Endangered Species Law & Policy

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 of Columbia’s decision in American Forest Resource Council (AFRC) v. Ashe, 946 F. Supp. 2d 1 (D. D.C. 2013), aff’d 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015).  In that case, AFRC sought to compel the Service to delist the murrelet and vacate its critical habitat designation.  The Court granted in part AFRC’s motion for summary judgment.  Following the decision, the Service voluntarily requested that the matter be remanded, without vacatur, so that the Service could undertake a review of the murrelet’s designated critical habitat, taking into account all of the scientific information developed since the murrelet’s last status review in 2011.

In 1996, the Service designated approximately 3,887,800 acres of critical habitat in California, Oregon and Washington.  61 Fed. Reg. 26,256.  When the Service reexamined this determination in 2011, the Service amended the prior critical habitat determination to include only 3,697,100 acres of critical habitat, composed of 37 subunits in Washington, 33 in Oregon, and 31 in California.  76 Fed. Reg. 61,599.  The current proposal is to reaffirm the 2011 critical habitat determination.

The proposed rule states that the Service is accepting comments on its proposal until October 26, 2015.