Endangered Species Law & Policy

On June 22, 2023, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services), issued three sets of proposed revisions to their Endangered Species Act (ESA) regulations addressing: (1) interagency consultations under ESA section 7; (2) the procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and (3) reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all ...

On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA). The Ninth Circuit upheld the district court’s ruling that the Service improperly designated the challenged area as occupied critical habitat. With respect to the ...

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit issued a ruling holding that the United States Fish and Wildlife Service’s (Service) decision not to modify a recovery plan for the grizzly bear (ursus arctos horrbilis) was not a final agency action subject to review under the Administrative Procedure Act (APA).

In 1975, the Service listed the grizzly bear as a threatened species under the Endangered Species Act (ESA).  At the time of listing, the grizzly bear’s population in the contiguous United States fell to between 700-800 individuals.  Pursuant to its ...

On December 21, 2022, the U.S. Court of Appeals for the Ninth Circuit ruled that the Environmental Protection Agency’s (EPA) 2019 registration of the pesticide “sulfoxaflor” violated the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by unconditionally expanding allowed uses of the pesticide to blooming crops and removing certain restrictions. The court held that the agency violated the ESA by not making an “effects” determination to trigger “consultation” with a wildlife agency and violated FIFRA by failing ...

Reversing the district court, a divided panel of the Ninth Circuit held that that the Bureau of Reclamation and a local water agency have discretion to release water from Twitchell Dam on the Santa Maria River on the Central Coast of California to comply with the federal Endangered Species Act. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist. (Ninth Cir. No. 21-55479, Sept. 23, 2022). The court concluded that a 1958 federal law (P.L. 774) authorizing the operation of the dam for purposes other than irrigation, flood control, and water conservation provided ...

On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) stayed a July 5, 2022 order of the U.S. District Court for the Northern District of California (District Court) vacating several Endangered Species Act (ESA) regulations promulgated by the Trump Administration in 2019 (2019 Rules). In a brief order, the Ninth Circuit indicated the District Court “clearly” erred in vacating the 2019 Rules without first ruling on their underlying legal validity. As a result of the decision of the Ninth Circuit, the District Court’s vacatur of the 2019 Rules is ...

On August 11, 2021, the U.S. Court of Appeals for the Ninth Circuit granted partial vacatur of an appeal brought by the U.S. Army Corps of Engineers (Corps) challenging a district court decision to vacate and enjoin use of the 2017 version of nationwide permit 12 (NWP 12).

The underlying lawsuit was brought by Northern Plains Resource Council against the Corps over the Corps’ authorization of impacts to waters of the United States under NWP 12 in connection with the Keystone XL pipeline. In April 2020, the U.S. District Court for the District of Montana vacated NWP 12 throughout the ...

In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the ...

On April 23, 2019, the U.S. Court of Appeals for the Ninth Circuit found that environmental groups have standing to challenge the federal government’s killing of gray wolves in Idaho without conducting additional analysis under the National Environmental Policy Act (NEPA). Western Watersheds Project et al. v. Grimm, No. 18-35075 (9th Cir. 2019).

Environmental groups brought an action against the U.S. Department of Agriculture Wildlife Services (Wildlife Services), alleging that NEPA requires Wildlife Services to prepare an Environmental Impact Statement and ...

Yesterday, the U.S. Supreme Court denied certiorari in California Sea Urchin Commission v. Combs (Combs), Docket No. 17-1636, an appeal from a Ninth Circuit decision regarding endangered Southern sea otters (Enhydra lutris nereis) and deference to the decisions of the U.S. Fish and Wildlife Service (Service).  As we reported here last month, the case was seen as a potential vehicle for the Court to take up the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s interpretation of an ambiguous statute so long as that interpretation is ...

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the ...

On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA).

On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries.  Environmental groups brought claims against the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and the National Environmental ...

In a three-page memorandum decision, the United States Court of Appeals for the Ninth Circuit dismissed Wild Equity and other groups' appeal from a lower court decision, dismissing as moot a lawsuit alleging that the City and County of San Francisco ("San Francisco") violated the Endangered Species Act’s take prohibition as a consequence of its continuing operations of the Sharp Park Golf Course. (2015 U.S. App. LEXIS 4854 [pdf].)

The lower court dismissed the action on the grounds that the Fish and Wildlife Service issued a biological opinion and incidental take statement ...

As numerous news outlets reported, see L.A. Times and S.F. Chronicle, the United States Court of Appeals for the Ninth Circuit issued a decision reversing a lower court and affirming a biological opinion and reasonable and prudent alternative issued by the National Marine Fisheries Service with respect to the continuing operation of the Central Valley Project by the Bureau of Reclamation and the State Water Project by the California Department of Water Resources.  The Projects provide water to more than 20 million Californians.

The panel's decision relies heavily on a prior ...

On November 17, the U.S. Supreme Court denied the petition for writ of certiorari filed by Glenn Colusa Irrigation District and others seeking to overturn a decision by the United States Court of Appeals for the Ninth Circuit (en banc) holding that the Bureau of Reclamation’s decision to renew water contracts with senior water rights holders is subject to consultation under section 7(a)(2) of the Endangered Species Act.  Our prior post regarding the petition is available here.

E&E reporter Jeremy Jacobs wrote in Greenwire today that the Supreme Court "left in place an ...