Endangered Species Law & Policy

Last Friday, the U.S. District Court for the Eastern District of California denied (pdf) a motion brought by environmental groups to enjoin a water transfer project in the Sacramento-San Joaquin River Delta (Delta). Plaintiffs brought suit against the U.S. Bureau of Reclamation (Bureau), arguing the Bureau violated the National Environmental Policy Act (NEPA) by approving the San Luis & Delta-Mendota Water Authority (SLDMWA) Water Transfer Project, which would allow water rights holders or contractors north of the Delta to sell water to members of SLDMWA, whose members then ...

On Wednesday, two final rules were released designating critical habitat for the loggerhead sea turtle (Caretta caretta), a species listed as endangered under the Endangered Species Act (ESA). Together, the rules represent one of the largest areas of critical habitat ever designated under the ESA. The first rule, promulgated by the National Marine Fisheries Service (NMFS), designates over 300,000 square miles of habitat in the northwest Atlantic Ocean. The second rule, promulgated by the U.S. Fish and Wildlife Service (FWS), designates 685 miles of land along the coasts of the ...

A Regional Director for the U.S. Fish and Wildlife Service (Service) has directed federal biologists to withdraw their proposed rule to list the wolverine (Gulo gulo luscus) as threatened under the Endangered Species Act. As we reported here, the Service proposed listing the wolverine in February 2013, citing habitat loss due to climate change as the primary threat to the species. Officials in Wyoming, Idaho, and Montana objected to the proposed listing, arguing climate change conclusions are premature. In response to these objections, the Service asked a panel of nine biologists ...

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) reclassifying the U.S. breeding population of the wood stork (Mycteria americana) from endangered to threatened.

According to the Service, when the wood stork was listed as endangered in 1984, the population was decreasing at a rate of five percent per year. The Service now reports that the U.S. breeding population has increased its number of nesting pairs, and has expanded its breeding range.

Wood storks use a variety of freshwater and estuarine wetlands for nesting, feeding, and roosting. The Service’s ...

In The Aransas Project v. Shaw, the Fifth Circuit reversed a lower court’s finding that the Texas Commission on Environmental Quality violated section 9 of the Endangered Species Act through its combined actions and inactions with respect to management of water diversions in the San Antonio and Guadalupe River systems. We reported on the lower court decision here. Provided the decision stands, it suggests that the standard for liability under section 9 is not a strict liability standard, but instead requires courts to assess whether take was reasonably foreseeable drawing on common law tort principles.

 The U.S. Fish and Wildlife Service (Service) recently announced that it will be conducting a 12-month status review for the Humboldt marten (Martes americana humboldtensis) to determine whether to list the species as threatened or endangered under the Endangered Species Act (ESA). The Service’s notice (pdf) requests information on the Humboldt marten, and notes the uncertainty surrounding the subspecies’ taxonomic classification. The classification of martens has evolved dramatically over the years, and ongoing genetic research indicates uncertainty in the ...

Today, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service issued their final interpretation of the phrase "significant portion of its range" for the purposes of applying the Endangered Species Act (ESA).  This phrase plays a key role in the listing and delisting of species, as it appears in the ESA's definition of "endangered species" and "threatened species."  Specifically, under the ESA, an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its ...

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated ...

Despite landmark settlements requiring the U.S. Fish and Wildlife Service (Service) to review the status of hundreds of species currently listed as candidate species under the Endangered Species Act (ESA), conservation groups continue to file lawsuits to force listing decisions.

For example, the Center for Biological Diversity (CBD) recently filed suit in an effort to force the Service to make final listing decisions for four freshwater aquatic species—the Barrens darter (Etheostoma forbesi), holiday darter (Etheostoma brevirostrum), Atlantic pigtoe mussel (Fusconaia ...

Last week, the bipartisan Western Governors' Association (WGA) adopted a resolution urging the federal government to defer to state conservation efforts and to prioritize funding to avoid new listings under the federal Endangered Species Act (ESA). The resolution (pdf) calls for state conservation plans to "give rise to a regulatory presumption by federal agencies that an ESA listing is not warranted" and purports to provide clear guidance to states regarding minimum requirements for state and multi-state conservation plans. It also notes that states "should be included as ...