Petition to Delist California Gnatcatcher Filed

Citing new genetic evidence that the coastal California gnatcatcher is not a distinct subspecies as previously claimed, but is part of a single, healthy and abundant species that ranges from Southern California to the southern tip of Baja, Mexico, the National Association of Home Builders and several other parties filed a petition to remove the coastal California gnatcatcher from the list of threatened species.  The petition to the U.S. Fish and Wildlife Service (Service) is based on a peer-reviewed study of gnatcatcher DNA by Dr. Robert Zink of the University of Minnesota and several other scientists. 

The study, published in the ornithological journal The Auk confirms prior published genetic studies of gnatcatcher DNA by Dr. Zink and other nationally-recognized scientists.  The new study concludes that gnatcatchers in California are not genetically distinct from the abundant populations of gnatcatchers south of the border.  The new DNA evidence is the information that the Fish and Wildlife Service previously suggested would warrant removing the gnatcatcher from the ESA list. 

The gnatcatcher is a common blue-gray bird in Mexico and southern California.  The Fish and Wildlife Service listed the gnatcatchers in 1993 as a threatened “subspecies” whose range is limited to southern California and northern Baja, Mexico.  The listing triggered a firestorm of controversy and led to restrictions on land use across southern California.  Approximately 197,303 acres in San Diego, Orange, Riverside, San Bernardino, Los Angeles, and Ventura Counties have been designated as critical habitat for the coastal California gnatcatcher.  Federal officials estimate that the economic impact of these restrictions will total more $900 million by year 2025.

At the time of the listing, several scientists testified that genetic studies should be conducted to determine whether the gnatcatcher qualified as a subspecies.  The Service disclaimed the need for genetic studies and instead relied on measurements of physical characteristics such as the degree of brightness of feathers to conclude that the gnatcatchers in southern California were distinct from the abundant populations in Mexico.  In 1994, the District Court for the District of Columbia invalidated the gnatcatcher listing because the Service failed to disclose information relied upon in the listing.  Endangered Species Committee v. Babbitt, 852 F.Supp.32 (D.D.C. 1994). The Service relisted the gnatcatcher in 1995.

In 2000, the Journal of Conservation Biology published a study of gnatcatcher mitochondrial DNA by Dr. Zink and Dr. Jonathan Atwood (the petitioner for the listing).  The study concluded that there is no distinct subspecies of gnatcatcher.  Citing the need for analysis of nuclear DNA in addition to mitochondrial DNA in 2010 the Service denied a petition to de-list the gnatcatcher.

The new petition analyzes the nuclear DNA of gnatcatchers throughout its range.  The Zink et. al. study confirms that the California gnatcatcher is not a separate subspecies and does not exhibit ecological distinctiveness. 

Nossaman LLP and the Pacific Legal Foundation filed the petition.  Nossaman represents the National Association of Home Builders and the California Building Industry Association in the petition proceeding.

Alaska Urges National Marine Fisheries Service to Delist Subpopulation of Humpback Whales

On February 26, the Alaska Department of Fish and Game petitioned (pdf) the National Marine Fisheries Service (NMFS) to remove the Central North Pacific subpopulation of humpback whales from the federal list of endangered or threatened species. In a press release, the director of Alaska’s Division of Wildlife Conservation declared the species a “prime example of a recovered species that should be delisted” from the Endangered Species Act (ESA) because “the threat of extinction for this subpopulation is gone.”

The entire North Pacific humpback whale species (Megaptera novaeangliae) was listed under the ESA in 1970, when the population was estimated to be as few as 1,000. Estimates now place the Central North Pacific population at around 21,800 animals.

The Central North Pacific humpback whale subpopulation feeds off the coast of Alaska each summer, and migrates to Hawaii in the winter. Alaska state officials called ESA protections for the species a regulatory burden on industries such as fishing and oil and gas. They noted that, were the species to be delisted, other protections such as those provided under the Marine Mammal Protection Act would remain in place. Critics of the petition argue that the whales still face too may threats to be delisted, including entanglement in fishing gear, boat collisions, and changing ocean chemistry resulting from climate change and noise pollution.

Alaska’s petition echoes an April 2013 petition filed by the State of Hawaii urging delisting of the entire North Pacific humpback population. NMFS stated that it will respond to Alaska’s petition within 90 days.

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U.S. Fish and Wildlife Service Proposes Delisting Two Death Valley Plant Species

 The U.S. Fish and Wildlife Service (Service) recently issued (pdf) a proposed rule to remove Eureka Valley evening-primrose (Oenothera avita ssp. eurekensis) and Eureka dune grass (Swallenia alexandrae) from the federal list of endangered species. The Service’s proposed rule follows its 12-month finding on the Pacific Legal Foundation’s petition to delist the species.

Eureka Valley evening-primrose and Eureka dune grass are endemic to three dune systems in the Eureka Valley, located in Inyo County, California. Eureka Valley is managed by the National Park Service (Park Service) because it is located within federally designated wilderness areas of Death Valley National Park.

At the time of listing, the primary threats to Eureka Valley evening-primrose and Eureka dune grass were identified as off-highway vehicle activity at the Eureka dunes, as well as impacts from camping associated with such off-highway activities. The Service determined that these threats have been ameliorated by Bureau of Land Management (BLM) and the Park Service actions, including habitat protections and ongoing management of off-highway activities. According to the Service, remaining potential threats, including predation, stochastic events, climate change, and competition with Russian thistle, may be causing some stress to certain populations of the species, but these potential impacts do not rise to a level that warrants listing either species as threatened.

The two species were originally listed as endangered on April 26, 1978. On May 18, 2010, Pacific Legal Foundation filed a petition requesting that the Service delist Eureka Valley evening-primrose and Eureka dune grass, based on the Service’s analysis and recommendations in its 2007 five-year status review for the species. On March 27, 2013, Pacific Legal Foundation filed a lawsuit challenging the Service’s failure to issue the required 12-month finding. The Service’s issuance of its 12-month finding came pursuant to a settlement agreement and revised court order in that litigation.

 

After More Than Five Years, Proposed Rule to Delist Hawaiian Hawk Reopened for Comment

In August 2008, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to delist the Hawaiian hawk (Buteo solitarius), also referred to as the io, from the federal list of endangered or threatened species.  The proposed rule states that the proposed action is "based on a thorough review of the best available scientific data, which indicates that range-wide population estimates have been stable for at least 20 years, and the species has recovered and is not likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range."  While the official comment periods on the proposed rule and the proposed post-delisting monitoring plan closed on August 4, 2009, the Service did not make a final determination on the proposed rule. 

Last week, on February 12, 2014, the Service announced the reopening of the public comment period on the proposed rule to delist the Hawaiian hawk.  In the announcement, the Service states that "[a]lthough new information shows negative habitat trends due to urbanization and nonnative plant species invasion, efforts at habitat restoration that benefit the Hawaiian hawk are achieving success," and that even in the face of potential habitat concerns "the Hawaiian hawk is resilient enough to maintain itself over time in a variety of habitat types." 

The announcement states that comments submitted during the prior comment periods do not need to be resubmitted.  However, comments on the new information presented in the announcement "must be received or postmarked no later than April 14, 2014." 

The proposed rule acknowledges that if the Hawaiian hawk is delisted, thereby stripping away all protection provided by the Endangered Species Act, the hawk would still be protected by the Migratory Bird Treaty Act. 

For another take on the Service's announcement and proposed action, see the following article by Carolyn Lucas-Zenk in the West Hawaii Today.

Report Finds the U.S. Fish and Wildlife Service Relied on Inadequate Science to Propose Delisting the Gray Wolf

A report issued by a group of independent scientists claims that the U.S. Fish and Wildlife Service (Service) relied on inadequate scientific evidence to support its proposal to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA). As we previously reported, the Service issued a proposed rule to delist the species last June. The Service then commissioned U.C. Santa Barbara’s National Center for Ecological Analysis and Synthesis (NCEAS) to conduct an independent review of the science behind the proposed rule. NCEAS issued its report last month.

According to the report, the Service’s decision was not supported by the best scientific evidence available at the time the proposed rule was issued. The report found that the Service’s decision was based in part on a 2012 Service study that was “not universally accepted.” The 2012 study had concluded that wolves in the eastern United States are a distinct species from the gray wolf of the western United States, and the Service used that conclusion to determine that gray wolves occupy enough of their historic range in the West to qualify for delisting.

While the NCEAS report did not reject the 2012 study in its entirety, it concluded that the study did not represent the best available science. Environmental groups are claiming that the report is proof that a legal challenge to the Service’s proposed rule would succeed in federal court.

The report identified additional scientific research that the Service should consider before changing the gray wolf’s ESA status. The Service has reopened the comment period on the proposed rule through March 27, 2014.
 

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For The First Time Ever, U.S. Fish and Wildlife Service Declares Fish Recovered

As recently reported in The Oregonian, the U.S. Fish and Wildlife Service (Service) has declared the Oregon chub (Oregonichthys crameri) recovered, and will remove the species from the list of federally threatened and endangered species.  According to the report, this is the first fish ever taken off the endangered species list.  In a previous report, the Service stated that the fish's improved status was attributable to the efforts of the Oregon Chub Working Group, and "successful introduction of Oregon chub into new locations within their historical range and the discovery of new, previously undocumented populations." 

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Committee Recommends Delisting Yellowstone Grizzly Bear

Last week, the Interagency Grizzly Bear Committee, a panel consisting of federal, state, local, and tribal representatives, recommended that the U.S. Fish and Wildlife Service (Service) remove the grizzly bear (Ursus arctos horribilis) from the list of threatened and endangered species under the Endangered Species Act (ESA). If the Service agrees, it will initiate the rule-making process to delist the species. The Service is expected to make a decision next month.

The Yellowstone grizzly bear population is found in Montana, Idaho and Wyoming. When initially listed under the ESA, the population consisted of approximately 136 members. Today, reports indicate the species has more than 650 members.

Environmental groups contend that delisting the species is premature because the bears’ primary food source has declined due to climate change. Specifically, whitebark pine trees, which produce a nut that the bears eat, are less prevalent due to pests that previously could not survive in cold temperatures. However, according to the interagency panel, the grizzly bears’ fat levels have remained the same, thereby indicating that the species is adapting by seeking out alternative food sources.
 

U.S. Fish and Wildlife Service Proposes Delisting the Inyo California Towhee

                                                       Photograph By Alan Vernon

On November 4, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to remove the Inyo California towhee (Pipilo crissalis eremophilus) from the list of threatened and endangered species under the Endangered Species Act (ESA). The Service concluded that delisting the Inyo California towhee is warranted because substantial threats to the species have been ameliorated or reduced since listing, and the species no longer meets the definition of a threatened species under the ESA. 

According to the Service, the total rangewide population of the towhees indicates a self-sustaining population. Specifically, the species’ population has increased from 200 individual towhees at the time of listing to between 640 and 741. A cooperative agreement between land managers and the Service also represents an ongoing commitment to the conservation of the towhee and its habitat. 

Threats to the towhee historically included grazing by feral equines, recreational activities such as hiking, camping, hunting, and off-highway vehicle use, water diversion, mining, energy development, invasive and nonnative plants, predation, and climate change.  

Comments on the proposed rule must be submitted by January 3, 2014.

National Marine Fisheries Service Delists the Eastern Population of the Steller Sea Lion

Last week, the National Marine Fisheries Service (NMFS) issued a final rule (pdf) delisting the eastern distinct population segment (DPS) of the Steller sea lion (Eumetopias jubatus) from the list of threatened and endangered species. NMFS concluded that delisting is warranted because the species has met the recovery criteria outlined in its 2008 recovery plan and no longer meets the definition of a threatened or endangered species under the Endangered Species Act (ESA).

According to NMFS, the eastern DPS Steller sea lion population has increased from an estimated 18,040 animals in 1979 to over 70,000 animals. The sea lions are the first animal to be delisted by NMFS in 19 years. Jim Balsiger, a NMFS administrator in the Alaska Region, stated: “We're delighted to see the recovery of the eastern population of Steller sea lions. We'll be working with the states and other partners to monitor this population to ensure its continued health."

The eastern DPS includes Steller sea lions living in southeast Alaska (near Cape Suckling), British Columbia, Oregon, and California. The western DPS includes Steller sea lions that reside in the central and western Gulf of Alaska, Aleutian Islands, as well as those that inhabit coastal waters in Asia (e.g., Japan and Russia). The western DPS remains classified as endangered under the ESA. NMFS is not proposing any changes to the status of the western DPS.
 

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U.S. Fish & Wildlife Service Issues Recovery Plan for Alaskan DPS of Northern Sea Otter

Earlier this month, the U.S. Fish & Wildlife Service (Service) announced (pdf) the availability of its recovery plan (pdf) for the threatened southwest Alaska Distinct Population Segment of the northern sea otter (Enhydra lutris kenyoni).  The recovery plan describes the status of the otter, its history, and a number of actions the Service believes will allow for the delisting of the otter.  With respect to the otter's declining status, the recovery plan states that "[t]he only identified threat factor that is judged to have a high importance to recovery is predation[,]" and the weight of the evidence suggests that killer whale predation is the most likely cause.  As for the otter's recovery, the recovery plan identifies three general objectives to achieve delisting, and explicit criteria for determining when each objective has been achieved.    

U.S. Fish & Wildlife Service to Hold Hearings on Delisting the Gray Wolf

The U.S. Fish and Wildlife Service will hold three public hearings on its proposed rule to delist the gray wolf (Canis lupus) from the list of endangered and threatened species. The first hearing is scheduled to occur on September 30, 2013 in Washington, DC. The second will be held on October 2 in Sacramento, California, and the third on October 4 in Albuquerque, New Mexico. As we reported here, the comment period for the proposed rule has been extended to October 28, 2013. For further information regarding the proposed rule and its potential impacts on the Mexican gray wolf (Canis lupus baileyi), please see our June 20, 2013 post available here.

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Interior Extends Public Comment Period on Wolf Delisting

On September 4, 2013, the U.S. Fish & Wildlife Service announced that the public comment period regarding its proposed rule to remove the gray wolf (Canis lupus) from the list of endangered and threatened species, which was due to close on September 11, has been extended by 45 days through 11:59 p.m. on October 28, 2013.  For a discussion of the proposed rule and its potential impacts on the Mexican gray wolf (Canis lupus baileyi), see our June 20, 2013 post available here.  You may also want to check out Sylvia Fallon's blog post on SWiTCHBOARD, which is available here.

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U.S. Fish and Wildlife Service Proposes Delisting the Gray Wolf

On June 13, 2013, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to delist the gray wolf (Canis lupus) under the Endangered Species Act (ESA) throughout the United States and Mexico. The proposed rule also proposes to maintain protection for the Mexican gray wolf (Canis lupus baileyi) in the Southwest by listing it as endangered under the ESA. Presently, the gray wolf is listed in 42 states, including California. 

Previously, the Service determined (pdf) that the southwestern population of the gray wolf – known as the Mexican gray wolf – may warrant a separate listing as a subspecies or a Distinct Population Segment (DPS). However, because the entire population of the gray wolf already received protection under the ESA, the Service determined that a subspecies listing was not warranted. 

 

Now, in light of the proposed rule delisting the gray wolf entirely, and thereby removing its protection under the ESA, the Service will reconsider listing the Mexican gray wolf population as a subspecies or DPS. The Service will accept comments on the proposed rule until September 11, 2013.

U.S. Fish and Wildlife Service Denies Petition to Delist Three Antelope Populations

On June 5, 2013, the U.S. Fish and Wildlife Service (Service) denied (pdf) two petitions to remove captive populations of the scimitar-horned oryx (Oryx dammah), dama gazelle (Gazella dama), and addax (Addax nasomaculatus) from the List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA). In denying the petitions, the Service found it did not have the discretion to differentiate the listing status of animals in captivity from those in the wild.

The petitions, brought by Safari Club International and the Exotic Wildlife Association, sought to delist only captive populations of the three species. It is undisputed that wild populations require protection under the ESA. The petitioners requested a separate designation under the ESA for captive animals, as compared to members of the same taxonomic species in the wild. The Service found that, since the wild populations warrant listing under the ESA, the captive populations must have the same designation.

Delisting the species would allow the hunting and trade of the species in the United States. Petitioners assert that such activities further the conservation of the species because ranchers that breed and raise the herds for commercial purposes are less likely to do so if ESA protections remain in place. According to Mr. Craig Kauffman, president of Safari Club International, “[t]he [Service]’s decision is not a failure of the agency, but a failure of the antiquated law that needs to be modernized to deal with modern wildlife conservation needs in America.” The Service listed the three species as endangered in 2005.

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U.S. Fish and Wildlife Service Delists Magazine Mountain Shagreen

On May 15, 2013, the U.S. Fish and Wildlife Service (Service) removed (pdf) the Magazine Mountain shagreen (Inflectarius magazinensis) from the Federal List of Endangered and Threatened Wildlife. The Service determined that the threats to the species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Endangered Species Act (ESA).

The Magazine Mountain shagreen is a medium-sized, dusky brown or sand-colored snail found on Mount Magazine in western Arkansas. The snail was first listed under the ESA in 1989. According to the Service, the species’ population has remained stable since 1996, largely due to the fact that Magazine Mountain is entirely owned and protected by the U.S. Forest Service and Arkansas Department of Parks and Tourism. The snail is the first invertebrate to be delisted under the ESA.
 

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U.S. Fish and Wildlife Service Proposes Removal of Island Night Lizard

The U.S. Fish and Wildlife Service (Service) recently proposed (pdf) to remove the island night lizard (Xantusia riversiana) from its current listing as threatened under the Endangered Species Act (ESA).  The proposed removal is based on successful recovery efforts led by the U.S. Navy and National Park Service, which have resulted in the achievement of nearly all of the objectives established in the recovery plan for the species.

Island night lizards are found only on the Channel Islands - San Clemente Island, San Nicolas Island, and Santa Barbara Island - off the southern California coast.  Historic land use practices, including ranching and grazing, severely impacted habitat for the species.  Additionally, introduction of nonnative species, including goats, pigs, and rabbits, greatly damaged suitable island night lizard habitat. 

The island night lizard was originally listed as threatened under the ESA in 1977.  The Service implemented a recovery plan for the species in 1984, which focused on habitat restoration and education.  By the mid-1990s, the nonnative species responsible for most of the habitat loss were removed from the islands, allowing for the slow recovery of the island night lizard. 

Today, there are an estimated 21 million island night lizards on San Clemente Island, about 15,300 on San Nicolas Island, and about 17,600 on Santa Barbara Island.  Though almost all of the recovery plan objectives for the species have been achieved, both the Navy and the National Park Service are actively cultivating native plants to further habitat restoration on San Nicolas and Santa Barbara Island.

California Appellate Court Restricts Use of CESA Delisting Petitions

In Central Coast Forest Assoc. v. California Fish and Game Commission (pdf), the California Court of Appeal, Third Appellate District held that a petition to delist the endangered coho salmon (Oncorhynchus kisutch) under the California Endangered Species Act (CESA), “fails at the outset because a petition to delist a species may not be employed to challenge a final determination of the Commission.”  The 2-1 decision is one of a small number of reported cases to interpret the listing provisions of the California Endangered Species Act (CESA).  The decision has important state-wide implications because it precludes the use of the CESA petition process to seek reconsideration of listing decisions of the Fish and Game Commission.  Persons seeking to challenge listing decisions will be required to file a lawsuit against the Commission.

In 1995, the Fish and Game Commission listed coho salmon south of San Francisco Bay as endangered.  Then in 2004, the Commission listed coho salmon south of Punta Gorda (which is located in Humboldt County) as an evolutionarily significant unit, which includes the south of San Francisco Bay population.  That same year Central Coast Forest Association and Big Lumber Creek petitioned to delist coho salmon south of San Francisco Bay.  According to the court, the basis for delisting cited in the petition was the assertion that the native range of coho salmon does not extend south of San Francisco.

The court noted that the regulations that implement CESA provide for delisting of a species “if the Commission determines that its continued existence is no longer threatened…”  In light of this regulatory provision, the court concluded that CESA only authorizes delisting where a species is no longer endangered.  In contrast, where, as here, petitioners challenge the original listing decision, the court held that the exclusive means to pursue that challenge is a mandamus action in state court.

The dissent countered that nothing in CESA forecloses the Commission from reconsidering its prior listing decisions.  Further, the dissent criticized the majority for relying on regulations rather than CESA itself, which authorizes delisting when such action “is warranted,” to determine the proper standard for delisting.  But the majority rejected this argument, responding as follows:  “The dissent complains that our opinion would preclude the use of new evidence to show the original listing was in error.  That is correct.”  Although the decision is tied to the facts in the case, it has the potential to affect future listing and delisting decisions including by limiting legislative review of final actions taken by the Commission.

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The U.S. Fish and Wildlife Service Proposes to Downlist the Status of the Wood Stork from Endangered to Threatened

On Tuesday, December 18, 2012, the U.S. Fish and Wildlife Service (Service) proposed upgrading the status of the wood stork (Mycteria americana) from endangered to threatened under the Endangered Species Act (ESA).  The proposed change is in response to improvements in the population and habitat of the species based on the best available scientific information.

Dan Ashe, Director for the Service, remarked that the proposed reclassification "demonstrates that the [ESA] works" and that "the species is making real progress toward recovery."  The wood stork was originally listed (pdf) as endangered in 1984; since that time, the breeding population has substantially improved.  Specifically, the average number of nesting pairs has increased from 7,086 to 8,996 over the last decade.  While these nesting benchmarks are still below the five-year average of 10,000 needed for delisting, the population increase is encouraging.  The wood stork's breeding range has also expanded to twice its former size.  The species used to breed primarily in central and southern Florida, but its current breeding range includes wetland areas in Georgia and South Carolina.

The proposed reclassification will not affect any protective or conservation measures in place for the species under the ESA.  Rather, it recognizes the improvements in the wood stork's population and is intended to encourage the continuation of collaborative conservation efforts, with the ultimate goal of delisting the species in the coming years.

 



NMFS Considers Delisting a Distinct Population Segment of the Southern Resident Killer Whale

On November 26, 2012, the National Marine Fisheries Service (NMFS or the Service) accepted a petition to delist a distinct population segment (DPS) of the Southern Resident killer whales, which is currently listed as endangered under the Endangered Species Act (ESA). 

The DPS, estimated to include 88 individuals, was initially listed as endangered under the ESA in 2005.  These killer whales are "resident" type, fish-eating whales that spend a specific period of time each year in the San Juan Islands and Puget Sound. 

On August 2, 2012, the Service received a petition from the Pacific Legal Foundation on behalf of the Center for Environmental Science Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to delist the endangered Southern Resident killer whale.  The petition asserts that there is no scientific basis for the designation of the Southern Resident killer whale as a distinct population segment, and that the population is part of a larger segment and not in danger of extinction.

Pursuant to ESA section 4(b)(3)(A), the Secretary of Commerce made a 90-day finding that substantial scientific or commercial information in the petition indicates that the petitioned action may be warranted.  The Service has initiated a 12-month review of the status of the Southern Resident killer whale to fully determine whether the petitioned action to delist the killer whale is warranted.  As part of the review process, the Service solicits scientific and commercial information related to the species.

The 90-day determination that there is substantial scientific or commercial information in the petition does not prejudice the outcome of the more comprehensive 12-month review.  Although, the species will remain listed unless the 12-month review process requires a reversal, the future status of the Southern Resident killer whale is uncertain.

Free-Market Habitat Plan as an Alternative to Avoid Listing of Lesser Prairie Chicken Under the Endangered Species Act

 
On November 5, 2012, the Environmental Defense Fund (EDF) sent a letter to the U.S. Fish and Wildlife Service (Service) encouraging the Service to consider an innovative approach to support conservation of the lesser prairie chicken (Tympanuchus pallidicinctus): through the use of habitat credit exchanges between companies and landowners.  The letter comes at a time when the Service is considering whether to propose to list the lesser prairie chicken under the Endangered Species Act (ESA).  Currently the Service has determined that listing of the species "is warranted, but precluded."   

The letter to the Service explains the "recent success" of using the habitat credit exchange for conservation of the dunes sagebrush lizard (Sceloporus arenicolusin) in lieu of listing the species as threatened or endangered.  The approach used in the Texas Conservation Plan for the dunes sagebrush lizard "includes the full mitigation hierarchy of avoidance, minimization and compensatory mitigation, and designates habitat credit exchanges as the means for compensatory mitigation."  The habitat credit exchange provides landowners the opportunity to generate income by developing and selling credits that represent conservation action on their land to companies that will receive in exchange "both regulatory assurances and operational certainty."  

The Senate Committee on Environment and Public Works also sent a letter to the Service on July 16, 2012 applauding the Service's determination to not list the dunes sagebrush lizard because of the voluntary agreements entered into to protect the species, and encouraging the Service to consider these types of agreements when making its determination on the lesser prairie chicken. 

The EDF proposal is the most recent of several innovative conservation initiatives based on market mechanisms proposed by the EDF to conserve endangered and threatened species. Prior EDF initiatives included the use of safe harbor agreements to encourage landowners to protect and enhance the habitat of various species starting with agreements to protect the mature longleaf pine (Pinus palustris) forest habitat of the red-cockaded woodpecker (Picoides borealis) in the southeast and east United States. 

Valley Elderberry Longhorn Beetle Proposed for Delisting

US Fish and Wildlife Service Image of valley elderberry longhorn beetleToday, the U.S. Fish and Wildlife Service announced a proposed rule (pdf) to remove the valley elderberry Longhorn beetle (Desmocerus californicus dimorphus) from the list of threatened species.

The delisting will be significant for landowners, flood control agencies, and irrigation districts throughout the Central Valley of California because they will no longer be required to seek prior authorization for the incidental take of the beetle.  The beetle, as its name suggests, depends upon its host plant species, the valley elderberry, which grows along streams, rivers, flood control channels, irrigation ditches, and drains in the Central Valley.  Because incidental take of individual beetles would be extremely difficult, if not impossible, to quantify and predict, impacts to the ubiquitous elderberry plant is used as a proxy for take of the beetle.

According to the Service's webpage for the beetle's status, incidental take of the beetle is covered in 21 habitat conservation plans and 6 safe harbor agreements.  When it was listed in 1980, 10 occurrences were recorded at 3 locations in Merced, Sacramento, and Yolo Counties.  Thanks to the extensive efforts to preserve elderberry, it is now known from 201 occurrence records at 26 locations from Shasta County in the northern Sacramento Valley to Kern County in the southern San Joaquin Valley.

As reported here, last August, the Service issued a 90-day finding that delisting the beetle is warranted.  The finding, and today's proposed final rule, were precipitated by a 2010 delisting petition and subsequent lawsuit filed by the non-profit Pacific Legal Foundation on behalf of several landowners and flood control agencies.  However, the Service itself had recommended delisting as early as 2006 in its 5-year status review for the species.

The public comment period on the proposed delisting rule is scheduled to close on December 3, 2012.

Service Announces Delisting of Gray Wolf in Wyoming

We previously reported the Fish and Wildlife Service's intention to delist the gray wolf (Canis lupus) in the State of Wyoming.  Today the Service announced "that the Wyoming population of gray wolves is recovered and no longer warrants protection under the Endangered Species Act."  A host of news outlets reported the announcement, including the New York Times (Aug. 31, 2012, by Feilicity Barringer).  Delisting of the gray wolf is controversial, but the species has been delisted in numerous parts of the upper mid-west and western United States.

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AP Reports Gray Wolf Delisting in Wyoming is Imminent

The  Associated Press is reporting that the federal government intends to issue a final rule delisting the gray wolf (Canis lupus) in Wyoming on August 31, 2012 (The Missoulian, Aug 14, 2012, by Ben Neary).  The Fish and Wildlife Service proposed (pdf) removal of the gray wolf in Wyoming from the list of endangered and threatened species on October 5, 2011, and reopened the comment period (pdf) on that proposal on May 1, 2012.

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U.S. Fish and Wildlife Service Finds Substantial Information Indicating That Delisting or Reclassifying Six Species May Be Warranted

On June 4, the U.S. Fish and Wildlife Service (Service) published a 90-day finding (pdf) that substantial scientific or commercial information indicates that delisting the Inyo California towhee (Pipilo crissalis eremophilus) and reclassifying from endangered to threatened the arroyo toad (Anaxyrus californicus), Indian Knob mountainbalm (Eriodictyon altissimum), Lane Mountain milk-vetch (Astragalus jagerianus), Modoc sucker (Catostomus microps), and Santa Cruz cypress (Cupressus abramsiana) under the Endangered Species Act (ESA) may be warranted.  The Service will now conduct status reviews for these six species which result in a 12-month finding for each species determining whether the action is, in fact, warranted.

The Pacific Legal Foundation petitioned the Service requesting these actions on December 19, 2011.  The Foundation's petition was based on information contained in the most recent 5-year reviews for these six species, which were completed in 2008 and 2009.

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Congressman Markey Issues Sharp Criticisms of Draft Interpretation of "Endangered" and "Threatened" Species

Northeast Cottontail Historic and Current Range Map from FWS Fact Sheet 2011As previously blogged about here, on December 9, 2011, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA) by re-interpreting the definitions of "threatened" and "endangered" species in the ESA.

In a letter to the Director of the Fish and Wildlife Service (PDF) dated January 26, 2012, Congressman Markey, the ranking Democrat on the Committee on Natural Resources, expresses his "concerns that this policy has the potential to undermine several key provisions of the ESA by setting the bar for listing declining species at much too high a threshold."  So high, he argues, that "the bald eagle never would have been listed as an endangered species in the lower 48 States" because healthy populations of the bald eagle lived in Alaska "[e]ven during the worst era of DDT pesticide usage . . . ."

Markey also criticized the draft policy for ignoring "Congress' intent regarding the purpose of the ESA by refusing to consider the historic distribution of a species when making listing decisions about whether a species is in danger of extinction in a significant portion of its range."

Had such a policy been in place in the 1970s, Markey claims, "Americans would have had to travel to the most remote parts of Alaska to view species like the bald eagle, grizzly bear, or the gray wolf."  According to Markey, in passing the ESA, Congress did not sanction such a "living museum approach" to protect imperiled wildlife, but instead sought to protect ecosystems and restore species to their historic ranges.

The key provisions in the ESA provide that "'endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . [,]" and "'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

But the ESA itself does not include a definition of "significant portion" of a plant or animal's range.

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit consideration of a species' status to the range used by a species at the time the listing decision is being made; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

According to Markey, under the first aspect of the draft policy, "the FWS would only protect an imperiled animal or plant species when the decline within a significant portion of that species' geographic range implicates the 'viability' of the species as a whole.  In other words, the only parts of a species' range which matter are those portions that, if lost, would lead to the global extinction of that species."

With respect to the second aspect of the draft policy, Markey claims it "could make it even more tempting for future political appointees within the Department of Interior, as well as some members of Congress, to meddle with or defund the listing process because any delay in listing would invariably shrink the geographic range that a declining species currently occupies."

Markey argues that to be consistent with the ESA, Congressional intent, and the legislative history of the ESA, the Fish and Wildlife Service must instead develop and use "a precautionary, science-based standard for deciding when it is appropriate to protect a species under the ESA[,] [a]nd . . . must also devise a balanced, science-based approach for considering the historic range of declining species when making listing decisions as opposed to its [proposed] categorical approach where the historic range of any . . . species is always ignored."

Currently the 60-day comment period on the draft policy ends on February 7, 2012. 

Several environmental organizations have requested that the comment period be extended, but with the deadline to comment just days away, the Services have not indicated that they will issue an extension.

Gray Wolf Removed from List of Protected Species in Great Lakes Region

Secretary of the Interior Ken Salazar recently announced that the Fish and Wildlife Service would remove the gray wolf (Canis lupus) population in the Great Lakes region from the list of threatened and endangered species under the Endangered Species Act (ESA).  The species was listed in 1967 under the predecessor to the ESA.  The final rule delisting the gray wolf is available here (pdf).  The Service released the proposed rule (pdf) on May 5, 2011.  The population of gray wolfs in the Great Lakes region is estimated (pdf) to include 2,921 wolves in Minnesota, 687 wolves in Michigan, and 782 wolves in Wisconsin.

Adult gray wolves range from 40 to 175 pounds and prey upon medium and large mammals, including deer, moose, elk, caribou as well as domestic animals, including horses and cattle.  The decision to delist the speceis in the Great Lakes region drew praise from State officials in the region, farmers, and some conservation and environmental advocacy groups, but it has been criticized as premature by other environmental advocacy groups.

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Services Issue Notice of Controversial New Interpretation of Threatened and Endangered Species

Today, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) published a notice of proposed rulemaking (PDF) in the Federal Register that will, if adopted, change the Services' standards for listing and delisting species as threatened or endangered under the Endangered Species Act (ESA).  See Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species.’’ 76 Fed. Reg. 76,987 (Dec. 9, 2011). 

Under the draft policy, when making listing decisions the Services would:

1.  Deem a portion of a species' range to be "significant" if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction;

2.  Limit the "range" to the range currently used by a species during any of its life stages; and

3.  Extend a listing decision made on the basis of a threat to the species' viability throughout only a "significant portion of its range" to the entire species, throughout its entire range.

The draft policy interpretation has already drawn harsh criticism from the Center for Biological Diversity, which calls the proposal a "recipe for extinction."  By defining significance of a portion of a species' range in terms of a threat to the entire species, not just to the species found in the limited portion of its range, the Services may list fewer species and delist more than they would if "significant" was defined without reference to the entire species.  And by limiting "range" to the current range, a species that has suffered severe declines in historic range, but which is flourishing in its current range, may not qualify for listing and protection under the ESA.

In a Questions and Answers (PDF), the Services explain that while a species will not be listed solely on the basis of lost historical range, "the causes and consequences of loss of historical range on the current and future viability of the species must be considered and are an important component of determining whether a species is currently threatened or endangered."  But this has not mollified critics.

In contrast, landowners may find cause for concern because, under the draft policy, if a species is found to be endangered or threatened only within a significant portion of its range, then under the proposed interpretation the entire species would be listed, and the ESA's corresponding protections would apply throughout the species' entire range.  Thus, a species may be listed in areas where it is currently thriving, resulting in unnecessary and costly over regulation in some areas.

Although styled as a "draft policy," it is essentially a proposed rulemaking because it is the Services' "intent to publish a final policy . . . that will be accorded deference by the federal courts."  Clearly, the Services hope the new policy interpretation will eventually end claims brought in litigation over listing decisions based on past interpretations of "significant portion of its range" in the ESA's definitions of "endangered species" and "threatened species."  However, by defining "significant portion of its range" with reference to the range's importance to the species, not the geographic extent of the range, the draft policy interpretation would appear to be at odds with the plain meaning of the statutory text.

Indeed, in response to litigation over the meaning of the phrase, on March 16, 2007, the Solicitor of the Department of the Interior issued a formal opinion on the meaning of "significant portion of its range" (the so-called M-Opinion).  However, the courts have since rejected aspects of the interpretation in the M-Opinion as applied by the Fish and Wildlife Service, and the DOI withdrew it on May 4, 2011.

The comment period is open for 60 days.  Until the policy is formally adopted, the Services intend to use the draft policy as guidance in their respective listing decisions.

Fish and Wildlife Service to Consider Delisting Valley Elderberry Longhorn Beetle

The Fish and Wildlife Service (Service) announced a 90-day finding (pdf) that delisting the Valley Elderberry Longhorn Beetle (Desmocerus californicus dimorphus) may be warranted.  The Pacific Legal Foundation (PLF) initially petitioned the Service to delist the beetle in September 2010.  In April 2011, PLF filed a lawsuit seeking a court order directing the Service to issue a finding on PLF's petition.  The 90-day finding commences the Service's status review of the species to determine whether delisting is warranted.  The Service is requesting available data on the beetle.  The deadline for submitting comments to the Service is October 18, 2011.  The Service will then issue a 12-month finding as to whether the delisting is warranted or not. 

The beetle is endemic to the Central Valley of the State of California.  Until the beetle is formally delisted, all protections under the Endangered Species Act remain in place.  The address to send comments can be found on the Service's Q and A (pdf) about the 90-day finding. 

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Federal Judge Upholds Legislation De-Listing the Gray Wolf

On August 3, 2011, a federal judge upheld (pdf) a congressional budget rider that removed Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. The legislation was included as part of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (pdf) (H.R. 1473) (the Act), which was passed by Congress and signed by the President in April 2011. Section 1713 of the Act directed the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except for in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010. The rider was authored by Rep. Mike Simpson (R-Idaho) and Sen. Jon Tester (D-Mont).

Environmental groups challenged the legislation on the grounds that Congress had violated the separation-of-powers clause of the United States Constitution because it ordered an outcome in ongoing litigation without amending the underlying law and blocked judicial review, effectively negating the role of the judiciary. The Service argued that the rider was properly within the scope of Congress’ authority because it did, in fact, amend the ESA by making gray wolves an exception. The rider, however, does not reference the ESA, and only references the Service’s 2009 rule.

Unsurprisingly, in his decision, U.S. District Judge Donald Molloy upheld the statute.  But he opined that the “way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the [Act] is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.” The judge further argued that the rider “sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”
 

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Court Holds That Fish and Wildlife Service Is Required to Amend Recovery Plan Before Delisting Species

In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied from the criteria in the adopted recovery plan.

The court rejected the Service’s argument that the recovery plan merely provided guidance and that the Service could delist a species based on the factors for listing and delisting in section 4(a) of the ESA without first amending the recovery plan. Recovery plans are often ignored by the regulated community. This decision is a reminder that recovery plans have real world consequences.

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Settlement Reached to De-List the Gray Wolf

The United States Fish & Wildlife Service (“Service”) has reached an agreement with the majority of the plaintiffs, including the Defenders of Wildlife, the Greater Yellowstone Coalition, and eight other conservation organizations, to settle ongoing litigation over a Federal District Court’s 2010 decision (pdf) to reinstate Endangered Species Act (“ESA”) protections for the Rocky Mountain gray wolf.

The proposed settlement allows the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to recover the species in other parts of the Rocky Mountains. Federal protections would remain in place in Wyoming and portions of Oregon, Washington and Utah. Separate negotiations are ongoing between the Service and the State of Wyoming regarding a state management plan that could facilitate a final delisting for the species in that state.

According to Department of the Interior Deputy Secretary David Hayes, “[f]or too long, management of wolves in this country has been caught up in controversy and litigation instead of rooted in science where it belongs. This proposed settlement provides a path forward to recognize the successful recovery of the gray wolf in the northern Rocky Mountains and to return its management to states and tribes."

The settlement must be approved by U.S. District Judge Donald Molloy, whose August 2010 decision addressed whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states. To address this issue, the settlement provides that the Service would agree to address the delisting of wolves in the region as a distinct population segment, rather than on a state-by-state basis.

The proposed settlement would also be terminated if Congress passes its own wolf delisting language, as has been proposed in both House and Senate spending bills.

Fish and Wildlife Service Recommends Delisting of the Eastern Cougar

On March 2, 2011, the U.S. Fish and Wildlife Service (Service) completed its formal review of the status of the eastern cougar (Felis concolor couguar) and concluded that the subspecies is extinct.  The existence of the subspecies, listed since 1973, has long been questioned.  Dr. Mark McCollough, the Service's lead scientist for subspecies, noted that the eastern cougar has likely been extinct since the 1930s.  Though sightings had been reported, the Service believes they are not of the eastern cougar.  Rather, the Service believes that the sightings were actually of South American subspecies held in captivity and escaped or released into the wild, or of the western United States subspecies that had migrated eastward.  The Service will now prepare a proposal to remove the eastern cougar from the endangered species list.

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U.S. Fish & Wildlife Service Declares Maguire Daisy Recovered

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 has been delisted based upon a finding of recovery. 

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U.S. Representatives Introduce Another Bill to De-List the Gray Wolf

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 management plans that address their unique needs.

The recent bills, including HR 6485, have been proposed in response to a federal judge’s decision in August that resumed ESA protection for wolves in Montana and Idaho. In Defenders of Wildlife v. Salazar (.pdf), the issue before the court was whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states.

The court’s decision has frustrated Montana’s and Idaho’s efforts to manage and control their growing wolf populations. According to the Helena Independent Record, the population of gray wolves in the Northern Rockies is more than 1700, which far exceeds the reintroduction goal of 300 when the wolf was originally listed under the ESA. Thus, according to its sponsors, the legislation will enable the states to control the wolf populations’ while limiting their effect on big game populations and local livestock.

Certain sponsors of the bill are hopeful about the possibility of attaching the bill in the lame-duck session, possibly as part of an omnibus spending bill or a continuing resolution. Others are unsure whether it will have an opportunity to pass, given that earlier wolf bills have had little success.
 

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Fish and Wildlife Service Finds Delisting of Stephens' Kangaroo Rat Not Warranted

The Fish and Wildlife Service announced on August 19, 2010 that it will not be removing the Stephens’ kangaroo rat (Dipodomys stephensi) from the Federal List of Endangered and Threatened Wildlife. This decision constitutes the Service’s 12-month finding (PDF) on a petition submitted by the Riverside County Farm Bureau in 2002 to delist the species as endangered.

The Stephens' kangaroo rat is a burrow-dwelling nocturnal mammal that inhabits arid and grassy habitats in western North America.  It is known to occur at lower elevations of the dry inland valleys west of the Peninsular Ranges of southern California.  At the time of listing in 1988, the species’ geographic range encompassed the Perris, San Jacinto, and Temecula Valleys in western Riverside County, and the San Luis Rey Valley in San Diego County.  Since listing, additional populations have been found near the Silverado Conservation Bank in western Riverside County and Rancho Guejito and Ramona Grasslands in San Diego County.

According to the Service, delisting is not warranted at this time because the criteria provided in the draft recovery plan (PDF) for delisting the species have not been met.  The criteria includes (1) establishment of a minimum of five reserves, one of which is ecosystem-based, in western Riverside County that encompass at least 16,500 acres of occupied habitat that are permanently protected, funded, and managed; and (2) establishment of two ecosystem-based reserves in San Diego County, one in the Western Conservation Planning Area and one in the Central Conservation Planning Area, which are permanently protected, funded, and managed.

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Court Sets Aside Rule Delisting Gray Wolf

The United States District Court for the District of Montana issued a decision (PDF) setting aside the 2009 Final Rule (PDF) that delisted the distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  The court found that the Endangered Species Act (ESA) does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy. 

The gray wolf was listed as endangered under the ESA in 1974.  The Service subsequently developed a wolf recovery plan, and the gray wolf was reintroduced in the northern Rockies in the mid-1990s.  Under the Bush Administration, the Service sought to delist the wolf in 2008 (including the Wyoming wolves), but environmental plaintiffs successfully enjoined implementation of that rule.  The 2009 Final Rule removed ESA protection for the gray wolves in Idaho and Montana, but preserved protection for the Wyoming Wolves noting that the state's regulatory framework failed to meet the ESA's requirements. 

In challenging the 2009 Final Rule, plaintiffs argued that the Service had violated the ESA by listing something less than a DPS (by only protecting the Wyoming wolves and excluding Idaho and Montana) as endangered and that the definition of a  "species" is nothing smaller than a DPS.  The Service defended its listing decision arguing that the ESA allows for listing of part of a DPS because the term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range.  The court explained that the Service's argument could not be reconciled with the plain reading of the ESA and that the term "species" excludes distinctions below that of a DPS.  The court further concluded that the Service's interpretation of the ESA was not deserving of deference and was unreasonable.

Pacific Legal Foundation Petitions to Delist the California Gnatcatcher

California GnatcatcherOn April 13, 2010, the Pacific Legal Foundation (PLF) filed a petition (PDF)  to remove the coastal California gnatcatcher, specifically, the subspecies Polioptila californica californica, from the Fish and Wildlife Service’s list of threatened species. Considerable controversy surrounded the 1993 listing and subsequent designation of critical habitat for the coastal California gnatcatcher because its range includes prime real estate and agricultural land in the southern California counties of Los Angeles, Orange, San Diego, Riverside, and San Bernardino.

In its petition, PLF argues, in essence, that scientific studies indicate that no such subspecies exists, i.e., there is no such thing as the “coastal California gnatcatcher.” PLF cites scientific studies published since the 1993 listing that undermine the original basis for the listing. The decision to list the gnatcatcher relied heavily on research published in the early 1990s indicating that the relatively small population of gnatcatchers in southern California formed a subspecies of the much larger population of California gnatcatchers that extends from Los Angeles to the southern end of Baja, Mexico. But studies based on genetic analysis and re-analysis of the original data set that led to the listing conclude that there is no biological basis for the P. c. californica taxonomic classification. If there is no such subspecies, then, according to PLF, the gnatcatcher is not threatened because the larger population inhabiting southern California and Baja, Mexico is not vulnerable to extinction in the near future.

If the Fish and Wildlife Service delists the gnatcatcher, the designation of nearly 200,000 acres of land as critical habitat will be withdrawn. Delisting, however, would not result in the removal of all regulatory protections for the gnatcatcher in southern California. Much of the coastal California gnatcatcher’s range is already subject to conservation under the terms of Habitat Conservation Plans that collectively cover millions of acres, and the gnatcatcher is also protected under the Migratory Bird Treaty Act. Accordingly, delisting may have little or no practical effect for many landowners and developers in the region.

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