Endangered Species Law & Policy

On May 11, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule designating approximately 65,038 acres and 20.3 river miles of critical habitat for the Oregon spotted frog (Rana pretiosa).  The acres and river miles comprising the critical habitat designation are located in Whatcom, Skagit, Thurston, Skamania, and Klickitat Counties in Washington, and Wasco, Deschutes, Klamath, Lane, and Jackson Counties in Oregon.

According to the Service, the areas designated as critical habitat constitute the Service’s best assessment of the areas that meet the ...

On May 6, 2016, the U.S. Fish and Wildlife Service (Service) published its proposed revisions to the Bald and Golden Eagle Protection Act (BGEPA) permit program.  The stated intention of these proposed revisions is to improve upon the 2009 regulations establishing a permit program under BGEPA.  In 2012, the Service issued an advance notice of proposed rulemaking seeking public input on aspects of the 2009 regulations.  In addition to updating the best available science regarding eagle populations, conservation measures and causes of eagle mortality, the proposed revisions seek to ...

On April 28, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a revised Biological Opinion and Incidental Take Permit for the Rosemont Copper Mine in Pima County, Arizona. USFWS originally issued a Biological Opinion and Incidental Take Permit for the mine project in 2013. Consultation with USFWS was reinitiated in 2015 primarily due to the listing of additional species not considered during the initial consultation.

The Rosemont Copper Mine is proposed on approximately 955 acres of private land and 75 acres of Arizona State Land Department land, on the east side of the ...

On April 21, 2016, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, Service) announced revisions to their proposed modifications  to  the Endangered Species Act (ESA) petition process. 81 Fed. Reg. 23,448 (Apr. 21, 2016) (pdf).  In May 2015, the Service announced proposed changes to the petition process for listing a species or seeking to change the listing status of a species under the ESA. 80 Fed. Reg. 29,286 (May 21, 2015) (pdf).  The Service’s proposed rule originally required petitions to list species to address only one species, contain ...

Environmental Management has released an advanced copy of an article I co-authored with Dr. Dennis Murphy entitled, Guidance on the Use of Best Available Science under the U.S. Endangered Species Act.  The principle purposes of the article are to identify the types of data, analyses, and modeling efforts that can serve as best available science and consider the role and application of best available science in effects analysis and adaptive management.  The article is available free of charge, here

On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (BIA) in a lawsuit involving the grant of a lease to Tule Wind, LLC for construction of the second phase of an industrial-scale wind energy facility. The Protect Our Communities Foundation v. Black, Case No. 14-cv-2261 (S.D. Cal. March 29, 2016). Plaintiffs alleged that BIA’s approval of the project (1) violated the National Environmental Policy Act (NEPA); (2) violated the Bald and Golden Eagle Protection Act (BGEPA); and (3) violated ...

This week, two congressional committees are holding three separate hearings on issues related to the Endangered Species Act (ESA).  On April 19, the House Committee on Natural Resources will hold an oversight hearing entitled Recent Changes to Endangered Species Critical Habitat Designation and Implementation.  On April 20 and 21, the House Oversight and Government Reform Subcommittee on Interior will hold two hearings to discuss delisting under the ESA.  Nossaman partner, Robert D. Thornton, will testify at the committee hearing on April 20.

The hearing before the Natural ...

On April 8, the United States District Court for the Middle District of Florida held that Collier County’s (County) land use planning regulations were complimentary, not contrary to the Endangered Species Act (ESA).  The court also held that the County's planned future roadway extension did not violate the ESA, because the roadway project was only in the initial planning stages and the County acknowledged that compliance with the ESA was required before any construction activities could take place. Florida Panthers v. Collier County, Case No. 2:13-cv-612 (M.D. Fla. Apr. 8 ...

On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal).  The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list the wolverine as a threatened species under the Endangered Species Act (ESA).  The court’s decision is the newest chapter in what has been a contentious and storied path to a listing decision for the North American ...

On April 5, 2016, the U.S. Fish and Wildlife Service (Service) issued 12-month findings on petitions to list the island marble butterfly (Euchloe ausonides insulanus), the San Bernardino flying squirrel (Glaucomys sabrinus californicus), the spotless crake (Porzana tabuensis), and the Sprague’s pipit (Anthus spragueii) under the Endangered Species Act.  The Service concluded that the listing of the island marble butterfly is warranted but precluded by higher priority listing actions, but will place the butterfly on the list of candidate species.  The Service also concluded ...