Endangered Species Law & Policy

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 ...

On May 7, 2021, the U.S. Fish and Wildlife Service (USFWS), as many anticipated, published a proposed rule to revoke a Trump Administration rule impacting the scope of the Migratory Bird Treaty Act (MBTA).  The Trump Administration rule was finalized on January 7, 2021 and became effective March 8, 2021.  It clarified that the MBTA’s prohibition against the take of migratory birds did not extend to death or injury of migratory birds that results from, but is not the purpose of, an action (also known as incidental take).  Prior to the Trump Administration Rule, USFWS had, for decades ...