Endangered Species Law & Policy

Earlier this week, the U.S. Fish and Wildlife Service (Service) published a Federal Register notice addressing 90-day findings for three separate species.  With the notice, two species moved one step closer to being listed under the federal Endangered Species Act (ESA).

In July of 2020, the Service received a petition to list the Alexander Archipelago wolf (Canis lupus ligoni) as an endangered or threatened species.  The wolf’s current range includes Alaska and Canada.  The Service concluded in the 90-day finding that listing may be warranted due to potential threats associated with logging and road development, illegal and legal trapping and hunting, the effects of climate change, and loss of genetic diversity and inbreeding depression.  As such, the Service will be initiating a status review to determine whether listing is warranted, and will presumably be issuing that determination within the next 12 months.

In August of 2020, the Service received a petition to list the western ridged mussel (Gonidea angulata) as an endangered species.  The mussel’s current range includes California, Oregon, Washington, Idaho, Nevada, and the Canadian province of British Columbia.  The Service concluded in the 90-day finding that listing may be warranted due to habitat destruction, modification, and curtailment of range, impacts to water quality, quantity, temperature, and natural flow, aquatic invasive species, and disease.  While a lengthy list, the Service did also find that there was inadequate information to conclude that listing may be warranted due to loss of genetic diversity, or overutilization of the species for commercial, recreational, scientific, or educational purposes.  The notice states that in light of the 90-day finding, the Service will be initiating a status review for the mussel.

In addition to the wolf and mussel 90-day findings, the notice also addressed a petition to delist the golden-cheeked warbler (Setophaga chrysoparia), a species that breeds in Texas and winters in a number of Central American nations.  Unlike with the wolf and the mussel, there is a bit of a backstory with respect to the warbler 90-day finding.  The petition to delist the warbler was submitted to the Service in 2015.  The following year the Service published a 90-day finding concluding that delisting was not warranted.  A federal lawsuit was filed challenging that determination, and in 2020 the U.S. Court of Appeals for the Fifth Circuit vacated the Service’s decision and remanded the matter back to the Service for a new determination.  (If you would like to learn more about this history, please check out our prior post.)  

In its new 90-day finding, the Service again concluded that there was insufficient information indicating that delisting may be warranted in spite of the outcome of the prior litigation and recent research reinforcing prior analyses that the species is more abundant than the Service has in the past presumed.  Given the previous litigation history, we anticipate the finding will be challenged.