Endangered Species Law & Policy

In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).

The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended ...

On August 15, 2011, after a little more then a decade of protection, the Fish and Wildlife Service (Service) announced that the Lake Erie water snake (Nerodia sipedon insularum) was recovered and that it has been removed from the list of threatened and endangered species.  The Service, which listed the Lake Erie water snake as a threatened species in 1999, stated that the recovery was achieved through minimizing and reducing "the threats to the snake by sustaining and protecting summer and hibernation habitats and ensuring the permanent protection of shoreline ...

The Fish and Wildlife Service announced it is listing the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as endangered on an emergency  basis under the Endangered Species Act.  The agency decision (pdf) appears in the August 10, 2011 Federal Register.  The species "is currently known to occur at only a few small remote islands within the Florida Keys."  This current distribution is dramatically smaller than the historic distribution, according to the Service: "the Miami blue has undergone a substantial reduction in its historical range, with an estimated > 99 percent ...

On August 8, 2011, the Center for Biological Diversity (CBD) reported that the U.S. Fish and Wildlife Service (Service) listed five fish species located in Alabama, Arkansas, Kentucky, and Tennessee as endangered under the federal Endangered Species Act.  The five fish species include the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus crypticus), and laural dace (Chrosomus saylori).  All five fish species were previously identified on the Service's candidate list, which ...

The United States District Court for the District of Oregon issued a decision (pdf) invalidating the National Marine Fisheries Service's (NMFS) 2008 and 2010 biological opinions for operation of the Federal Columbia River Power System (FCRPS) by the Army Corps of Engineers and Bureau of Reclamation after the parties to the litigation challenging those decisions filed cross-motions for summary judgment. The court held that NMFS improperly made a no jeopardy determination with respect to certain listed salmonids on the basis of unidentified habitat mitigation measures.

The ...

On August 3, 2011, a federal judge upheld (pdf) a congressional budget rider that removed Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. The legislation was included as part of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (pdf) (H.R. 1473) (the Act), which was passed by Congress and signed by the President in April 2011. Section 1713 of the Act directed the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except for in the state of ...

On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law.  Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program.  The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules ...

The journal Conservation Biology recently posted a forthcoming article on their website that I co-authored with Drs. Dennis Murphy and Kenneth Cummins entitled, A Critical Assessment of the Use of Surrogate Species in Conservation Planning in the Sacramento-San Joaquin Delta, California (U.S.A.). The principle purpose of the article is to assess the use of surrogate species in the Sacramento-San Joaquin Delta. Specifically, we examined the use of surrogate species, in the form of cross-taxon response-indicator species, that is, one species from which data are used to guide ...

The National Marine Fisheries Service (NMFS) has suspended its letter of authorization (LOA) under Section 120 of the Marine Mammal Protection Act (MMPA) allowing the States of Oregon and Washington to lethally remove California sea lions caught eating endangered salmon and steelhead in the Columbia River.  NMFS cited pending litigation in Federal court and limited sea lion activity for its decision, and invited the states to renew their request for an LOA in 2012.  NMFS’ decision comes in the wake of an agreement (see earlier post) between wildlife advocates and the two states to ...

On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a ...