Endangered Species Law & Policy

On March 30, 2016, the U.S. Fish and Wildlife Service ("Service") issued a final rule designating critical habitat for 125 species listed as endangered or threatened under the Endangered Species Act ("ESA") on the Hawaiian islands of Molokai, Maui, and Kahoolawe.  The rule designated critical habitat for 50 plant and animal species, and revised critical habitat for 85 plant species, totaling approximately 157,002 acres of critical habitat on Molokai, Maui, and Kahoolawe.  An additional 25,413 acres of critical habitat that had been proposed on Lanai, along with 59,479 acres on Maui ...

In December 2015, Defenders of Wildlife employees published an article in the Proceedings of the National Academy of Sciences, in which they compiled and conducted basic statistical analyses of data regarding section 7 consultations from 2008 to 2015.  Among their findings were the following:

• there were 81,461 informal and 6,829 formal consultations during that period;
• only two consultations resulted in jeopardy determinations; and
• the median duration of informal and formal consultations was 13 days and 62 days.

The authors also presented data sorted by geographic region ...

On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service ("NMFS") listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act ("ESA").  The State of Alaska, North Slope Borough and the Alaska Oil ...

On March 11, 2016, the U.S. Fish and Wildlife Service (Service) released a final delisting rule, a proposed delisting rule, and a notice of a draft recovery plan.  Each of these is discussed in the order in which they appear in the Federal Register.

First, the Service issued a final rule removing the Louisiana black bear (Ursus americanus luteolus), affectionately referred to as the Teddy bear, from the list of endangered and threatened species.  Based on the black bear’s recovery, the rule also removes the American black bear (Ursus americanus), which was previously listed due to its ...

On March 8, 2016, the U.S. Fish and Wildlife Service (Service) announced (pdf) proposed revisions to its Mitigation Policy that has guided Service recommendations on mitigating the adverse impacts of development on fish, wildlife, plants, and their habitats since 1981.  The revised policy provides a framework for achieving a net gain in conservation outcomes, or at a minimum, no net loss of resources and their values, services, and functions resulting from proposed actions.

The Mitigation Policy serves as over-arching guidance applicable to all actions for which the Service has ...

On February 29, 2016, the U.S. District Court for the Western District of Texas rejected the U.S. Fish and Wildlife Service's (Service) request to reinstate federal Endangered Species Act (ESA) protections for the lesser prairie chicken (Tympanuchus pallidicinctus).  Permian Basin Petrol. Ass 'n v. Dep 't of the Interior, No. 7:14-CV-50 (W.D. Tex. Feb. 29, 2016.).  In September 2015, the court ruled on a challenge brought by the Permian Basin Petroleum Association and four New Mexico counties and vacated the final rule listing the lesser prairie chicken as threatened under the ESA.  ...

On February 29, 2016, the U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (Service) designation of critical habitat in Alaska for the polar bear (Ursus maritimus).  Alaska Oil and Gas Ass’n v. Jewell, No. 13-35919 (9th Cir. Feb. 29, 2016).  The Ninth Circuit reversed the lower court’s decision, reinstating the previously vacated critical habitat designation.

In 2013, the district court granted summary judgment to plaintiffs on two grounds.  Substantively, the district court held that the Service failed to identify specifically where ...

The National Marine Fisheries Service (NMFS) issued a final rule on February 24, 2016 designating critical habitat under the Endangered Species Act (ESA) for two threatened species—lower Columbia River coho salmon (Oncorhynchus kisutch) and Puget Sound steelhead (Oncorhynchus mykiss).   NMFS designated approximately 2,300 stream miles of freshwater and estuarine habitat in Oregon and Washington for the lower Columbia River coho, as well as approximately 2,031 stream miles of freshwater and estuarine habitat in Puget Sound, Washington for the Puget Sound steelhead.  NMFS ...

On February 11, 2016, in Kuehl v. Cricket Hollow Zoo, Case No. C14-2034, the United States District Court for the Northern District of Iowa ruled that the owners and operators of the Cricket Hollow Zoo, located in rural Manchester, violated the Endangered Species Act's (ESA) take prohibition by failing to provide adequate sanitation and timely veterinary care to tigers, and failing to provide adequate sanitation, in compliance with generally accepted animal husbandry practices, and appropriate environmental enrichment to lemurs under their care.  The court reasoned that the ...

Yes, no, maybe so. With the passing of Justice Antonin Scalia, many have already started to prognosticate about the sea change that will inevitably follow. While it is certainly possible that such a sea change will come to pass, it also possible that the Supreme Court will remain much as it has been for more than a decade, with a staunch 4-person conservative block, a staunch 4-person liberal block, leaving Justice Kennedy to decide who wins and who loses. This possibility exists, because right now there are numerous moving parts that could impact who will fill the ninth spot on the Court ...