Endangered Species Law & Policy

The last few weeks of 2016 involved several activities relating to the Endangered Species Act (ESA), including the following:

• On December 27, 2016, the U.S. Fish and Wildlife Service (FWS) issued the final ESA Compensatory Mitigation Policy. According to FWS, the new policy addresses permittee-responsible mitigation, conservation banking, in lieu fee programs, and other third-party mitigation mechanisms, and stresses the need to hold all compensatory mitigation mechanisms to equivalent and effective standards.  The Compensatory Mitigation Policy, which we previously ...

On December 15, 2016, the U.S. Fish and Wildlife Service (Service) published a proposed rule to remove the black-capped vireo (Vireo atricapilla) from the list of Endangered and Threatened Species. The Service has concluded that listing is no longer warranted due to the species’ recovery.

The vireo is a small migratory songbird that breeds and nests in south-central Oklahoma, Texas, and the northern states of Mexico, and winters in Mexico’s western coastal states. The species was initially listed as endangered in October 1987 due to various threats, including nest parasitism ...

The Candidate Notice of Review is an annual appraisal by the U.S. Fish and Wildlife Service (Service) of plants and animals that are candidates for Endangered Species Act protection.  A "candidate" species is a species for which there is sufficient information to support a proposal for listing as an endangered or threatened species under the Endangered Species Act, but the formal listing determination is delayed because of higher priority listing actions for other species.  The Candidate Notice of Review, among other things, "summarizes the status and threats ...

Pending before the U.S. Court of Appeals for the Tenth Circuit is the U.S. Fish and Wildlife Service’s (Service) appeal from a district court decision enjoining the Service from releasing Mexican wolves into New Mexico without the requisite state permits. In June 2016, the New Mexico Department of Game and Fish (Department) challenged the Service’s intended release of Mexican wolves into an experimental population within the state, without first obtaining the required permits from the Department.  New Mexico moved for a preliminary injunction, which the U.S. District Court ...

The U.S. Fish and Wildlife Service (Service) recently published a positive 90-day finding on a petition to list the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and three distinct population segments as endangered under the Endangered Species Act ("ESA").  The petition was filed by WildEarth Guardians, the Center for Biological Diversity, and Defenders of Wildlife on September 8, 2016.  The Service will initiate a status review for the Lesser Prairie-Chicken, followed by a determination regarding whether listing is warranted.

The listing petition was submitted ...

The National Marine Fisheries Service (NMFS) recently completed its review of the status of eastern North Pacific harbor seals (Phoca vitulina richardii) in Iliamna Lake, Alaska, a large freshwater lake in Alaska connected to the Bristol Bay region of the Bering Sea.  NMFS concluded (pdf) that the seals do not constitute a species, subspecies, or distinct population segment (DPS) under the Endangered Species Act (ESA), and, thus, listing the harbor seals in Iliamna Lake as threatened or endangered is not warranted.

The Center for Biological Diversity (CDB) submitted a petition to ...

The election of Donald Trump as President, together with Republican majorities in the House and Senate, is likely to lead to important policy changes across a range of issues. While administration of the Endangered Species Act and other federal wildlife laws has not been high profile during the election season, it is an issue area in which we are likely to see big changes.  The five key issues are as follows:

Department heads.  There will be a clean slate of Department heads, including new Secretaries of Commerce and the Interior.  Rumored candidates for Commerce include Chris Christie ...

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program since the program's establishment in 2009.  Programmatic permits may be sought to authorize eagle take that is associated with, but is not the purpose of, an activity if such take is compatible with the preservation of the bald eagle and the golden eagle and if the take is unavoidable even though advanced conservation practices are being implemented.

Alta ...

On November 2, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule adding ten species to the List of Endangered and Threatened Wildlife, and updating the listings of five other species. Of the ten new species added, only one, the Nassau grouper (Epinephelus striatus), occurs in the United States.  The grouper, which is found in Florida, was listed as a threatened species.  The nine other species include three angelshark species (Squatina aculeata, S. oculata, and S. squatina), found in the Mediterranean Sea and eastern Atlantic; three coral species (Cantharellus ...

On October 24, 2016, the United States Court of Appeals for the Ninth Circuit upheld the National Marine Fisheries Service (Service) determination listing the Beringia Distinct Population Segment (DPS) of the Bearded Seal (Erignathus barbatus nauticus) as a threatened species under the Endangered Species Act (ESA).  Alaska Oil & Gas Ass'n v. Pritzker, No. 14-35806 (9th Cir. Oct. 24, 2016).  In doing so, the Ninth Circuit reversed the United States District Court for the District of Alaska.   The decision reinforces the fact that the Ninth Circuit applies a highly deferential standard ...