Endangered Species Law & Policy

This week, the U.S. Fish and Wildlife Service (USFWS) issued three separate notices in the Federal Register concerning the agency’s 12-month findings on a number of petitions to list various wildlife and plants under the Endangered Species Act (ESA).

First, the USFWS announced a positive 12-month finding on a petition to list the Peñasco least chipmunk (Neotamias minimus atristriatus), a small mammal from New Mexico.  The USFWS proposes to list the Peñasco least chipmunk as an endangered species under the ESA and to designate approximately 6,574 acres of land as critical ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

On June 4, 2021, the Biden administration announced its intent to rescind or revise several implementing regulations for the Endangered Species Act (ESA) finalized under the prior administration. The U.S. Fish and Wildlife Service (Service) has not yet published these proposed rules in the Federal Register, nor has the Service provided the exact dates when it intends to publish the proposed rules.

In its announcement, the Service indicates its intent to rescind regulations governing how the Service conducts critical habitat exclusion analyses under ESA section 4(b)(2) and how ...

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 ...

In a per curiam decision, the United States Court of Appeals for the D.C. Circuit dismissed the Center for Biological Diversity’s (CBD) challenge to the Fish and Wildlife Service’s (Service) process for assessing the status of species to inform regulatory decisions with respect to those species.  That process, referred to as species status assessment (SSA), is akin to a biological risk assessment for the target species.  It has been developed by the Service over the past several years and provides a more structured approach to assessing listing, delisting, uplisting, and ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

On May 5, 2021, the U.S. Fish and Wildlife Service (“USFWS”) published its updated collision risk model (“CRM”) for bald and golden eagles at wind energy facilities.  The CRM is a complex Bayesian model the USFWS has endorsed to predict eagle fatalities at wind energy facilities seeking eagle incidental take authorization under the Bald and Golden Eagle Protection Act (“BGEPA”).  The USFWS previously published the proposed updates to CRM for public comment on two occasions, seeking input on three alternatives: (1) Use updated species-specific model inputs and use the ...

On January 7, 2021, U.S. Fish and Wildlife Service (USFWS) published a final rule limiting the scope of the Migratory Bird Treaty Act (MBTA)’s prohibition on the take of migratory birds. The new rule excludes incidental take, meaning bird mortality that results from an action but is not the purpose of that action. 

This rule is the culmination of Trump Administration efforts that began shortly after it took office to reverse prior agency policy and limit the scope of the MBTA. The rule does not take effect until February 6, 2021 and so may be suspended by the incoming Biden ...

On December 17, 2020 the U.S. Fish and Wildlife Service (“USFWS”) published its 12-month finding that listing of the monarch butterfly (Danaus plexippus plexippus) is warranted but precluded by higher priority actions. With this finding, the monarch becomes a candidate species with a listing priority designation of “8.”  An “8” indicates the magnitude of threats to the monarch is moderate to low and those threats are imminent. In the announcement, the USFWS notes that 161 other species are currently prioritized above the monarch for listing consideration. Each year ...

On November 19, 2020, in a call back to its criminal lawsuit against Joseph “Tiger King” Maldonado-Passage, the U.S. Department of Justice filed a civil lawsuit against the husband and wife team who took over the wildlife park that was front and center throughout the Netflix hit series Tiger King – Jeffrey and Lauren Lowe. Unlike the prior lawsuit against Mr. Maldonado-Passage (previously covered here), the lawsuit against the Lowes does not seek jail time, nor does it seek damages. Instead, the lawsuit asks the U.S. District Court for the Eastern District of Oklahoma to (1 ...

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 ...

The California Fish and Game Commission deferred the decision on whether to make the western Joshua tree a candidate for listing to a special meeting in September 2020. In a hearing on August 20, 2020, the Commission heard a wide variety of perspectives on whether listing the species may be warranted. The California Department of Fish and Wildlife’s 90-day evaluation recommended a “may be warranted” finding but at the hearing Director Bonham indicated he was open to deferring the decision in order to work with the stakeholders ... 

While section 9 of the Endangered Species Act (ESA) generally prohibits the “taking” of an endangered species, under section 10 of the ESA the U.S. Fish and Wildlife Service (Service) may issue a permit exempting an activity from the take prohibition if the take is for scientific purposes or to enhance the propagation or survival of an endangered species. Under the authority provided by section 10, the Service established the Captive Bred Wildlife permitting program (Program). The Program permits a registrant to export, import, deliver, receive, carry, sell, transport, and ship an endangered species if such activity is to enhance the propagation or survival of the species.

In the early part of this century the Phoenix Herpetological Society, Inc. (Society) applied to and was registered under the Program for certain species. Over the years the Society applied for various amendments to its registration. Some of these amendments were granted, and some were not.

In February 2018, the Society applied to amend its registration to include the Komodo dragon (Varanus komodoensis) ...

The sweeping and rapid ascent to popularity of Netflix Inc.'s "Tiger King" documentary series has fueled new interest in two congressional bills that stalled in committee last year, and has drawn public attention to a quirk of the Endangered Species Act, or ESA.

I recently authored the article, "'Tiger King' Shines Light on an Endangered Species Act Quirk" for Law360. This piece examines ...

According to a handful of environmental groups, the answer is a definitive yes. And after the U.S. Fish & Wildlife Service (“FWS”) issued a 90-day finding concluding in the alternative, earlier this week three environmental groups decided to take FWS to court. The lawsuit was filed by the Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project. According to the press release issued by one of the environmental groups, FWS “applied the wrong evidentiary standard, and disregarded evidence of factors that imperil the unique and distinct subpopulations of ...

Today, the U.S. Senate confirmed Aurelia Skipwith as the Director of the U.S. Fish and Wildlife Service (USFWS) by a vote of 52-39.  Ms. Skipwith’s confirmation fell mostly along party lines, with three Democratic Senators joining Republicans in approving the nomination.  With Ms. Skipwith’s confirmation, the USFWS will have its first Director of the USFWS since the beginning of the Trump Administration.

Prior to her confirmation, Ms. Skipwith served as the Interior Department’s Deputy Assistant Secretary for Fish, Wildlife and Parks. She is a co-founder and former general ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States ...

The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach ...

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (Service) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has recovered, including the number of established populations that would make the ...

On May 22, 2019, the U.S. Fish and Wildlife Service (FWS) announced a proposal to list two intriguing North Carolina aquatic species under the Endangered Species Act (ESA). The FWS was spurred to act in part by a 2010 petition and subsequent litigation from environmental organizations to list over 400 aquatic species found in the southeastern United States. The two species the agency deems as needing protection in this proposed rule are the Carolina madtom (Noturus furiosus), a poisonous catfish, and the Neuse River waterdog (Necturus lewisi), a freshwater salamander.

The Carolina ...

On May 3, 2019, the U.S. Fish and Wildlife Service (Service) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (ESA) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year ...

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...

On November 21, 2018, the U.S. Fish and Wildlife Service (Service) published a final rule listing the candy darter (Estheostoma osburni) as endangered and proposing critical habitat for the species.  The candy darter is a small, freshwater fish species native to Virginia and West Virginia.  The Service’s announcement finalizes its proposed rule to list the candy darter, which was published on October 4, 2017, with one significant difference – the Service originally proposed to list the candy darter as threatened, but the final rule lists the candy darter as endangered.

The candy ...

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 Monday, June 18, 2018, the U.S. Fish and Wildlife Service (FWS) announced that it has initiated five year status reviews for fifty species in California, Nevada, and the Klamath Basin of Oregon, pursuant to the Endangered Species Act (ESA).  Included among the species whose ESA listing status is being reviewed are 19 animal species, four of which are currently listed as threatened, while the remaining 14 are currently listed as endangered.  Additionally, the FWS is reviewing thirty-one plant species.

As part of its review, FWS will be accepting new information pertinent to the ...

Today, the U.S. Fish and Wildlife Service (Service) finalized its reclassification of the Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii), a small cactus found in Texas, downlisting the species from endangered to threatened under the Endangered Species Act (ESA).

As previously reported here, the Service concluded that downlisting the cactus was warranted given an increase in the number of observed individuals. While only 200 cactuses were known when the species was listed as endangered in 1979, the Service now estimates there are more than 3,300 ...

On April 3, 2018, the U.S. Fish and Wildlife Service (Service) published a final to rule listing the yellow lance mussel (Elliptio lanceolata) as threatened under the Endangered Species Act (ESA).  The final rule states that only seven populations of this freshwater mussel remain, all of which are located in Maryland, Virginia, and North Carolina.  The listing was prompted by a mega-petition filed by the Center for Biological Diversity and several other environmental organizations in 2010 that included the mussel.  In September 2015, after litigation had been filed regarding the ...

On March 16, 2018, the U.S. Fish & Wildlife Service (FWS) announced the withdrawal of its 2016 proposed rule to list San Fernando Valley spineflower (Chorizanthe parryi var. fernandina), a southern California plant species, as a threatened species under the Endangered Species Act (ESA).  The spineflower’s conservation has been one component of the long-standing conflict over the development of Newhall Ranch in northern Los Angeles County, since its discovery on the property in 2000.

According to FWS, the spineflower no longer meets the statutory definition of a threatened or ...

On February 27, 2018, the U.S. Fish and Wildlife Service (FWS) finalized a regulation removing Eureka Valley evening-primrose (Oenothera californica ssp. eurekensis) from the Federal List of Endangered and Threatened Plants.  The delisting, originally proposed in 2014, is based on the elimination of threats to the subspecies, accomplished largely as a result of the 1994 designation and ongoing management of its dune habitat as federal wilderness within Death Valley National Park.  The National Park Service manages the federal wilderness area under the Park Service’s Organic ...

On January 22, 2018, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71.  Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service) designating critical habitat for the dusky gopher frog (Rana sevosa) and including areas within critical habitat that the frog could not currently inhabit.

The dusky gopher frog spends most of its life underground in open-canopied pine forests.  ...

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 ...

As 2018 approaches, the U.S. Fish and Wildlife Service (Service) made a few announcements that will likely impact the list of threatened and endangered species.  In these last 11 days of 2017, the Service announced 90-day findings on petitions to list or reclassify five species, and 12-month findings on petitions to list or de-list two species under the ESA.

• On December 20, 2017, the Service announced 90-day findings on petitions for five separate species. The Service found that the petitioned actions for each of the five species may be warranted, based on the information presented in ...

In the Fall 2017 publication of the Unified Agenda of the Office of Information and Regulatory Affairs, the Department of the Interior announced its intent to revise the U.S. Fish and Wildlife Service’s regulations governing interagency cooperation and exceptions to the conservation of endangered and threatened species of fish, wildlife, and plants. In a separate announcement in the same publication, the Department of the Interior stated that it intends to revise regulations governing the listing of endangered and threatened species and the designation of critical ...

On Thursday, October 5, 2017, the U.S. Fish & Wildlife Service (Service) announced 12-month not warranted findings on petitions to list 25 species as endangered or threatened under the Endangered Species Act (ESA).  It is likely that the Service’s not warranted findings represent the Trump administration’s departure from the previous administration’s  90-day determinations wherein the Service found that the petitions contain substantial information that listing may be warranted.  For over half of the 25 species, the not warranted findings satisfy the terms of various ...

On Friday, September 29, 2017, the U.S. Fish & Wildlife Service (Service) announced its withdrawal of the proposed rule listing the Kenk’s amphipod (Stygobromus kenki), an aquatic crustacean, as an endangered species under the Endangered Species Act (ESA).  The Service originally proposed to list the amphipod, which occurs in the District of Columbia, Virginia, and Maryland, in September 2016 due to the impacts of water quality, water quantity, and other collateral impacts of urbanization near the species’ habitat.  In support of its decision to withdraw the proposed ...

On September 20, 2017, the U.S. Fish and Wildlife Service (USFWS) listed three separate species under the Endangered Species Act ("ESA").  USFWS listed the Sonoyta mud turtle (Kinosternon sonoriense) as endangered, and the 'I'iwi (Drepanis coccinea) and pearl darter (Percina aurora) as threatened species under the ESA.  Despite listing all three species, the USFWS deferred designating critical habitat for the three species.  The three listing decisions, all of which were compelled by settlements that the USFWS entered into during the Obama administration, are summarized below.

On October 5, 2016, the U.S. Fish and Wildlife Service (Service) listed a beetle species as endangered, a fish species as threatened, and designated critical habitat for the fish species pursuant to the Endangered Species Act (ESA).

The Service listed the Miami tiger beetle (Cicindelidia floridana), which occurs in Miami-Dade County, Florida, as endangered under the ESA.  According to the Service, the decline in the species is due to the impact of habitat loss, degradation, and fragmentation, the inadequacy of existing regulatory protections, and the beetle’s relatively ...

In a notice published on January 15, 2016, the U.S. Fish and Wildlife Service (Service) announced a draft methodology for prioritizing species status reviews and 12-month findings on petitions for listing species under the Endangered Species Act (ESA).  81 Fed. Reg. 2,229 (Jan. 15, 2016).  The Service currently has over 500 unresolved species status reviews and associated 12-month findings on petitions for listing, and intends to use the changes to its methods to set priorities on how and when those unresolved petitions will be addressed.  The Service’s draft methodology will not ...

Under the Endangered Species Act (ESA), a citizen plaintiff is required to provide a notice no less than 60-days before filing certain types of lawsuits against the federal government.  For example, a 60-day notice is required before a citizen plaintiff may file a lawsuit seeking to compel the U.S. Fish and Wildlife Service (Service) to issue a decision on an ESA listing petition.  The primary purpose of the 60-day notice is to give the federal government an opportunity to review and, if necessary, correct the alleged ESA violation before incurring the cost of ...

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The murrelet is listed as a threatened species under the Endangered Species Act (ESA).  The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.  61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.

The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District ...

On July 6, 2015, the U.S. Fish & Wildlife Service (Service) published a Draft Polar Bear (Ursus maritimus) Conservation Management Plan (Polar Bear Plan).  The Polar Bear Plan identifies the continuing loss of sea-ice habitat as the single greatest threat to the species’ continued survival, and the global reduction of greenhouse gases (GHG) as the most important action to halt and reverse this trend.  The Polar Bear Plan also addresses several high priority actions designed to maintain the polar bear population, including reducing risks from spills, protecting ...