Endangered Species Law & Policy

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 August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

On October 24, the U.S. Fish and Wildlife Service (Service) published a final rule listing the Dakota skipper (Hesperia dacotae) as a threatened species and the Poweshiek skipperling (Oarisma poweshiek) as an endangered species under the Endangered Species Act.  The Dakota skipper is found in Minnesota, North Dakota, South Dakota, Manitoba and Sasketchewan, and that the Poweshiek skipperling is found in Michigan, Minnesota, Wisconsin, and Manitoba.  The Service determined that the Dakota skipper is likely to become endangered throughout all of its range within the ...

Yesterday, the U.S. Fish and Wildlife Service (Service) announced that it will re-open the public comment period on its proposal to designate 546,335 acres of critical habitat for the western population of yellow-billed cuckoo (Coccyzus americanus) in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah and Wyoming.  The announcement came after 17 members of Congress requested that the Service provide additional time for the public to review the proposed critical habitat designation, and two members of Congress publicly criticized the Service's ...

On October 6, the U.S. Fish and Wildlife Service (Service) issued a news release (pdf) announcing its proposal to list the West Coast Distinct Population Segment (West Coast DPS) of fisher (Pekanian pennanti) as threatened under the Federal Endangered Species Act (ESA), in part due to significant threats from illegal marijuana farming. 

The fisher belongs to a family of mammals that includes weasels and otters, and grows to about the size of a large house cat.  The Federal Register notice (pdf) regarding the proposed listing, which was published yesterday, states that the ...

On September 17, 2014, the U.S. Fish and Wildlife Service (Service) withdrew (pdf) its proposal (pdf) to remove the valley elderberry longhorn beetle (Desmocerus californicus dimorphus) from the Federal List of Threatened and Endangered Species.  While this means the beetle will continue to be protected as a threatened species under the Endangered Species Act (ESA), the Service did reduce the area in which the species is presumed to occur.

The beetle was listed as threatened and critical habitat designated, in 1980 (pdf).  Until recently, the beetle’s range was believed to ...

Last week, the United States District Court for the Eastern District of Louisiana upheld the designation of approximately 1,544 acres of privately-owned timber land located in Louisiana as critical habitat for the dusky gopher frog (Rana sevosa), concluding that even though the frog was last spotted on the property in the 1960s and the only known wild populations of the frog are all located in the State of Mississippi, the designation by the U.S. Fish and Wildlife Service (Service) was not arbitrary or capricious.  Markle Interests, LLC v. U.S. Fish and ...

The United States District Court for the Eastern District of California recently signed an order on a stipulation (pdf) in Murphy v. United States Forest Service that bars the Forest Service from proceeding with implementation of the Upper Echo Lake Hazardous Fuels Reduction Project in 2014 (Project), and requires the Forest Service to consult with the U.S. Fish and Wildlife Service regarding the effects of the Project on the endangered Sierra Nevada yellow-legged frog (Rana sierrae) before proceeding further with the Project.

The Forest Service approved the Upper Echo ...

On June 23, 2014, the United States District Court for the District of Columbia affirmed the strict application of the Endangered Species Act's (ESA) pre-litigation notice requirements, dismissing a lawsuit alleging that the U.S. Fish & Wildlife Service (Service) failed to timely act on a number of listing petitions because the violations stated in the pre-litigation notice and complaint did not occur until after the litigation was filed.  Friends of Animals v. Ashe, No. 13-1607 (D.D.C. June 23, 2014).  

Under the ESA, after a listing petition has been filed, the Service is obligated ...

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species.  The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of ...

Getting back into the swing of things, earlier today the U.S. Fish and Wildlife Service determined that the eastern small-footed bat (Myotis leibii) does not warrant listing at this time, and commented on its proposal to list the northern long-eared bat (Myotis septentrionalis) (pdf) as endangered under the Endangered Species Act.  The notice issued by the Service states that the "primary threat to the northern long-eared bat is a disease, white-nose syndrome, which has killed an estimated 5.5 million cave-hibernating bats in the Northeast, Southeast, Midwest and Canada."  ...

As reported earlier today by Emily Yehle of Greenwire, if the U.S. Government fails to avoid a government shutdown before tomorrow, a number of federal agencies, including the U.S. Environmental Protection Agency and U.S. Department of the Interior are planning to "pull the plug on their online presence."  (E&ENewsPM, Sept. 30, 2013).  You may ask, what other impacts will there be as a result of the impending government shutdown?  While, according to the Department of the Interior's website (pdf), as a general matter "Service employees will not continue to work" on court ordered ...

In 2012, the Mill Fire burned almost 30,000 acres in California, destroying large areas of forest, including threatened Northern spotted owl (Strix occidentalis caurina) habitat.  Even after the Mill Fire was finally snuffed out, it continued to have a lasting impact on the environment, as the fire created hazardous conditions along roads and trails used by the public and the National Park Service.  

After preparing an Environmental Assessment and Biological Assessment, on April 23, 2013, the U.S. Forest Service (Forest Service) approved the Mill Fire Salvage ...

Late last month, the United States District Court for the District of Idaho denied preliminary injunctive relief in an Endangered Species Act case against the Fish and Wildlife Service (FWS) and Forest Service, even though it found that "the required rational connection was not made in the [section] 7(d) determination," because declarations submitted to the court after-the-fact provided a rational connection.  See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 4:13-cv-176 (June 26, 2013) (pdf). 

In 2010, FWS issued a biological opinion and incidental ...

On January 2, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule increasing the critical habitat designated for the southwestern willow flycatcher (pdf) (Empidonax traillii extimus).  The flycatcher is a small migratory bird (approximately 6 inches long) that nests in dense riparian habitats along streams, lakesides, and other wetlands.  The Service listed the flycatcher as endangered in 1995, and in 1997 issued an initial critical habitat designation.  Shortly thereafter, however, the New Mexico Cattle Growers' Association filed a lawsuit ...

As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking ...