Posts from October 2011
Posted in Listing

In response to a petition (pdf) from the Pacific Legal Foundation (PLF) to delist the coastal California gnatcatcher (Polioptila californica californica) under the Endangered Species Act, the U.S. Fish and Wildlife Service made a 90-day finding (pdf) that the petition does not present substantial scientific or commercial information to indicate that delisting the species may be warranted.  PLF argued that the coastal California gnatcatcher is not a valid subspecies and should therefore be delisted.  In response, the Service acknowledged "that the taxonomic ...

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Tags: Listing
Posted in Court Decisions

Today, on October 31, 2011, the Supreme Court of the United States denied (pdf) review of a constitutional challenge to water delivery regulations regarding the Central Valley Project and California State Water Project intended to protect the threatened delta smelt. The petition for writ of certiorari was filed by the Pacific Legal Foundation on behalf of Stewart & Jasper Orchards, and asserted that application of the Endangered Species Act (ESA) to the delta smelt, a noncommercial fish that is only found in California, is an unconstitutional exercise of congressional power under ...

The U.S. Court of Appeals for the Ninth Circuit denied (PDF) an emergency motion (PDF) for an injunction pending appeal to the extent the moving parties sought an injunction prior to the court hearing oral arguments, currently scheduled for November 8, 2011.  At issue in the underlying appeal is the constitutionality of a law (Public Law 112-10 section 1713 (Section 1713)) passed by Congress that directs the Secretary of the Interior to reissue a 2009 final rule which removed Endangered Species Act (ESA) protections for all wolves living in the Northern Rocky Mountain Gray Wold ...

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Posted in Conservation

A NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted on Monday to recommend that NOAA Fisheries permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead.  Under the Marine Mammal Protection Act (MMPA), NOAA is charged with protecting marine mammals such as the California sea lion; but, NOAA is also the lead agency responsible for saving Columbia River salmon and steelhead, which are listed under the Endangered Species Act ("ESA").  Since 2002, California ...

Posted in Litigation

On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

In response to a letter from two local congressmen (PDF), Republicans from the Natural Resources Water and Power Subcommittee have scheduled an oversight hearing to examine the U.S. Fish & Wildlife Service’s recent designation of critical habitat for the Santa Ana sucker (Catostomus santaanae).  As reported on this blog, the Service published a final rule (Dec. 14, 2010) designating critical habitat for the Santa Ana sucker, a small fish species occurring in southern California.  The Final Rule designates nearly 10,000 acres in the Santa Ana and San Gabriel rivers and Big Tujunga ...

Posted in Listing

On October 7, 2011, the U.S. Fish and Wildlife Service ("Service") announced that the California state fish, the California golden trout (Oncorhynchus mykiss aguabonita), did not warrant listing under the federal Endangered Species Act because "conservation measures throughout the trout's historic range have done much to protect the species."   

In 2000, Trout Unlimited petitioned the Service to list the California golden trout citing habitat degradation from grazing, hybridization and introgression threats from introduced rainbow trout, predation and ...

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Tags: Listing
Posted in Congress

On October 13, 2011, the Subcommittee on Investigations and Oversight to the Committee on Science, Space, and Technology of the U.S. House of Representatives held a hearing on the nexus of science and policy related to the Endangered Species Act (ESA).  According to a press release issued by the House, the purpose of the hearing was to "highlight how science is used in policy decisions that are made under [the ESA]."  The witnesses at the hearing were:

  • Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service
  • The Honorable Craig Manson, General ...
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Posted in Listing

Last week, the Fish & Wildlife Service (Service) announced a 12-month finding (PDF) that the Mohave ground squirrel (Spermophilus mohavensis) does not warrant protection as a threatened or endangered species under the Endangered Species Act (ESA). The Service’s finding was in response to a petition from the Defenders of Wildlife and a private citizen to list the species as endangered.

In April 2010, the Service issued a finding that concluded the petition presented substantial scientific or commercial information indicating that listing the Mohave ground squirrel may be ...

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Tags: Listing
Posted in Conservation

Proposed revisions (pdf) to the draft Santa Clara Valley Habitat Conservation Plan / Natural Community Conservation Plan (HCP/NCCP) were released last month to address the hundreds of comments received regarding the draft plan, which was issued in December 2010. The draft plan and comment letters are available for viewing here.

The Santa Clara Valley HCP/NCCP is intended to identify conservation and mitigation measures to protect species listed under the federal Endangered Species Act (ESA) and the California Endangered Species Act (CESA), while allowing for orderly ...

Posted in Court Decisions

On September 30, 2011, the United States District Court for the Eastern District of California upheld (pdf) a decision of the National Marine Fisheries Service (NMFS) to approve management measures developed by the Pacific Fisheries Management Council in conjunction with the Council's decision to open the commercial and recreational fishery for Fall-run Chinook salmon in the Central Valley for the 2011 season.  The NMFS decision had been challenged by the San Joaquin River Group Authority, a California joint powers authority made up of member agencies that own or operate ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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