Endangered Species Law & Policy

On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher ...

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) announced the finalization of regulations governing implementation of various aspects of the Endangered Species Act (ESA). Among those regulations were rules setting forth how the Services and other federal agencies were to consult on potential impacts of federal activities on ESA-listed species and designated critical habitat.  The new rules were to go into effect on September 26, 2019.  Today, the Services announced that the effective date for the interagency consultation ...

On February 27, 2017, the California Supreme Court reversed a Court of Appeal decision dismissing a petition for writ of mandate regarding the California Fish and Game Commission’s (Commission) rejection of a petition to delist the population of coho salmon (Oncorhynchus kisutch) south of San Francisco under the California Endangered Species Act (CESA).  Central Coast Forest Assoc. v. Fish and Game Comm’n, Case No. S208181, 2017 Cal. LEXIS 1540 (Cal. Feb. 27, 2017).  The California Supreme Court held that the Court of Appeal erred by failing to consider the merits of the ...

On February 29, 2016, the U.S. District Court for the Western District of Texas rejected the U.S. Fish and Wildlife Service's (Service) request to reinstate federal Endangered Species Act (ESA) protections for the lesser prairie chicken (Tympanuchus pallidicinctus).  Permian Basin Petrol. Ass 'n v. Dep 't of the Interior, No. 7:14-CV-50 (W.D. Tex. Feb. 29, 2016.).  In September 2015, the court ruled on a challenge brought by the Permian Basin Petroleum Association and four New Mexico counties and vacated the final rule listing the lesser prairie chicken as threatened under the ESA.  ...

On December 24, 2015, the U.S. Fish and Wildlife Service (Service) released its annual Candidate Notice of Review (CNOR) summarizing the status of species that qualify as candidates for listing under the Endangered Species Act (ESA).  The 2015 CNOR identifies all species designated as candidates and explains the changes to the candidate list from the 2014 CNOR.  The Service assigns each candidate species a listing priority number (LPN) indicating the magnitude of the threat to a species’ continued existence (with one being the highest priority, and twelve being the lowest ...

On March 3, 2015, the National Marine Fisheries Service (NMFS) issued two Federal Register notices – a 90-day finding on a petition (pdf) to list the Common thresher shark (Alopias vulpinus) as either threatened or endangered, and a proposed rule to list  (pdf) the Tanzanian distinct population segment (DPS) of the African Coelacanth (Latimeria chalumnae) as a threatened species.

On August 26, 2014, Friends of Animals petitioned NMFS to list the Common thresher shark as endangered or threatened under the Endangered Species Act (ESA), or, in the alternative, to delineate six ...

On February 10, 2015, the National Marine Fisheries Service and the National Oceanic Atmospheric Administration ("Services") issued a final rule (pdf) to include captive killer whales in the Southern Resident killer whale distinct population segment (DPS) of killer whales (Orcinus orca). The DPS has been listed as endangered under the federal Endangered Species Act (ESA) since 2005, but the listing excluded whales held in captivity. In January 2013, People for the Ethical Treatment of Animals petitioned the Services to remove the exclusion and extend the protections of ...

On December 5, 2014 the U.S. Fish & Wildlife Service (USFWS) released its Fiscal Year 2014 Threatened and Endangered Species Candidate list.  Under the Endangered Species Act (ESA), when the USFWS either receives a petition from a third party to list a species as threatened or endangered, or when the USFWS decides of its own accord to evaluate a species for listing, it is required to issue a 90 day finding on the potential listing, and then a 12-month finding, followed by a determination on the species' status.  Forty species received final listing decisions this year.  USFWS may delay a ...

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 ...

This morning, the House Committee on Natural Resources is holding a legislative hearing on six proposed amendments to the Endangered Species Act (ESA).  The live video webcast of the hearing can be accessed here.  The six proposed amendments are:

H.R. 1314 - establishing a procedure for approval of certain types of settlements

H.R. 1927 - providing congressional direction for implementation of the ESA 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

H.R. 4256 - requiring the wildlife agencies ...

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 ...

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 ...

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 ...

Yesterday, the House Committee on Natural Resources held a second hearing regarding implementation and impacts of the Endangered Species Act.  Today's hearing was titled: Transparency and Sound Science Gone Extinct?: The impacts of the Obama Administration's Closed-Door Settlement on Endangered Species and People.  In a summary description issued before the hearing, the Committee stated that it anticipated the hearing would "highlight how the lack of data transparency is leading to increased numbers of species being listed and critical habitat being ...

On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys' fees under the Endangered Species Act's fee shifting provision.  See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).

The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of ...

On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana ...

On January 10, 2013, the United States District Court for the District of Alaska issued an order (pdf) vacating the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear after concluding that the Service failed to comply with substantive and procedural requirements in the Endangered Species Act.  Specifically, the district court found that the administrative record produced by the Service failed to contain evidence of the essential "physical or biological features" necessary to justify the designation of two large areas as critical ...

On January 4, 2012, the United States Court of Appeals for the District of Columbia held (pdf) that Safari Club International (Safari Club) lacked standing to intervene as a matter of right in the litigation that resulted in two stipulated judgments establishing procedures and deadlines for reviewing listing and critical habitat determinations for 251 candidate species, thereby affirming the decision of the district court.  (A short discussion of the history leading up to these settlements can be found here and here.) 

The Safari Club asserted that it had a procedural ...

On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species ...

On July 27, 2011, House Natural Resources Committee Chairman Doc Hastings announced that the Committee will "move forward" in the fall to examine the Endangered Species Act (ESA) in an effort to reauthorize the law.  Chairman Hastings issued his statement shortly after the House passed an amendment offered by Rep. Norm Dicks to the FY 2012 Interior Appropriations Bill that restored funding to the ESA's listing program.  The original spending bill would have eliminated funding for the processing of petitions, preparation of 12-month findings, and issuance of final rules ...