Endangered Species Law & Policy

The Klamath River Renewal Corporation (the "corporation") recently submitted a plan for the removal of four dams on the lower Klamath River to the Federal Energy Regulation Commission (FERC). In it, the corporation indicates its intent to sidestep compliance with the California Endangered Species Act and California’s Lake and Streambed Alteration Program by asking FERC to opine that those state law requirements are preempted by federal law. Among other things, these laws protect the critically endangered Lost River sucker (Deltistes luxatus) and shortnose sucker ...

In July we reported on five bills that propose to amend various aspects of the Endangered Species Act:

• H.R. 2603 - would remove listings of non-native species;
• H.R. 717 - would modify the process for listing determinations;
• H.R. 3131 - would require a party to prevail in order to recover attorneys' fees and place a cap on fees;
• H.R. 1274 - would require the U.S. Fish and Wildlife Service to make listing determination data available to impacted states; and
• H.R. 424 - would require the Department of the Interior to reissue final rules relating to the listing of the gray wolf in the ...

On January 20, 2015, the Senate Committee on Environment and Public Works approved S. 659, the Bipartisan Sportsmen’s Act of 2015, which complements the bill reported by the Senate Energy and Natural Resources Committee late last year.  However, the Environment and Public Works Committee’s approval adds a number of controversial amendments to the Act’s overarching purpose of increasing recreational hunting, fishing, shooting, conservation, and other access on public lands.  An amendment offered by Senator John Barrasso (R-Wyo.), and approved by voice vote, would delist ...

On January 28, 2015, Congressman Bill Flores (R-TX) introduced House Bill H.R. 585 (pdf), which seeks to amend the Endangered Species Act of 1973 (ESA) to establish a new procedure for approval of certain stipulated consent decrees between the federal government and third parties.  Specifically, in cases brought under the ESA's citizen suit provision (16 U.S.C. § 1540(g)), H.R. 585 would require that parties interested in intervening in a lawsuit would have 30 days to intervene, during which time the parties in the case would not be able to file a motion for a consent decree or to ...

On July 29, 2014, the U.S. House of Representatives passed Endangered Species Act (ESA) reform legislation introduced by members of the House Natural Resources Committee. As previously reported, the legislation consists of four bills seeking to amend the ESA by, among other things, requiring federal agencies to release to the public all data used to make its listing decisions, disclosing the amount of federal funds used in ESA-related lawsuits, and requiring that the best scientific and commercial data available include information provided by state, tribal, and county ...

Yesterday, the House of Representatives approved the Open Book on Equal Access to Justice Act (H.R. 2919), which would amend existing law to require the Executive Branch to provide an annual report to Congress on the amount of fees and other expenses awarded to prevailing parties, other than the United States, in certain administrative proceedings and civil suits, including certain lawsuits under the Endangered Species Act and other environmental statutes.  The Act would require the report to account for all payments of fees and other expenses awarded made pursuant to a ...

The Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, governs Federal funding and authorization for certain surface transportation projects.  Included in MAP-21 is a provision requiring all Federal agencies with approval authority over a specific category of transportation projects to render a decision on an expedited basis.  23 U.S.C. 139 (h)(6).  Specifically, MAP-21 states that when the Federal Transit Administration (FTA) and/or Federal Highway Administration (FHWA) are required to prepare an environmental impact statement or ...

Republican Congressman Chris Stewart (UT) recently introduced a bill (pdf) that would amend the Endangered Species Act (ESA) to require federal wildlife agencies to include the number of species found on state, tribal, and private lands in its official count when determining whether a species should be protected under the ESA.  Currently, the ESA does not include a specific requirement regarding how to account for a species’ population.  Rather, federal agencies are required to use the best scientific and commercial data available when determining whether a species is ...

Members of the Endangered Species Act (ESA) Congressional Working Group recently released a final report (pdf) asserting that the ESA is not working and providing four recommendations for improvement.

The report is the result of an eight-month effort led by Republican Representatives Doc Hastings (WA) and Cynthia Lummis (WY) to examine the ESA. The group received input from hundreds of individuals on how the ESA is currently being implemented, and whether it could be updated to be more effective. The report concludes that [a]fter more than 40 years, sensible, targeted reforms ...

The U.S. Senate is set to consider exempting three antelope species from protection under the Endangered Species Act (ESA). The scimitar-horned oryx (Oryx dammah), the dama gazelle (Gazella dama), and the addax antelope (Addax nasomaculatus) - affectionately known as the Three Amigos - were exempted from 2005 until 2012, when the U.S. Fish and Wildlife Service relisted the species as endangered.

On January 15, the U.S. House of Representatives passed a $1.1 trillion spending bill (pdf) that would fund the federal government through the remainder of fiscal year 2014. Included in ...

A bill (pdf) to amend the Endangered Species Act (ESA)—entitled the Endangered Species Management Self-Determination Act (Bill)—has been introduced in the United States Senate. The Bill, authored by Senators Rand Paul (R-Ky.), Mike Lee (R-Utah) and Dean Heller (R-Nev.) and by Representative Mark Amodei (R-Nev.), seeks to make two fundamental changes to the ESA: to alter the balance of power between states and the federal government, and to provide new property rights to landowners impacted by the ESA.

First, the Bill would tip the balance of authority to manage protected ...

On September 20, 2013, H.R. 1526, the Restoring Healthy Forests for Healthy Communities Act (pdf), was passed by the House of Representatives by a vote of 244-173. Shortly thereafter, the bill was referred to the Senate Committee on Energy and Natural Resources. Notably, H.R. 1526 includes provisions that, for certain projects authorized under the bill, would alter the way interagency consultation is conducted under section 7(a)(2) of the Endangered Species Act (ESA) and would foreclose parties from seeking relief in federal court prior to obtaining a final, unappealable decision on the merits.

The bill was introduced in the House of Representatives by Congressman Doc Hastings (R-Wash,) and has 22 co-sponsors. Its principal stated purpose is to restore employment and educational opportunities in, and improve the economic stability of, counties containing National Forest System land, while also reducing Forest Service management costs, by ensuring that such counties have a dependable source of revenue from National Forest System land. Section 103(a) of the bill calls for the Secretary of Agriculture to designate Forest Reserve Revenue Areas for each unit in the National Forest System. Section 104(a) authorizes and encourages the Secretary to commence covered forest reserve projects in Forest Reserve Revenue Areas.

Today, the House Natural Resources Committee is holding a full committee oversight hearing on species conservation efforts undertaken at on-the-ground-levels in an effort to compare those efforts with the effectiveness of Endangered Species Act (ESA) lawsuits. The hearing, entitled Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices, is the first in a series of hearings planned by the House to review the effectiveness of conservation efforts under the ESA.

Natural Resources Committee ...

The State of Idaho enacted a law (pdf) this spring asserting that the State has primacy over the management of fish and wildlife. The law was introduced as Senate Bill 1061 and signed into law by Governor Butch Otter on March 22, 2013. In addition, the law states that introduction or reintroduction of any federally listed species onto lands within the state or into state waters, including those actions that would impair or impede the state's primacy over its land and water, without state consultation and approval is against the policy of the state of Idaho. The law plainly is intended to ...

On January 31, 2013, the National Marine Fisheries Service (NMFS) issued a proposed rule to regulate the impact of United States Navy exercises on marine mammals.  The rule would affect areas off the Southern California, Atlantic, and Hawaiian coastlines.

The proposed rule is in response to the Navy’s request for authorization to incidentally take (e.g., harm or kill) 62 species of marine mammals as a result of training exercises.  The proposed rule would authorize over 31 million takes during a five-year period.

All of the 62 species at issue are protected under the Marine ...

Recently, House Representatives John Garamendi (D-Fairfield, CA), Jerry McNerney (D-Stockton, CA), Doris Matsui (D-Sacramento, CA), George Miller (D-Martinez, CA), and Mike Thompson (D-St. Helena, CA) introduced H.R. 6484 (pdf), a bill entitled the SAFE Levee Act. The bill would authorize the Secretary of the Interior to provide assistance to local interests for levee stability improvements within the Sacramento-San Joaquin Delta and require the Secretary of the Interior to carry out a cost-benefit analysis of water conveyance options being considered in the Bay Delta ...

Part I: Assembly Bill 2402 (Huffman)

On September 25, 2012, Governor Jerry Brown signed Assembly Bill 2402 and Senate Bill 1148, which make a number of changes to the Fish and Game Code, into law.  AB 2402 was sponsored by Assemblyman Jared Huffman and SB 1148 by Senator Pavely and these bills will implement a number of recommendations that emerged from a Strategic Vision process for the Department of Fish and Game and the Fish and Game Commission that took place during 2011 and 2012.  SB 1148 will be discussed in Part II of this update.

The key provisions of AB 2402 are described below.

• Section 8 ...

Governor Brown signed a bill into law that generally makes it unlawful to permit or allow a dog to pursue a bear or bobcat at any time. The bill, introduced as SB 1221 by State Senator Ted Lieu, is intended to curb the use of dogs to hunt bears or bobcats.  Debate over the bill divided both houses of the California legislature.  David Siders reported that "[t]he legislation pitted wildlife advocates against hunters at the California Capitol – the former raising concerns about the humane treatment of animals, the latter about urban elitism" (Sacramento Bee, Sept. 27, 2012).

The bill to ban ...

On May 11, Representatives Nunes, Denham, and McCarthy introduced H.R. 1837 (pdf) "to address water-related concerns on the San Joaquin River, and for other purposes."  A section by section analysis is available here (pdf).

Title I of the bill includes a number of proposed amendments to the Central Valley Project Improvement Act (CVPIA), 106 Stat. 4706.  Among other things, it eliminates non-native fish including striped bass from the list of "anadromous fish" that are protected by the CVPIA and it facilitates water transfers.  This title also:

• specifies that all Endangered ...

On March 30, Representatives Cardoza and Costa introduced a bill in the U.S. House of Representatives, H.R. 1251, entitled the More Water for our Valley Act.  The purpose of the bill is to "provide congressional direction for implementation of the Endangered Species Act as it relates to operation of the Central Valley Project and the California State Water Project and for water relief in the State of California."  To accomplish this purpose, the bill would modify certain existing restrictions on Central Valley Project and State Water Project operations until March 1, 2015, which were ...