Endangered Species Law & Policy

On February 7, the Fish and Wildlife Service issued a press release announcing a new final rule designating critical habitat for the arroyo toad (Anaxyrus californicus).  The rule (pdf) designates about 98,366 acres of land as critical habitat ranging from portions of Santa Barbara County in the north to San Diego County in the south.  By comparison, the prior final rule, available here (pdf), designated about 11,695 acres of land as critical habitat.  The Service excluded approximately 11,697 acres of land subject to final habitat conservation plans, tribal lands ...

In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population.  Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.

The ...

The February 2011 edition of Environmental Management includes an article I co-authored with Dr. Dennis Murphy entitled, The Route to Best Science in Implementation of the Endangered Species Act’s Consultation Mandate: The Benefits of Structured Effects Analysis.  The principle purpose of the article is to facilitate the development of rigorous effects analyses under the consultation provisions in section 7(a)(2) of the Endangered Species Act (ESA).  In the article, we "assess effects analysis as a tool for using best science to guide agency decisions under the Act ...

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance ...

The Fish and Wildlife Service (Service) is facing a court-ordered January 31 deadline to decide whether to propose recommending the Pacific walrus for the endangered species list under the Endangered Species Act (ESA). Earlier this month, the federal Marine Mammal Commission (Commission) issued a letter (PDF) to the Service recommending that it list the species as threatened. The Commission, which oversees marine mammal conservation policies carried out by federal regulatory agencies, cited loss of sea ice habitat as the most significant threat to the species’ ...

The U.S. Fish and Wildlife Service (Service) recently announced that it will conduct in-depth status reviews for six California species currently listed as threatened or endangered under the Endangered Species Act (ESA). The Service published (PDF) a 90-day finding in the Federal Register on January 19, 2011, concluding that a petition filed by Pacific Legal Foundation presented substantial scientific information indicating that delisting or reclassifying the species was warranted.

Pacific Legal Foundation petitioned the Service to delist the Eureka Valley evening ...

The Fish and Wildlife Service (Service) announced this week that it has opened a 30-day comment period on revisions to the proposed critical habitat designation for the Sonoma County Distinct Population Segment of the California tiger salamander, and the associated draft economic analysis of the revised proposal. The Service previously revised the proposed critical habitat designation in August 2009 -- after originally proposing the designation in August 2005 -- based on a settlement agreement on the August 2005 proposal. In this week’s notice of availability (PDF ...

On January 18, 2011, after slightly more than a quarter-century of protection, the U.S. Fish & Wildlife Service ("Service") announced that it will be removing the Maguire daisy (Erigeron maguirei) from the list of threatened and endangered species.  The Service recently concluded that the daisy population, which in 1985 consisted of only seven known plants, is presently comprised of over 162,000 individual plants, and "no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973."  The Maguire daisy is just the 21st species that ...

On January 8, 2011, a federal district court overruled (pdf) a 2008 decision by the U.S. Fish and Wildlife Service (Service) to reduce the acreage of critical habitat designated for the San Bernardino kangaroo rat from 33,290 acres to 7,779 acres. The Service had initially designated the 33,290 acres in 2002, but decreased the amount (pdf) in 2008 after a lawsuit successfully challenged the designation. The district court’s ruling reinstates the area designated as critical habitat in the 2002 rule (pdf) in San Bernardino and Riverside counties until a revised designation is ...

On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as ...

Aiming to restore federally-listed species, whose long-term viabilities in the Florida Keys are currently threatened by predation from non-native species and human-subsidized populations of native predators, the Fish and Wildlife Service has prepared a draft Integrated Predator Management Plan/Environmental Assessment (Plan/EA) (PDF), which it made available for public comment today on its website.  The Service claims that predation by the domestic cat and other exotic non-native species has impacted populations of natives species in the Florida Keys Wildlife Refuges ...

On December 14, 2010, the U.S. Fish & Wildlife Service published its final rule (PDF) redesignating critical habitat for the Santa Ana sucker, a small fish species occurring in watershed draining the San Gabriel and San Bernardino mountains of southern California.  The Final Rule designates a total of 9,931 acres across San Bernardino, Riverside, Los Angeles, and Orange counties and is comprised of 7,097 acres in the Santa Ana River, 1,000 acres in the San Gabriel River, and 1,233 acres in Big Tujunga Creek.  The Final Rule increased the sucker’s net critical habitat by ...

On December 14, 2010, the United States District Court for the Eastern District of California issued a 225 page decision (pdf) granting in part plaintiffs' motions for summary judgment in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. Dec. 14, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and ...

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since ...

Introduced by eight U.S. Representatives, HR 6485 (.pdf) provides that the inclusion of the gray wolf on any list of endangered or threatened species under Section 4 of the Endangered Species Act (ESA) will have no force or effect. Titled the State Sovereignty Wildlife Management Act, the bill is one of several (see SB 3825 (.pdf) and SB 3864 (.pdf)) that has been introduced over the past few months with the goal of returning wolf management to the states. The proposed legislation is meant to improve the balance of both wolf and prey populations by allowing individual states to develop ...

On November 24, 2010, the U.S. Fish and Wildlife Service announced a final rule (PDF) designating 187,157 square miles of on- and off-shore habitat in northern Alaska as critical habitat for two populations of polar bear listed as threatened under the Endangered Species Act. 

The Service originally proposed to designate 200,541 square miles of critical habitat.  However, the final designation removed land that turned out to lie beyond the U.S. territorial waters, five U.S. Air Force (USAF) radar sites, the Native communities of Barrow and Kaktovik, and all existing man-made ...

On November 30, 2010, the United States Fish and Wildlife Service ("Service") designated approximately 783 acres of land in Riverside and San Diego Counties, California, as critical habitat for the plant San Diego ambrosia (Ambrosia pumila).  This is approximately 329 acres less than the Service had previously proposed.  The Service's designation excluded approximately 118 acres of critical habitat that fell within the Western Riverside County Multiple Species Habitat Conservation Plan.  In its final economic analysis, the ...

On November 23, 2010, in Humane Society of the United States v. Locke, the U.S. Court of Appeals for the Ninth Circuit held (pdf) that NMFS violated the Marine Mammal Protection Act (MMPA) by failing to adequately explain its finding that sea lions are having a significant negative impact on the decline or recovery of salmonid species listed under the Endangered Species Act (ESA) in the Columbia River. The ruling invalidated NMFS’s decision authorizing the states of Washington, Oregon, and Idaho to lethally remove California sea lions from the Bonneville Dam area. The 2008 decision

Following the release of an incomplete draft of the Bay Delta Conservation Plan (BDCP), numerous stakeholders issued statements outlining their perspective on the status of the planning effort.  Statements were issued by a number of public water agencies that have provided most of the funding for the planning effort to date including Westlands Water District (pdf), Kern County Water Agency (pdf), Metropolitan Water District (pdf), and the State Water Contractors (pdf).  They were also released by other interested stakeholders, such as the Bay Institute and Environmental ...

The Bay Delta Conservation Plan (BDCP) is a long-term conservation strategy designed to improve the status of species and natural communities covered by the plan and provide the basis for the issuance of endangered species permits for the operation of the state and federal water projects in California.  For a number of years, federal and state agencies, numerous public water agencies, and non-governmental organizations have worked to develop the BDCP.  On November 18, an incomplete draft of the BDCP was released to the public amid controversy as reported by numerous news outlets ...

The National Research Council (NRC) announced the formation of an ad hoc panel to review the Bay Delta Conservation Plan (BDCP).  The NRC explains that "[t]he panel’s review will be related to but be conducted separately from the on-going, more broadly focused NRC study entitled 'Sustainable Water and Environmental Management in the California Bay-Delta.'"  Provisional appointments to the panel, including Dr. Henry J. Vaux of the University of California, Berkeley as Chair, are provided here.  There is a 20 day public comment period on the appointees that commenced on ...

The Fish and Wildlife Service recently published an updated list of plant and animal species native to the United States that are candidates for listing as threatened or endangered species under the Endangered Species Act.  The list, referred to as a Candidate Notice of Review or CNOR, is published periodically by the Service.  A press release announcing the release of the CNOR is available here.  Each species on the list is assigned a listing priority number (or LPN) based on its status and threats.  The CNOR includes five new candidates, changes the LPN for four existing candidates, and ...

In 2008, the National Oceanic & Atmospheric Administration ("NOAA") authorized Washington, Oregon, and Idaho to "lethally remove" individual sea lions that congregate below the Bonneville Dam and continue to eat listed salmon and steelhead after non-lethal deterrence methods prove unsuccessful.  Under the current program, after a sea lion is identified and trapped it is either transported to a new location or euthanized.  Earlier this month, however, a task force convened at NOAA's request recommended that the controversial program ...

On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management ...

In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.

In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species."  As previously discussed here, the Fish & ...

On November 2, 2010, the U.S. Fish and Wildlife Service (FWS) listed (PDF) the Georgia pigtoe mussel, the interrupted rocksnail and the rough hornsnail as endangered under the Endangered Species Act (ESA) and designated 160 miles of stream and river channels as critical habitat for the three species in Georgia, Alabama and Tennessee.
The listing followed FWS’s determination that the species have experienced a significant curtailment in their freshwater habitats. FWS attributes the habitat loss to fragmentation and isolation of free-flowing rivers and tributaries, as well as ...

On October 18, 2010, Idaho Governor Butch Otter announced the State of Idaho would no longer manage wolves as a designated agent under the Endangered Species Act.  According to the Idaho Department of Fish and Game website, a January 2006 agreement between Idaho and the U.S. Department of the Interior designated the State as an agent for day-to-day wolf management for the Fish and Wildlife Service, but efforts to renew the agreement were unsuccessful.  In response to the Governor's action, the Service issued a press release (pdf) indicating it would once again be the lead agency for ...

The U.S. Fish and Wildlife Service (Service) published a proposed rule (PDF) this week to reclassify the spikedace and loach minnows from threatened to endangered under the federal Endangered Species Act (ESA). The proposed rule also designates approximately 796 miles of streams and rivers in central and eastern Arizona and western New Mexico as critical habitat for the two fish.

Both the spikedace and the loach minnow are small fish that measure fewer than three inches in length. They inhabit shallow water in perennial streams. According to the Service, prolonged drought ...

The National Marine Fisheries Service (NMFS) has denied protection for spotted seal populations in Alaskan waters.   NMFS did, however, formalize protection for smaller populations of spotted seals in Liaodong Bay, China and Peter the Great Bay, Russia.  This region is home to a population of approximately 3,300 seals.

On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species.   See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).

The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline.  In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.

Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.

Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened.  If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear.  Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.

The environmental plaintiffs have also challenged the validity of the 4(d) rule itself.  Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.

On October 19, 2010 the San Francisco Superior Court issued an order requiring the California Fish and Game Commission (Commission) to reconsider its determination that the American pika is not threatened with extinction.  Center for Biological Diversity v. California Fish & Game Comm'n, No. CPF-090509927 (San Francisco Superior Court).

In 2008, the Center for Biological Diversity (CBD) filed a petition to list the pika as threatened under the California Endangered Species Act (CESA).  CBD argues that the pika is threatened with extinction because climate change in ...

On July 21, 2010, the United States District Court for the Middle District of Florida ordered the dismissal of an Endangered Species Act ("ESA") challenge brought by no less than three states, six cities, and a host of local agencies (collectively, "Plaintiffs"), holding that the determination of the U.S. Fish & Wildlife Service ("Service") was entitled to deference. 

The multi-district litigation, which also included a claim under the National Environmental Policy Act, alleged that the 2008 Biological Opinion issued by the Service for the U.S. Army Corps of ...

According to an article published in the Wall Street Journal this week, the Bay Delta Conservation Plan will be subject to further delays that will preclude the planned released of a draft in November 2010.  The Bay Delta Conservation Plan (BDCP) is intended to service as a Habitat Conservation Plan under the federal Endangered Species Act and Natural Communities Conservation Plan under the California Fish and Game Code.  If approved, it would provide authorizations for operation of the Central Valley Project and State Water Project, which provide water to approximately 25 million ...

The U.S. Fish and Wildlife Service (Service) announced this week the final rule for the revised 2005 critical habitat designation for the bull trout, a threatened species under the Endangered Species Act. The 2005 critical habitat designation had been struck down by a federal court last year after an inspector general’s report found improper political influence during the rulemaking process.

The final rule, which will become effective November 17, 2010, identifies 32 critical habitat units on 3,500 water body segments across five states.  Approximately 18,975 miles of ...

The Fish and Wildlife Service issued a final rule (pdf) designating critical habitat for spreading navarretia (Navarretia fossalis), a plant species native to southern California.  The rule designates approximately 6,720 acres of land as critical habitat for the species in five southern California counties: Los Angeles, Riverside, San Diego, San Luis Obispo, and Ventura.  In a previous rule issued in 2005, the Service had designated approximately 652 acres as critical habitat for the species.  The Center for Biological Diversity filed a lawsuit against the Service in the United ...

In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule (PDF) effective October 28, 2010 listing the African Penguin as "endangered" under the Endangered Species Act.  Unlike its prior listing decision for five other species of penguins, in this instance, the Fish and Wildlife Service has determined that climate change contributes to the threats facing the species "through rising sea levels, increasing sea surface temperatures, declines in upwelling intensities, predicted increases in frequency and ...

The Fish and Wildlife Service (Service) announced yesterday that the Sacramento splittail, a fish endemic to California's Central Valley, does not warrant protection under the Endangered Species Act, stating that the best available science shows no recent decline in the overall abundance of the species nor threats that rise to the level of being significant to the splittail at the population level.

This decision marks the conclusion of a seven year controversy between politicians and scientists that began when the Service removed the fish from the threatened species list ...

On Wednesday, September 22nd, Sens. Mike Crapo and Jim Risch of Idaho introduced SB 3825 (.PDF), which would remove the Rocky Mountain gray wolf from the list of threatened or endangered species under the Endangered Species Act (ESA) in the states of Idaho and Montana.  The proposed legislation, titled the State Wolf Management Act of 2010, is intended to turn wolf management over to the states to promote certainty among citizens, hunters, and sheep and cattle ranchers.  The bill was introduced in response to a federal court’s ruling in early August, which put gray wolves in Idaho and ...

On October 1, 2010, the California Fish and Game Commission declared the mountain yellow-legged frog a candidate species (PDF) as defined by section 2068 of the Fish and Game Code.  The Commission accepted the petition to list the mountain yellow-legged frog as endangered at its September 15, 2010 meeting.  The Center for Biological Diversity previously submitted (PDF) a petition to the Commission to list the mountain yellow-legged frog as endangered on January 27, 2010.  The Commission transmitted the petition to the California Department of Fish and Game for review.

The ...

The burrowing owl (pdf) is a species broadly distributed in the western United States that also occupies other parts of the continental United States as well as Central and South America.  The species is resident in much of the State of California.  Populations of the species have declined in certain areas of the State over time, but the population in Imperial County increased with the expansion of agriculture in the region over the past century.  It was recently reported that the Imperial County population, which was as high as 5600 pairs in the past decade, totaled less than 4900 pairs in ...

On Monday, September 27, 2010, the U.S. Fish and Wildlife Service issued its determination that the Gunnison sage-grouse warrants listing under the Endangered Species Act, but that proposing that it be listed as threatened or endangered be postponed while the Service addresses the needs of higher priority species.

Historically, the Gunnison sage-grouse occupied southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona.  But according to the Fish and Wildlife Service, its range has been reduced to seven separate populations in southwestern ...

Last week, a man in southeast Alaska pleaded guilty to violating the Endangered Species Act (ESA) by twice intentionally ramming the boat he was operating into humpback whales, a listed species under the Act.  Federal prosecutors charged Kevin Carle with knowingly harassing, pursuing and harming whales, a violation that resulted in two years of probation and a $1,025 fine, reports the Juneau Empire.  Carle is now required to participate in an ESA Awareness program and must notify a probation officer if hired as a boat operator.

While in both instances Carle intentionally veered ...

Recently, a number of news outlets reported that the population of the palila (Loxioides bailleui), a Hawaiian songbird that the Fish and Wildlife Service listed as endangered in 1967 under the predecessor to the 1973 Endangered Species Act (ESA), has decline dramatically in recent years according to surveys conducted by the U.S. Geological Survey and other entities.  In a five year status review of the species (pdf), the Fish and Wildlife Service previously identified the population decline.

From 2003 to 2007, the estimated number of palila on the southwestern slope of Mauna Kea ...

Two statewide snowmobile associations challenged the Fish and Wildlife Service's 2009 final rule designating critical habitat for the contiguous United States distinct population segment of the Canada lynx on the grounds the Service violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).  In an order (PDF) dated September 10, 2010, the United States District Court for the District of Wyoming rejected plaintiffs' NEPA claims but concurred with plaintiffs that certain lands were designated as critical habitat in the final rule due to the ...

As we previously reported, representatives of the Federal government asked the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  In a letter (PDF) dated September 10, 2010 and addressed to representatives of the Departments of the Interior and Commerce, the National Research Council agreed to provide a "short report" assessing the adequacy of the use of science and adaptive management in ...

The Service released a draft Revised Recovery Plan (PDF) for the northern spotted owl dated September 8, 2010.  The species, which inhabits portions of California, Oregon, and Washington, was listed as threatened in 1990.  A chronology of regulatory actions taken by the Service with respect to the northern spotted owl is available here (PDF).  According to a news release (PDF) issued by the Service, "[t]he draft revision is not an overhaul of the existing recovery plan but includes significant refinements based on scientific and technological advancements, especially related to ...

The U.S. Court of Appeals for the Ninth Circuit amended an opinion it filed earlier this year in Butte Environmental Council v. U.S. Army Corps of Engineers, which we wrote about here.  The case concerns a challenge to the Fish and Wildlife Service’s (Service) finding that a proposed business park would not adversely modify the critical habitat of three listed species under the Endangered Species Act (ESA). While the Ninth Circuit did not change its holding from the June opinion (PDF), it did clarify previous dicta concerning the Service’s analysis of adverse modification ...

The Ninth Circuit issued a decision (PDF) recently in which it held that the removal of an endangered plant from privately-owned waters of the United States is not a violation of the Endangered Species Act (ESA). Section 9(a)(2)(B) of the ESA makes it unlawful to remove and reduce to possession any [endangered species of plant] from areas under federal jurisdiction. The court rejected plaintiffs’ argument that the term areas under federal jurisdiction includes areas that qualify as wetlands and other waters of the United States under the Clean Water Act. The decision is important ...

The United States Court of Appeals for the Tenth Circuit affirmed (PDF) a lower court decision denying a petition for review submitted by Forest Guardians challenging the decision of the Fish and Wildlife Service (Service) to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons into portions of southern New Mexico. The species was listed (PDF) as endangered in 1986 because it was believed extirpated from its historic range of portions of Arizona, New Mexico, and Texas in the United States though it persisted in northern Mexico. In 2001 ...