Endangered Species Law & Policy

On June 16, 2023, in a highly anticipated decision, the United States Court of Appeal for the D.C. Circuit set aside a biological opinion regarding the effects of the federal lobster fishery on the North Atlantic right whale (Eubalaena glacialis). The court held that a presumption in favor of an endangered species is not required by the Endangered Species Act (ESA) and, further, that such a presumption can distort the agency’s scientific judgment and did so in this circumstance.

The National Marine Fisheries Service (NMFS) issued the biological opinion in 2021 analyzing the ...

On May 25, 2023, the federal District Court for the District of Massachusetts denied a motion by plaintiffs seeking to halt construction of the Vineyard Wind project offshore of Massachusetts, in the case of Seafreeze Shoreside, Inc. v. U.S. Department of Interior, 22-cv-11091 (Talwani, J.). The summary judgment motions in the case are still pending, and the plaintiffs have appealed the decision denying their request for a preliminary injunction or stay under the Administrative Procedure Act (APA) to the United States Court of Appeals for the First Circuit.

The plaintiffs in ...

On May 15, 2023, the U.S. Fish and Wildlife Service (Service) issued two mitigation policies: one titled “Mitigation Policy” and another titled “Endangered Species Act Compensatory Mitigation Policy.” The Mitigation Policy provides a framework to inform Service mitigation procedure and policy, while the Endangered Species Act (ESA) Compensatory Mitigation Policy provides guidance on implementation of the ESA through compensatory mitigation mechanisms. The Service states that both policies are intended as guidelines for Service personnel to follow when ...

On May 17, 2023, the federal District Court for the District of Massachusetts granted summary judgment in favor of the United States Bureau of Ocean Energy Management (BOEM) and Vineyard Wind and denied summary judgment to the plaintiffs in the case of Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, 21-cv-11390 (Talwani, J.). This is the first federal court decision upholding, on the merits, the federal government’s approval of a commercial-scale offshore wind project. There are three other cases pending that also seek to block the construction ...

On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA). The Ninth Circuit upheld the district court’s ruling that the Service improperly designated the challenged area as occupied critical habitat. With respect to the ...

This month, the United States Fish and Wildlife Service (Service) published the latest update to its National Listing Workplan (Workplan). This update to the Workplan is the Service’s latest since March 2022 and projects the anticipated timeline for the agency’s listing-related decisions over the next five years (2023-2027). In general, the Workplan estimates the Service’s publication dates for various findings and publications, including but not limited to 12-month findings, species status reviews, proposed listing determinations and critical habitat ...

On April 13, 2023, the United States Fish and Wildlife Service (“Service”) published a proposed rule to revise the critical habitat designation for the rufa red knot (Calidris canutus rufa). The red knot is a shorebird that migrates annually between the Canadian Arctic and wintering regions to the south, including the Southeast United States, the Northeast Gulf of Mexico, northern Brazil, and Tierra del Fuego at the southern tip of South America. During both northbound (spring) and southbound (fall) migrations, red knots use key staging and stopover areas to rest and feed.  

The ...

On April 11, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the bracted twistflower (Streptanthus bracteatus), a wildflower native to Texas, as threatened with a rule issued under section 4(d) of the Endangered Species Act (ESA). The Service also finalized a critical habitat designation for the species spanning approximately 1,596 acres in the Texas counties of Uvalde, Medina, Bexar, and Travis. The critical habitat designation consists of almost entirely public land, with the exception of approximately 63 acres of privately owned land (however ...

On April 3, the U.S. Fish and Wildlife Service (Service) rejected a petition filed by a group of environmental organizations under section 4(e) of the Endangered Species Act (ESA) to list the coyote (Canis latrans) as an endangered species due to its similarity of appearance to the endangered Mexican wolf (C. lupus baileyi). Section 4(e) of the ESA gives the Service the ability to list a species on the basis that its “similarity of appearance” to an endangered or threatened species imperils the protected species’ survival and recovery.

In the petition, the environmental ...

Last week, the U.S. District Court for the District of Columbia issued a ruling allowing the Center for Biological Diversity (CBD) to continue pursuing its large Endangered Species Act (ESA) lawsuit against the U.S. Fish and Wildlife Service (Service) and the Department of the Interior.

The underlying lawsuit, filed in 2019, alleges that the Service violated the ESA by failing to timely publish 12-month findings on nearly 200 listing petitions, final listing determinations for six species, and designations of critical habitat for four species.  In response, the Service filed a ...