concluded that the Forest Service violated the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) in its approval of grazing allotments in Southeast Montana.  In Native Ecosystems Council v. Tidwell (PDF), the court determined that the Forest Service’s use of a habitat proxy to evaluate impacts to the sage grouse was arbitrary and capricious without considering evidence concerning the sage grouse population. The court did not consider the recent determination by the Fish and Wildlife Service that the listing of the sage grouse under the Endangered Species Act is warranted. Nevertheless, the decision is evidence of the potential for future conflicts between the conservation of the sage grouse and economic activities on public lands in the West. The decision is another example of the reluctance of the Ninth Circuit to defer to agency decisions on biological issues.

Assemblyman Jared Huffman has introduced Assembly Bill 2420 (PDF) to amend the provisions of the California Endangered Species Act (CESA) that allow persons who obtain incidental take authorization under the federal Endangered Species Act (ESA), to also obtain take authorization from the Director of the California Department of Fish and Game for species listed under both laws, provided the Director determines that such federal take authorization is consistent with CESA.

AB 2420 would revise section 2080.1 of the California Fish and Game Code. As presently written, that section ...

For the third time in nine years, the Fish and Wildlife Service has revised the designation of critical habitat for the California red-legged frog. The new designation includes 1.6 million acres in 20 counties in California. 75 Fed. Reg. 12,816 (Mar. 17, 2010) (PDF). The revised designation increases the amount of critical habitat by over one million acres from the 2006 critical habitat designation (PDF). The revised designation represents a decrease of approximately 2.4 million acres from the 2001 designation (PDF). The Service revised the prior designations in response to ...

At the March 3, 2010 California Fish and Game Commission meeting in Ontario, California, the National Oceanic and Atmospheric Administration ("NOAA") Fisheries, the federal agency charged with protecting marine and anadromous fish species such as the Sacramento River winter-run Chinook salmon and Central Valley steelhead, formally requested that the Commission revise sport-fishing regulations to increase the harvest of non-native predators that prey on species protected under the federal Endangered Species Act.  (To access archived footage of the Commission ...

On March 10, 2010, the Center for Biological Diversity submitted a letter (PDF) on behalf of 50 conservation groups encouraging the Secretaries of the Department of the Interior and the Department of Commerce to adopt a radical new definition of adverse modification of critical habitat.  The proposed definition differs in two ways from the current regulatory definition; one uncontroversial and benign, while the other is likely to be controversial and far-reaching.

Currently, adverse modification is defined by regulation as a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.  The groups would have adverse modification of critical habitat be defined as a direct or indirect alteration that appreciably diminishes the value of any portion of any area of designated critical habitat for either the survival or recovery of a listed species, with appreciably diminishes defined as any action that would destroy or degrade any primary constituent element such that the habitat would be, measurably or perceptibly, of less value to the species.  As explained below, the change to either . . . or would be benign; but the proposed addition of any portion of any area could dramatically alter the way the Services administer Section 7 of the ESA.

Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse.  On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA").  This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species.  As discussed in a previous post, Western ...

The United States District Court for the Eastern District of California issued a decision (PDF) granting plaintiffs' motion for summary judgment on the grounds that the National Marine Fisheries Service (NMFS) and the Bureau of Reclamation (BOR) violated the National Environmental Policy Act (NEPA) by adopting and implementing NMFS' biological opinion and reasonable and prudent alternatives regarding the long-term operations of the Central Valley Project and State Water Project in California.

The NMFS biological opinion (PDF), which covers five listed anadromous and ...

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and ...

Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada.  The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine." 

The whitebark pine listing petition is one of several recent petitions seeking protection ...

On February 27, 2010, the Sacramento Bee published a story by Matt Weiser entitled "Lawsuit: Striped bass to blame for California's salmon decline." The story discusses an ongoing lawsuit (PDF) challenging the California Department of Fish and Game's enforcement of striped bass sport-fishing regulations in the Sacramento-San Joaquin Delta. The lawsuit alleges that the enforcement of the striped bass sport-fishing regulations maintain an elevated striped bass population, which increases striped bass predation on a number of species listed under the Endangered ...

In a 3-2 vote, the California Fish and Game Commission ruled yesterday that the California tiger salamander will be protected as a threatened species under the State’s Endangered Species Act.  The Commission had previously denied the listing twice, and was ordered by the State Court of Appeals to reconsider the issue after the Center of Biological Diversity filed suit in 2004.  The Commission made the decision after finding that the species’ habitat, roughly 400,000 acres in Central California, is threatened by future development.

This decision is anticipated to ...

Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF)

Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service ...

As reported in The Daily News Online, the Fish and Wildlife Service will be holding a public meeting on Wednesday, March 3, 2010 at the Water Resources Education Center in Vancouver, Washington to inform the public and address questions on its proposal to expand critical habitat (PDF) for the threatened bull trout.  For more information on the proposed expansion, see the previous post Fish and Wildlife Service Proposes Revision of Critical Habitat for Bull Trout. 

In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the ...

As discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on ...

Rowan Gould, the deputy director of operations, was named as acting director of the U.S. Fish and Wildlife Service following the death of Sam Hamilton, who died on February, 20, 2010.  Gould previously served as acting director from January 2009 until August 2009, when Hamilton was confirmed. 

Gould started his career with the Fish & Wildlife Service as a research microbiologist at the Seattle National Research Center in 1976.  Gould has served in many research positions as well as Regional Director of the Alaska Region, Deputy Assistant Director for Fisheries in Washington, D.C., and ...

The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C.,  Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade.  The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.

On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.  See 90-Day Finding (PDF).

If a threatened listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of take of any such species without an incidental take permit. 

If any of the species are listed as endangered, they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from taking or harming any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted take of, or harm to species imperiled by climate change.

Listing of this tiny relative of the rabbit . . . could have been a very big deal . . . . If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change . . . could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act.

On February 11, 2010, the Fish and Wildlife Service reported that it will not be designating critical habitat for the Florida panther. This announcement comes in response to petitions submitted to the Service by several environmental groups including the Sierra Club and the Center for Biological Diversity requesting designation of 3 million acres of land in south Florida as critical panther habitat.

The Service determined that critical habitat designation is not in the best interest of the Florida panther at this time but retained discretion to designate habitat at a later time ...

Pursuant to a request by Congress and the U.S. Department of the Interior, the National Research Council recently held a number of hearings in Davis, California on the current crisis in the Sacramento-San Joaquin Delta. These hearings took place over a four-day stretch, running from January 24 to January 28, frequently addressing a handful of different Delta related issues each day.

The National Research Council is an arm of the National Academy of Sciences, a private non-profit institution that was created in 1863 by President Lincoln.  The primary role of the National Research ...

On January 13, 2010, the Fish and Wildlife Service proposed to revise its 2005 designation of critical habitat for the bull trout (Salvelinus confluentus), a species that has been protected under the Endangered Species Act (ESA) since it was listed as threatened in 1999.

The proposed rule (PDF) represents a dramatic increase in critical habitat from that currently designated under the 2005 rule.  The rule as revised includes approximately 22,679 miles of streams and 533,426 acres of lakes and reservoirs in Idaho, Oregon, Washington, Montana and Nevada, which is a 79% increase in ...