Endangered Species Law & Policy

On July 27, 2022, the U.S. Fish and Wildlife Service (Service) published an advance notice of proposed rulemaking (ANPR) seeking comment on species conservation banking. Species conservation banking gives developers and other entities the opportunity to mitigate potential harm to wildlife by allowing them to purchase habitat or species credits from bank owners. The ANPR is a result of a provision in the 2021 National Defense Authorization Act (NDAA) that required the Service to issue regulations for species conservation banking programs. Although the ANPR stems from the NDAA ...

On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services) published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” (2020 Rule) under the Endangered Species Act (ESA). In rescinding the definition of “habitat,” the Services explained they were removing an “excessive constraint” on the agencies’ ability to designate critical habitat under the ESA. Specifically, the Services ...

On May 19, 2022, the Center for Biological Diversity (CBD) filed a lawsuit in the U.S. District Court for the District of New Mexico, challenging the U.S. Fish and Wildlife Service’s (Service) failure to make a timely 12-month finding on the group’s petition to list the dunes sagebrush lizard (Sceloporus arenicolus) (DSL), which was submitted to the agency in 2018.

The DSL is no stranger to controversy. In 2002, CBD and others petitioned the Service to list the DSL due to alleged threats to the species’ habitat caused by oil and gas production. In 2004, the Service determined that ...

This week, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the sand dune phacelia (Phacelia argentea) as threatened under the Endangered Species Act (ESA), along with a proposed section 4(d) rule that would prohibit several activities with respect to the species.  The proposed rule also includes a designation of approximately 252 acres of critical habitat in Del Norte County in California, and Coos and Curry Counties in Oregon. 

The sand dune phacelia is an evergreen, herbaceous, flowering perennial in the forget-me-not family of plants.  It blooms from ...

On March 22, 2022, the Office of Information and Regulatory Affairs (OIRA) received from the U.S. Fish and Wildlife Service (Service) an Endangered Species Act (ESA)-specific compensatory mitigation policy (Policy). While the text of the Policy is not publicly available at this time, many have speculated that an updated Policy may mirror that which was in place under the Obama Administration.

On December 27, 2016, the Service published its final ESA Compensatory Mitigation Policy (2016 Policy) establishing the agency’s goal that compensatory mitigation provided under ESA ...

The U.S. Fish and Wildlife Service (Service) has announced its proposal to list the northern long-eared bat (Myotis septentrionalis) (NLEB) as endangered under the Endangered Species Act (ESA) (Proposed Rule). While Service policy indicates the agency should identify in a listing rule activities that would or would not result in a violation of the “take” prohibition set forth in section 9 of the ESA, the Service indicates in the Proposed Rule that it is unable to identify specific activities what would not violate the take prohibition. The Service points to the need for ...

Last Friday, the U.S. District Court for the Eastern District of California issued an order on competing motions in the coordinated cases challenging the 2019 biological opinions (BiOps) that govern operation of California’s State Water Project and the federal Central Valley Project (Projects). The hefty order, which spanned over a hundred and twenty pages, attempted to distill the thousands of pages of briefing the parties submitted on the matter. Admittedly, stakes were high: these two Projects supply water to more than 25 million Californians and to farmers across the ...

On February 9, 2022, the U.S. District Court for the District of Colorado found that the Bureau of Land Management (BLM) violated the Endangered Species Act (ESA) when it failed to reinitiate consultation with the U.S. Fish and Wildlife Service (Service) prior to approving oil and gas leases. BLM had issued the leases for parcels of land in Southwest Colorado located within Gunnison sage-grouse (Centrocercus minimus) habitat and other proposed and existing areas of environmental concern.

The ESA requires federal agencies to review federal actions “at the earliest possible time ...

Last week, a decision out of the U.S. District Court for the Northern District of California restored Endangered Species Act (ESA) protections for the gray wolf (Canis lupus) across most of the contiguous United States.

In 2020, the U.S. Fish and Wildlife Service (Service) issued a final rule removing federal protections for the last two remaining gray wolf entities listed as threatened or endangered under the ESA.  The final rule asserted delisting was warranted because neither the Minnesota entity nor the 44-state entity qualified as a species, subspecies, or distinct population ...

On February 8, 2022, the U.S. Fish and Wildlife Service (Service) published findings on several petitions to list species under the Endangered Species Act (ESA), some of which have been highly anticipated.

Pursuant to an August 2020 settlement agreement between the Service, WildEarth Guardians, and Western Watersheds Project, the Service published a 12-month finding on a petition to list the Sonoran desert tortoise (Gopherus morafkai). The tortoise is patchily distributed across 68,600 square miles in the Sonoran Desert ecoregion of Arizona and Sonora, Mexico. In its 12-month ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule reclassifying the Morro shoulderband snail (Helminthoglypta walkeriana) from endangered to threatened under the Endangered Species Act (ESA). The final rule also includes a rule issued under ESA section 4(d) to provide for the conservation of the species.

The Morro shoulderband snail, or banded dune snail, is a type of terrestrial snail named after the dark band on the shoulder of its shell. The species is typically found in dense clumps of grass, young patches of ice plant, and stockpiled anthropogenic ...

On January 25, 2022, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti) as endangered under the Endangered Species Act (ESA).

The Sacramento Mountains checkerspot butterfly is a small butterfly with dark brown, red, orange, and cream coloring, punctuated by black spots and dark lines, on its wings. The butterfly is a subspecies of the Anicia checkerspot, or variable checkerspot, in the Nymphalidae family, and is native to the Sacramento Mountains in south-central New ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule listing the Panama City crayfish (Procambarus econfinae) as threatened under the Endangered Species Act (ESA), along with a section 4(d) rule limiting take of the species.  The final rule also includes a designation of eight units of critical habitat, totaling approximately 4,138 acres, in Bay County, Florida.

The Panama City crayfish is a small, semi-terrestrial crayfish that grows to about two inches in length (minus claws), and is found in southcentral Bay County, Florida.  The species’ color pattern ...

On December 22, 2021, the U.S. Fish and Wildlife Service (Service) proposed to list the cactus ferruginous pygmy owl (Glaucidium brasilianum cactorum) (Owl) as threatened under the Endangered Species Act (ESA) primarily due to threats from climate change and habitat loss and fragmentation. The Service has also proposed to issue an ESA section 4(d) rule which would prohibit “take” of the Owl in most cases, while exempting from the prohibition certain land management activities compatible with restoration and improvement of Owl habitat where such activities have been ...

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities. … 

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the Biden administration’s proposal to rescind the definition of habitat.  The definition was promulgated by the Trump administration in response to the decision of the U.S. Supreme Court in 2018 in Weyerhauser Co. v. U.S. Fish and Wildlife Service, a case involving a challenge to the rule designating critical habitat for the dusky gopher frog in the American southeast. … 

On November 10, 2021, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule to list the bracted twistflower (Streptanthus bracteatus), a plant species found only in Texas, as a threatened species under the Endangered Species Act (ESA).  The USFWS is proposing to list the bracted twistflower with a species-specific rule under section 4(d) of the ESA (4(d) rule), as well as to designate approximately 1,607 acres in central Texas as critical habitat for the species.

The bracted twistflower is a flowering annual plant and a member of the mustard family that can grow over ...

Last week, the Center for Biological Diversity (CBD) filed suit against the U.S. Fish and Wildlife Service in the U.S. District Court for the Central District of California, alleging that the agency violated the Endangered Species Act (ESA) when it failed to timely determine whether the Santa Ana speckled dace (hinichthys osculus ssp.) and the Long Valley speckled dace (Rhinichthys osculus ssp.) warrant listing as endangered or threatened species. … 

On October 25, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the coastal distinct population segment (DPS) of Pacific marten (Martes caurina), also known as coastal marten, under the federal Endangered Species Act (ESA).  In the proposed rule, the Service identifies a total of approximately 1,413,305 acres of land in northwestern California and southwestern Oregon to designate as critical habitat for the coastal marten. 

Listed as a threatened species in October 2020, the coastal marten is a medium-sized carnivore in the ...

On October 14, 2021, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the bog buck moth (Hemileuca maia menyanthevora) (= H.iroquois) as endangered under the Endangered Species Act (ESA). The Federal Register notice also states that the Service will make a final determination on the proposed listing within one year, and that it is seeking comments on the proposed designation.

The bog buck moth occurs in groundwater-fed wetlands in Oswego County, New York, and Ontario, Canada, with large amounts of bog buckbean (a plant that is a key food source, or “host plant” for bog buck moth larvae, much as milkweed is a host plant for monarch butterfly larvae). …

On October 18, 2021, the U.S. Fish and Wildlife Service (Service) issued a final rule reclassifying the humpback chub (Gila cypha), a fish endemic to portions of the Colorado River basin, from endangered to threatened under the Endangered Species Act (ESA).  The Service attributed the chub’s status upgrade largely in part to modifications in how reservoir managers are operating their facilities, and the management of nonnative predators.

The chub was first listed as an endangered species in 1967 under the Endangered Species Preservation Act, a predecessor to the ESA.  In 1974, the ...

Last week, the U.S. Fish and Wildlife Service (Service) published two proposed rules to delist a total of 24 species under the Endangered Species Act (ESA).  First, the Service published a proposed rule delist 23 species as a result of the species’ extinction.  The 23 now-extinct species include thirteen species of birds, eight freshwater mussels, one Texas fish, and one Hawaiian plant.  The Federal Register notice indicates that, based on the best available scientific and commercial data, these species are no longer extant, and therefore no longer meet the definitions of ...

On September 20, 2021, the U.S. District Court for the Central District of California set aside the U.S. Fish and Wildlife Service’s (Service) negative 12-month finding (Finding) on a petition by WildEarth Guardians (Guardians) to list the Joshua tree (Yucca brevifolia) as threatened under the Endangered Species Act (ESA).

The petition had alleged that the Joshua tree is threatened by the effects of climate change and its associated effects, including drought and increasing wildfires. On September 14, 2016, the Service issued a positive finding on Guardians’ petition ...

Today, the U.S. Fish and Wildlife Service (Service) announced its 90-day findings on petitions to list two proposed distinct population segments (DPS) of the gray wolf (Canis lupus) as threatened or endangered under the Endangered Species Act (ESA): a Northern Rocky Mountains DPS and a Western United States DPS. The Service determined that listing may be warranted, and announced its intention to initiate a status review for these populations of the species.

In 1978, except for the Minnesota population, the gray wolf was listed as an endangered species throughout the ...

On September 8, 2021, the U.S. Fish and Wildlife Service ("USFWS") published a final rule in the Federal Register listing the slenderclaw crayfish as endangered under the Endangered Species Act ("ESA") and identifying approximately 78 miles of river in DeKalb and Marshall Counties, Alabama as critical habitat for the species.

The slenderclaw crayfish is a small freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in Alabama. Most of the slenderclaw crayfish’s natural habitat was flooded when the Tennessee River was dammed in 1939 to ...

The U.S. Fish and Wildlife Service (Service) recently listed the Franklin’s bumble bee as an endangered species under the Endangered Species Act.  Historical records indicate that the species is endemic to southwest Oregon and northern California.  The last known record of the species dates back to 2006.  The Service’s decision is the culmination of a listing process that began 11 years ago with the submission of a petition to list by the Xerces Society in 2010.

In its press release announcing the decision, the Service both noted that Franklin’s bumble bee has the smallest known ...

On August 18, 2021, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a final rule designating more than 1,315 acres across 14 units as critical habitat (“Final Rule”) for two neotenic salamander species known only from Williamson and Bell Counties, Texas: the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis).  The species are “neotenic” because they do not transform into a terrestrial form and instead spend their entire life cycle in water.  The Final Rule was published in accordance with a ...

Today, the U.S. Fish and Wildlife Service (“Service”) published in the Federal Register a proposal to list six Central Texas mussel species under the Endangered Species Act (“ESA”), to issue an ESA section 4(d) rule for one of the species, and to designate critical habitat (“Proposed Rule”).  Specifically, the Service has proposed to list the Guadalupe fatmucket (Lampsilis bergmanni), Texas fatmucket (Lampsilis bracteata), Guadalupe orb (Cyclonaias necki), Texas pimpleback (Cyclonaias (=Quadrula) petrina), and false spike (Fusconaia (=Quincuncina) mitchelli) as endangered ... 

On Monday, the U.S. Fish and Wildlife Service (FWS) published a final rule delisting the now-recovered Cumberland sandwort (Arenaria cumberlandensis) under the Endangered Species Act (ESA).  Originally listed as endangered in 1988, the Cumberland sandwort is a perennial plant species occurring in cave-like “rockhouses” or bluff sites throughout northern Tennessee and southern Kentucky.  In 1996, the FWS released a recovery plan for the species.  By December of 2013, the FWS recommended downlisting the Cumberland sandwort to threatened status, and in April of 2020, the ...

Last Friday, the U.S. Fish and Wildlife Service (“USFWS”) finalized the removal of the now-recovered Trifolium stoloniferum (running buffalo clover) from the list of endangered and threatened wildlife and plants protected under the Endangered Species Act (“ESA”).  Running buffalo clover is a perennial species with small white flowers and leaves divided into three leaflets.  The plant produces creeping stems that “run” along the surface of the ground to re-root and form new clusters of clover.

The USFWS initially listed the running buffalo clover as an endangered ...

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

On June 29, 2021, fourteen members of Congress delivered a letter to Secretary of the Interior Deb Haaland urging the U.S. Fish and Wildlife Service (Service) to use its authority to list the monarch butterfly (Danaus plexippus) on an emergency basis under section 4 of the Endangered Species Act (ESA). The letter, which garnered only Democratic support, notes that the population of western monarchs has sunk to under 2,000 individuals and states that immediate action is necessary to prevent extinction of the species.

Section 4 of the ESA authorizes the Service to immediately place a ...

The American Bar Association has published a newly revised edition of its tome Endangered Species Act: Law, Policy, and Perspective.  Editors Don Baur and Jake Li pulled together leaders in the field from government, the private sector, and non-profits who penned 18 chapters covering all aspects of the Endangered Species Act (ESA) and its implementation.  The volume also covers related topics including state-level and international efforts to protect wildlife.

Steve Quarles, Paul Weiland, and Brian Ferrasci-O’Malley contributed a chapter in the volume on the prohibitions ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

On May 14, 2021, the Department of Justice filed a brief with the Supreme Court arguing that the Court should not hear the case of Kansas Natural Resource Coalition v. Department of Interior (“KNRC”). KNRC is a challenge to a rule interpreting the Endangered Species Act (“ESA”) that was jointly issued by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) in 2003: The “Policy for Evaluation of Conservation Efforts When Making Listing Decisions,”(68 Fed. Reg. 15,100 ...

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

The U.S. Fish and Wildlife Service (Service) recently announced its finding that three salamander species do not warrant listing as endangered or threatened species under the Endangered Species Act (ESA). The Service’s announcement follows a court-approved settlement agreement in which the Service agreed to make a 12-month finding for the Shasta salamander (Hydromantes shastae), Samwel salamander (H. samweli), and Wintu salamander (H. wintu). The finding comes despite concerns from some environmental groups that a proposed project to raise the height of the Shasta Dam and ...

In the first week of May, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) proposed rules to remove six species from the lists of endangered and threatened wildlife and plants under the Endangered Species Act (“ESA”).

On May 4, 2021, NMFS issued a proposed rule to remove Siderastrea glynni, a coral originally found at Urabá Island, Panama Gulf, from the ESA lists.  The coral was first discovered in 1992 and was initially thought to be the only extant Siderastrea species in the eastern Pacific Ocean.  NMFS received a petition to ...

This week, I published a post on the Center for California Water Resources Policy and Management’s DeltaCurrents blog discussing the role of conceptual ecological models in implementing the federal Endangered Species Act. Conceptual ecological models are a specialized subset of conceptual models generally intended to describe the environmental factors that affect an ecological community, a species, or a population. Conceptual ecological models are useful in a variety of contexts ranging from development of research proposals and monitoring schemes, to regulatory ...

In the 1978 amendments to the Endangered Species Act (ESA), Congress created the Endangered Species Act Committee, also know as the “God Squad.” The God Squad is composed of mostly Cabinet-level officials and has the authority to exempt a federal agency action from the ESA’s prohibition on taking actions that could lead to the extinction of an endangered or threatened species. While the God Squad has been around for more than four decades, its awesome powers have rarely been invoked. Perhaps due to scientific advances, it is possible that the God Squad may itself be heading for ...

In 2017, the Natural Resources Defense Council filed a lawsuit against the U.S. Environmental Protection Agency (EPA) over its approval of pesticides containing three active ingredients – acetamiprid, dinotefuran, and imidacloprid – due to their allegedly negative impacts on species listed as threatened or endangered under the Endangered Species Act (ESA).  On February 8, 2018, the parties agreed to dismiss claims related to 36 of the pesticides. 

On January 28, 2021, the Court approved a partial settlement pertaining to 46 of the remaining pesticides.  Specifically, for ...

In December 2020, the United States District Court for the District of Montana issued an order on cross-motions for summary judgment concluding that it lacked jurisdiction—under both the Administrative Procedure Act (APA) and Endangered Species Act (ESA)—to hear a lawsuit involving an environmental group’s denied request to update an existing recovery plan for the grizzly bear (Ursus arctos horribilis). Ctr. for Biological Diversity v. Bernhardt, CV 19-109-M-DLC, at 26 (D. Mont. Dec. 23, 2020) (Order). After listing the grizzly bear nearly half a century ago, the U.S ...

On January 20, 2021, President Biden announced his administration will review regulatory actions taken between January 20, 2017 and January 20, 2021 in accordance with an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). Among the agency actions to be reviewed under the EO are a number of regulations and policies finalized by the Trump Administration involving Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and other related statutes.

An initial pre-publication announcement ...

On January 13, 2021, the U.S. Fish and Wildlife Service (Service) published a final rule to remove the inland population of the Interior least tern (Sterna (now Sternula) antillarum) from the list of endangered and threatened wildlife under the Endangered Species Act (ESA).  Originally listed as an endangered species under the ESA in 1985, the Interior least tern is a small, fish-eating bird occurring along the Arkansas, Ohio, Mississippi, Missouri, Red, and Rio Grande rivers.  

Prior to listing, the Interior least tern’s population had fallen below 2,000 as a result of habitat ...

On December 31, 2020, the National Marine Fisheries Service (“NMFS”) proposed to amend regulations implementing the Atlantic Large Whale Take Reduction Plan (“ALWTRP” or “Plan”) with the stated goal of reducing the incidental mortality and serious injury to the endangered North Atlantic right whale, as well as fin whales and humpback whales, in the Northeast commercial lobster and crab trap/pot fisheries. The agency stated that the amendment is needed in order to comply with the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA” ...

On December 15, 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the agencies) released a pre-publication version of a final rule providing a definition of “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  The agencies released a proposed rule defining habitat in August 2020 in response to a unanimous decision by the U.S. Supreme Court in 2019 overturning a lower court decision that upheld a controversial determination of critical habitat by the U.S. Fish and ...

On November 19, 2020, in a call back to its criminal lawsuit against Joseph “Tiger King” Maldonado-Passage, the U.S. Department of Justice filed a civil lawsuit against the husband and wife team who took over the wildlife park that was front and center throughout the Netflix hit series Tiger King – Jeffrey and Lauren Lowe. Unlike the prior lawsuit against Mr. Maldonado-Passage (previously covered here), the lawsuit against the Lowes does not seek jail time, nor does it seek damages. Instead, the lawsuit asks the U.S. District Court for the Eastern District of Oklahoma to (1 ...

On November 3, 2020, the United States Fish & Wildlife Service (“Service”) published a final rule removing the gray wolf (canis lupus) from the federal list of Endangered and Threatened Species in the lower 48 United States and Mexico. The rule will take effect on January 4, 2021. At the same time, the Service denied a petition, filed by environmental groups, to maintain protections for the gray wolf in the lower 48 United States. However, the Service did maintain the separate listing of the Mexican wolf subspecies as endangered, a listing that was put in place on January 16, 2015; the ...