Endangered Species Law & Policy

On March 18, three advocacy organizations and their members filed a lawsuit challenging an offshore wind project against the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The lawsuit alleges that the Biological Opinion (BiOp) issued by NMFS for Dominion Energy’s Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) because it fails to adequately analyze the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

On January 25, the Bureau of Ocean Energy Management (BOEM) and the National Oceanic and Atmospheric Administration (NOAA) Fisheries released a final North Atlantic Right Whale and Offshore Wind Strategy (the “Strategy”). The Strategy expresses the agencies’ joint goal of protecting and promoting the recovery of the North Atlantic right whale (Eubalaena glacialis) while responsibly developing offshore wind energy.

The North Atlantic right whale (NARW) population has declined significantly over the past decade. Population estimates through December 2022 indicate ...

On November 13, two advocacy organizations submitted a notice of intent to sue the National Marine Fisheries Service (NMFS) and the Bureau of Ocean Energy Management (BOEM). The notice letter alleges that the September 18, 2023 Biological Opinion (BiOp) issued by NMFS for the Coastal Virginia Offshore Wind (CVOW) project violates the Endangered Species Act (ESA) because it fails to adequately analyze and mitigate the project's impacts on the endangered North Atlantic right whale (Eubalaena glacialis). … 

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA).

In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change ...

On October 25, 2022, the Center for Biological Diversity (CBD) sued the U.S. Fish and Wildlife Service (Service) over the agency’s failure to timely finalize a proposed rule to list the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC). CBD seeks an order from the court declaring the Service is in violation of the Endangered Species Act (ESA) by failing to timely list the LEPC and requiring the Service to publish one or more final rules by a date certain.

On June 1, 2021, and in response to a 2016 petition to list the LEPC, the Service proposed to list two distinct population ...

For the magnificent ramshorn (Planorbella magnifica), a fresh-water snail species native to southeastern North Carolina, efforts to secure protection under the federal Endangered Species Act have progressed at a snail’s pace. Today, twelve years after environmentalists originally petitioned the U.S. Fish and Wildlife Service (Service) to list the species, the Service proposed to list the magnificent ramshorn as endangered, and to designate two ponds spanning 739 acres as critical habitat for the species. The proposed rule was prompted by a lawsuit filed by the Center of ...

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 ...

On May 16, 2022, the U.S. District Court for the Northern District of California overturned the U.S. Fish and Wildlife Service’s (Service) March 31, 2020 withdrawal (2020 Withdrawal) of a proposed Endangered Species Act (ESA) listing and section 4(d) rule for the “bi-state population” of the greater sage grouse (Bi-state Grouse). The Bi-state Grouse lives along the California-Nevada border within six population management units (PMUs) monitored by the Service.   

The Service proposed the Bi-state Grouse for listing as threatened in 2013, then later withdrew that proposal ...

On February 16, 2022, a California state court upheld protections afforded the western Joshua tree (Yucca brevifolia) under the California Endangered Species Act (CESA). The ruling came in connection with a lawsuit filed by the California Construction and Industrial Materials Association and others (Plaintiffs), alleging that the California Fish and Game Commission (Commission) failed to abide by its own rules in finding a petition to list the western Joshua tree indicated listing the tree may be warranted. A Commission finding that listing a species under CESA may be warranted ...

On January 12, 2022, the General Land Office of Texas (GLO) filed a lawsuit in the U.S. District Court for the Western District of Texas, challenging the U.S. Fish and Wildlife Service’s (Service) July 27, 2021 negative 90-day finding on a petition to delist the endangered golden-cheeked warbler (Setophaga chrysoparia) (Negative 90-day Finding). The Negative 90-day Finding is the second 90-day finding issued by the Service on the same petition to delist the golden-cheeked warbler.

GLO challenged the first 90-day finding, published on June 3, 2016, as arbitrary and capricious on ...

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 ...

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 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 ...

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 June 17, 2020, a federal court in Colorado vacated an incidental take permit (ITP) issued to the Nebraska Public Power District (NPPD) authorizing take of the endangered American burying beetle (ABB) that could occur in connection with NPPD’s construction and operation of the 225-mile R-Project transmission line (R Project). The court vacated the ITP on the grounds that its issuance by the U.S. Fish and Wildlife Service (USFWS) violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and section 106 of the National Historic Preservation Act ...

Consistent with Governor Brown's Drought Proclamation and Executive Orders, the U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR) sought and obtained a temporary modification of certain water quality objectives from the California State Water Resources Control Board (State Board) in order to allow for increased exports of water from the Central Valley Project and State Water Project in the Sacramento-San Joaquin Delta (Delta).  On June 3, 2015, environmental groups, including the California Sportfishing Protection Alliance ...