Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

As 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.

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The U.S. Fish and Wildlife Service has prepared a 90-day finding (pdf) under the Endangered Species Act, in which it concludes that list of the ‘I’iwi (Vestiaria coccinea) as threatened or endangered  may be warranted, according to an article in Greenwire by April Reese.  The species, also known as the scarlet Hawaiian honeycreeper, is endemic to Hawaii, and its known distribution is limited to the islands of Hawaii, Maui, Molokai, Oahu, and Kauai.

The Service received a petition to list the species on August 25, 2010, from Noah Greenwald, Center for Biological Diversity, and Dr. Tony Povilitis, Life Net.  With its 90-day finding, the Service initiated a status review for the species that will culminate in a 12-month finding, which will address whether listing is warranted.  The time frame for that review will be dictated by the date when the 90-day finding is published in the Federal Register.

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On January 12, 2012, the U.S. Fish and Wildlife Service found, after completing a 90-day review, that a petition to list the Humboldt marten (Martes americana humboldtensis) as an endangered or threatened species under the federal Endangered Species Act presented substantial scientific information indicating that listing may be warranted.  The Service will now conduct a comprehensive status review of the species to determine whether listing of the Humboldt marten is warranted.  The Service will be accepting comments on the Humboldt marten until March 12, 2012. 

For almost 50 years the Humboldt marten, a member of the weasel family, was considered potentially extinct.  In 1996, however, a stationary camera captured a picture of the illusive creature in Del Norte, California.  It is believed that the Humboldt marten population in California consists of fewer than 100 individuals.

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The Fish and Wildlife Service (Service) announced this week a 90-day finding (pdf) on a petition (pdf) submitted by the Center for Biological Diversity to list the Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act (ESA) and to designate critical habitat. As reported in the Sacramento Bee and the Modesto Bee, the Service stated that there is enough evidence to consider protecting the fox based on its small population, threats from off-road vehicles and disease transmission from dogs.

The fox, considered one of the rarest mammals in the United States, weighs about ten pounds, measures just over two feet, and generally lives only above an elevation of 7,000 feet. The current distribution of Sierra Nevada red fox is believed to be restricted to two small populations: one in the vicinity of Lassen Peak and the other in the vicinity of Sonora Pass.  In 1980, the California Fish and Game Commission listed the species as threatened under the California Endangered Species Act.

Historically, the Sierra Nevada red fox occupied high-elevation areas of the Sierra Nevada and Cascade mountain ranges in California, ranging from Tulare County north to Sierra County, and from the vicinity of Lassen Peak and Mt. Shasta west to the Trinity Mountains in Trinity County. A recent study indicates that this range also included the southern Cascade mountain range in Oregon, as far north as the Columbia River.

Scientific and commercial data and other information regarding this subspecies must be received on or before March 5, 2012. Based on the status review, the Service will issue a 12-month finding on the petition, which will address whether the listing is warranted.

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As recently reported by Matt Weiser of the Sacramento Bee, on December 15, 2011, the California Fish and Game Commission named the black-backed woodpecker (Picoides arcticus) a candidate species.  Under the California Endangered Species Act, the Department of Fish and Game now has 12 months to complete a status review of the species "based on the best scientific information available" and submit a report and listing recommendation to the Commission.  After receiving the Department's recommendation and all appropriate public comment at a public hearing, the Commission will decide whether listing of the woodpecker as an endangered or threatened species is or is not warranted. 

The Department's initial evaluation and recommendations is available here (pdf).

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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.

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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 classification of the coastal California gnatcatcher has been the subject of considerable scientific debate."

The debate regarding the legitimacy of the coastal California gnatcatcher as a species has been ongoing since the time of listing of the species in 1993.  In part, the debate stems from disagreement about the role of morphology (physical appearance such as feather color or tail length) versus genetics in distinguishing among species and subspecies.

Despite the fact that it acknowledged scientific debate regarding the taxonomic classification of the gnatcatcher, the Service concluded that "[t]he genetic information provided in the petition and assertions of improper statistical analyses have been the focus of several Service and independent scientific reviews and the Service has concluded that the information is insufficient to support reclassification."  (Citations omitted from quotation.)

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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 competition from brown trout, inadequate regulatory protections, and Whirling disease.  (See California Golden Trout Protection Not Warranted Questions and Answers (pdf).)  Two years later, the Service found (pdf) that the petition presented substantial scientific or commercial information to indicate that listing may be warranted. 

In the recent 12-month finding (pdf) declining listing, the Service noted a number of conservation measures that have taken place since the 2002 determination, including the completion of a revised Conservation Assessment and Strategy for the California Golden Trout (pdf), an agreement between the California Department of Fish and Game and the Forest Service to implement the Conservation Assessment and Strategy, and a number of coordinated activities undertaken pursuant to the agreement intended to benefit the species.  In light of these activities and their impact on the species, the Service determined that the California golden trout does not warrant listing at this time.

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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 warranted; however, after review of the available scientific and commercial information on the species, the Service has now concluded there are no substantial threats to the Mohave ground squirrel throughout its range. 

The Mohave ground squirrel is found in desert scrub communities and Joshua tree woodlands in the Mojave Desert in portions of Inyo, Kern, Los Angeles, and San Bernardino counties.

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In 1978, the Loggerhead Sea Turtle (Caretta caretta) was listed as threatened under the federal Endangered Species Act.  On September 16, 2011, the National Oceanic and Atmospheric Administration (NOAA) and U.S. Fish and Wildlife Service (Service) issued a Final Rule revising the listing for the Loggerhead Sea Turtle from a single threatened species to nine distinct population segments.  In the Final Rule five distinct population segments were listed as endangered and four were listed as threatened.  Jim Lecky, director of protected species at NOAA Fisheries, stated that the "division of loggerhead sea turtles into nine distinct population segments will help us focus more on the individual threats turtles face in different areas."  This assessment was echoed by Cindy Dohner, the Service's southeast regional director, who stated that "[t]oday's listing of separate distinct population segments will help us better assess, monitor, and address threats, and evaluate conservation successes, on a regional scale."   The Final Rule notes that in the future, the Service and NOAA will propose to designate critical habitat for the two distinct population segments occurring within the United States. 

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Last week, the Fish and Wildlife Service (Service) announced (PDF) a 12-month finding to list the Franciscan manzanita (Arctostaphylos franciscana) -- a plant previously thought to be extinct in the wild -- as endangered under the Endangered Species Act (ESA).  The plant, native to the San Francisco peninsula, had not been seen in the wild since 1947.  As we previously reported here, in fall 2009, a botanist identified a single specimen in an area adjacent to Doyle Drive in San Francisco.  A conservation plan was quickly designed for the plant, which was then transplanted to the Presidio of San Francisco for protection.

The Service has opened a 60-day comment period seeking data and comments from the public on the proposed listing and whether designation of critical habitat for the Franciscan manzanita is prudent or determinable.  At this time, the Service believes that critical habitat is not determinable due to a lack of knowledge of what physical and biological features are essential to the conservation of the species, or what other areas outside the site that is currently occupied may be essential for the conservation of the species.

The 60-day comment period closes November 7, 2011.  According to the Service, comments may be submitted by accessing the following website: http://www.regulations.gov.  In the Keywords box, enter Docket No. FWS–R8–ES–2010–0049 and follow the instructions for submitting comments. 

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On August 15, 2011, the National Marine Fisheries Service (NMFS) published a Federal Register notice (pdf) announcing the five-year review reports for six species of salmon and steelhead listed under the Endangered Species Act (ESA). NMFS completed reviews for five Pacific salmon species evolutionary significant units (ESUs), and one steelhead distinct population segment (DPS) in California. Specifically, reviews were completed for the Sacramento River winter-run Chinook salmon (pdf), the Central Valley spring-run Chinook (pdf), the Central Valley steelhead (pdf), the Central California Coast coho salmon (pdf), the Southern Oregon/Northern California coho salmon (pdf), and the California Coastal Chinook salmon (pdf).

NMFS completed the reviews pursuant to section 4 of the ESA, which requires federal agencies to conduct reviews of listed species at least once every five years. Based on these reviews, NMFS determines whether a species should be delisted, or reclassified from endangered to threatened (or threatened to endangered).

In the reports, NMFS concluded that each of the species is to retain its current ESA listing classification. NMFS found that, although many salmon and steelhead populations within the ESUs and DPSs have experienced declines in abundance over the last five years, their overall status indicates that their risk of extinction has not changed since 2005. The current listings are as follows:

• Sacramento River winter-run Chinook salmon (Endangered)
• Central Valley spring-run Chinook (Threatened)
• Central Valley steelhead (Threatened)
• Central California Coast coho salmon (Endangered)
• Southern Oregon/Northern California coho salmon (Threatened)
• California Coastal Chinook salmon (Threatened)

According to NMFS, the declines in salmon and steelhead populations are most likely due to poor ocean conditions and drought. Factors that continue to pose a threat to their survival and recovery include a wide range of activities, including overfishing, predation, loss of habitat, hydropower development, hatchery practices, changes in ocean conditions and productivity, drought, and the effects of global climate change.

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On August 15, 2011, after a little more then a decade of protection, the Fish and Wildlife Service (Service) announced that the Lake Erie water snake (Nerodia sipedon insularum) was recovered and that it has been removed from the list of threatened and endangered species.  The Service, which listed the Lake Erie water snake as a threatened species in 1999, stated that the recovery was achieved through minimizing and reducing "the threats to the snake by sustaining and protecting summer and hibernation habitats and ensuring the permanent protection of shoreline habitat."  The Lake Erie water snake is just the 23rd species that has been delisted based upon a finding of recovery. 

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The Fish and Wildlife Service announced it is listing the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as endangered on an emergency  basis under the Endangered Species Act.  The agency decision (pdf) appears in the August 10, 2011 Federal Register.  The species "is currently known to occur at only a few small remote islands within the Florida Keys."  This current distribution is dramatically smaller than the historic distribution, according to the Service: "the Miami blue has undergone a substantial reduction in its historical range, with an estimated > 99 percent decline in area occupied."  Along with the emergency listing decision for the Miami blue butterfly, the Service took action to protect three butterfly species that are similar in appearance: the cassius blue butterfly (Leptotes cassius theonus), ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and nickerbean blue butterfly (Cyclargus ammon).  In an article reporting on the Service's decision, one journalist reported that "after reviewing the dire data on the Miami blue, the agency moved up its listing from a 2012 date initially proposed" in a lawsuit settlement.  (Miami Herald, August 9, 2011, by Curtis Morgan.)

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On August 8, 2011, the Center for Biological Diversity (CBD) reported that the U.S. Fish and Wildlife Service (Service) listed five fish species located in Alabama, Arkansas, Kentucky, and Tennessee as endangered under the federal Endangered Species Act.  The five fish species include the Cumberland darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus crypticus), and laural dace (Chrosomus saylori).  All five fish species were previously identified on the Service's candidate list, which identifies species that qualify for listing, but whose final listing action is precluded by higher priority species.  The report by CBD states that the final listing action is a result of the recent settlement agreement between the Service, WildEarth Guardians, and the Center for Biological Diversity.  (For a discussion of the settlement agreement, please see our prior posts on May 11, 2011 and July 14, 2011.) 

The Service's listing determination states that the Service intends to propose critical habitat for the newly listed species within the "next few months."  

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The Fish and Wildlife Service (Service) made a "warranted but precluded" finding (PDF) for the whitebark pine (Pinus albicaulis).  This finding means that the Service has determined that the whitebark pine should be listed, but that it will not currently list the species because there are other higher priority species in the queue and there is a lack of funding.  Therefore, the Service has added the whitebark pine to its candidates species list and will develop a proposed rule to list the species as priorities and funding allow. 

As we previously reported, the Natural Resources Defense Council sued the Service in March 2010 to act on a 2008 petition to list the species.  In July 2010, the Service made a 90-day finding that listing the species may be warranted. 

The trees are being harmed by a disease known as white pine blister rust, as well as by beetles and climate change.  The Service found that the primary threat to the species is from the white pine blister rust, which is nearly ubiquitous throughout the range of the species and results in the mortality of a majority of infected individuals, with all age classes of the trees being susceptible.  Warmer climates have facilitated large outbreaks of the mountain pine beetle, which feeds on the whitebark pine.  Climate change and warmer temperatures will also decrease suitable habitat for the species.

The Service assigned the whitebark pine a Listing Priority Number of 2 based on its finding that the species faces threats that are of high magnitude and imminent.  This is the highest priority number that can be provided to a species. 

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On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species.  The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues.  The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.

The Service has been subject to a barrage of litigation regarding the listing of species.  Petitions to list more than 1,000 species have been filed since 2007, and this has created an enormous backlog for species awaiting listing determinations.  Dan Ashe, Director of the Service, stated, "This work plan will allow the Service to more effectively focus our efforts on providing the benefits of the ESA to those imperiled species most in need of protection." 

As we previously reported, the Service and WildEarth had entered into an settlement agreement in May 2011 (May Agreement) under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (PDF) in the Federal Register.  In return, WildEarth agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program.  WildEarth also agreed to limit the amount of petitions it submits each fiscal year for the duration of the May Agreement.  The court stayed its approval of the proposed May Agreement when CBD opposed approval after being left out of the negotiation process.  CBD had filed many of the original lawsuits for species covered by the May Agreement.

The new work plan modifies some of the deadlines imposed by the May Agreement with WildEarth.  It sets deadlines for 40 species, while incorporating the framework set in the May Agreement for how the Service will address decisions related to hundreds of other species.

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In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows.  According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA.  But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing."  In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal.  The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."

Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views."  Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science."  Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."

Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all.  Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.

Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.

While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened.  See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).  As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under section 4(d) of the ESA placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and EPA may assert its authority under the Clean Air Act to regulate GHGs.

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The National Marine Fisheries Service (NMFS) announced its determination to retain the listing of the Oregon Coast (OC) Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) as threatened under the Endangered Species Act (ESA).  The agency's determination was published (pdf) in the Federal Register on June 20, 2011.  NMFS first proposed listing of the Oregon coast coho salmon in 1995 and first listed (pdf) the species in 1998.  The status of the species has been the subject of considerable controversy and a number of lawsuits.  Most recently, a 2008 determination to list the species was challenged by Douglas County, Oregon and other plaintiffs.  That lawsuit was resolved by a settlement that required NMFS to undertake a status review, which formally ended with the agency's June 17, 2011 announcement that it intended to retain the listing of the species.  Among the issues that led to the controversy over the status of the species, two prominent points of disagreement were the extent to which NMFS should consider hatchery fish and the extent to which NMFS can properly rely on unproven conservation measures when making listing determinations.  One news article on the subject reported NMFS's determination as a "blow to Oregon," which had sought to devise a conservation program in partnership with the federal government in order to avoid a decision to list to species under the ESA (OregonLive.com, June 17, 2011, by Scott Learn).

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The House Committee on Natural Resources is set to hold hearings on a bill that will allow for the lethal removal of California sea lions (Zalophus californianus) caught eating endangered salmon and steelhead just below the Bonneville Dam on the Columbia River. The Endangered Salmon Predation Prevention Act (H.R. 946), introduced in March 2011, would allow the states of Washington and Oregon, and four local tribal organizations, to get year-long leases to lethally remove a limited number of sea lions that prey on salmon and steelhead listed as endangered under the Endangered Species Act. According to Representative Doc Hastings (R-Wash.), the Chairman of the Committee on Natural Resources, “[a]s Northwest residents spend hundreds of millions of dollars each year to protect salmon, California sea lions camp out at Bonneville Dam and gorge themselves on endangered fish. . . . With all other methods exhausted, lethal removal of the most aggressive sea lions is often the only option left to deter predation, help protect endangered salmon and recoup more of our region’s substantial investment in salmon recovery.”

The legislation follows a May 2011 agreement reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, the National Marine Fisheries Service (NMFS), and the states Oregon and Washington to temporarily suspend the lethal removal of the sea lions until September 2011. The agreement was due to litigation pending in response to the recent NMFS authorization to resume the lethal removal of the sea lions.

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On June 8, 2011, Senator Inhofe (R-OK) filed an amendment (SA 429 (pdf)) to S. 782, the Economic Development Revitalization Act of 2011, that would amend section 4 of the Endangered Species Act to exempt the lesser prairie-chicken (Tympanuchus pallidicinctus) from protection under the Act.  According to Inhofe, if the U.S. Fish and Wildlife Service were to list the lesser prairie-chicken, it would greatly restrict the development of wind energy in Oklahoma.

Senator Inhofe's proposed amendment comes on the heels of Senator Cornyn's proposed amendment (SA 396 (pdf)) to S. 782 that would exempt the dunes sagebrush lizard (Sceloporus arenicolus) from the Endangered Species Act, as previously discussed here. 

In 1998, the Service issued a 12-Month Finding (pdf) in which it determined that listing the lesser prairie-chicken as threatened is "warranted but precluded" by other higher priority listing actions.  Most recently, in a Candidate Notice of Review (pdf) published on November 10, 2010, the Service announced that it has retained the second-highest Listing Priority Number, LPN 2, for the prairie-chicken because it continues to face significant and imminent threats throughout its range from agricultural activities and wind, oil, and gas development.

As explained in a prior entry, House Republicans Steve Pearce (R-NM) and Mike Conway (R-TX) and the Permian Basin Petroleum Association adamantly oppose listing the dunes sagebrush lizard and the lesser prairie-chicken for fear that doing so would halt oil and gas production and cost jobs in southeastern New Mexico and west Texas.  Opponents to listing these species add that both species are currently protected under voluntary Candidate Conservation Agreements (CCAs) and Candidate Conservation Agreements with Assurances (CCAAs).  However, both amendments would "exempt" these species from the Act, thus nullifying the primary incentive for private landowners and developers to enter into such CCAs or CCAAs with the Service.

Proponents of the listings such a Wild Earth Guardians argue that failure to list these species could result in their extinction, and that attempts to amend the Endangered Species Act to exempt species from its protection undermines the Act and increases the cost to protect and allow for the recovery of endangered species.

At this time, neither amendment has been taken up for a vote.

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Senator Cornyn (R-Texas) has filed an amendment to S. 782 (pdf), a bill entitled the Economic Development Revitalization Act of 2011, that would block the U.S. Fish and Wildlife Service from listing the dunes sagebrush lizard (Sceloporus arenicolus) as endangered.

The amendment would make good on half of the proposal of House Republicans from West Texas and southeastern New Mexico earlier this Spring (blogged about here) to use legislation to exempt the lizard and the lesser prarie chicken from the Endangered Species Act.

Opponents of the proposed rule (pdf) to list the lizard as endangered claim that there is insufficient scientific information to support the listing, and that the Service failed to accurately estimate the economic impact of the listing decision, claiming it would halt oil and gas production in the Permian Basin, which supplies nearly half the oil produced in Texas.

The Service believes that the science supports the listing, and that oil and gas wells, pads, access roads, and other associated infrastructure have destroyed and fragmented the imperiled shinnery oak and dune habitat that the lizard needs to survive, and poses a significant threat to the
species throughout its range.

The comment period on the proposal to list the dunes sagebrush lizard closed on May 9, 2011, and the earliest the Fish and Wildlife Service expects to issue a final rule is this coming December.

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The Fish and Wildlife Service is initiating a five-year review of 53 species under the Endangered Species Act.  The subject-species consist mainly of various frogs, butterflies, moths, snakes and lizards, including the El Segundo blue butterfly, San Francisco garter snake, California red-legged frog, California tiger salamander (Central), Western snowy plover, Longhorn fairy shrimp, and Vernal pool fairy shrimp.  Several plant species are also under review.  The purpose of the five-year review is to determine whether any of the species should be removed from the endangered species list, or reclassified from threatened to endangered or vice versa. 

The Service is seeking new information on the species relating to the species' biology, habitat conditions, any conservation measures that have been implemented to protect the species, threat status and trends, as well as other relevant information, such as improved analytical methods. 

Comments should be submitted by July 25, 2011.  The address for submitting comments varies by species and can be found on the notice (PDF). 

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On May 17, 2011, the U.S. District Court for the District of Columbia stayed its approval of a proposed settlement agreement (Agreement) aimed at expediting findings related to petitions to list 251 species. The Center for Biological Diversity (Center) opposed approval of the Agreement after being left out of the negotiation process.

As we previously reported, plaintiff WildEarth Guardians (Guardians) entered into the Agreement with the Secretary of the Interior and the U.S. Fish and Wildlife Service (Service), under which the Service agreed to a six-year work plan to address 251 species listed as candidate species on the 2010 Candidate Notice of Review (pdf) in the Federal Register.  In return, Guardians agreed not to bring further litigation to enforce statutory deadlines under the Service’s Listing Program. Guardians also agreed to limit the amount of petitions it submits each fiscal year for the duration of the Agreement.

The Center expressed frustration that it only learned of the negotiations for the first time upon the parties’ filing of their joint motion for approval of the Agreement. The Center argues that the obligations imposed on the Service are unenforceable, and it characterizes the Agreement as illusory. The Center also claims that the Agreement is contrary to public policy because: (1) it undermines other purposes of the Listing Program; and (2) its overall effect would be to stymie petitions and lawsuits to enforce the ESA’s statutory deadlines, in contravention of the ESA, which expressly provides citizens with the right to petition for species listings and to seek the Service’s action on such petitions within the ESA’s statutory deadlines.

The court has scheduled a Status Conference for June 20, 2011, at which time it will review the progress made towards crafting a new agreement, as well as address the need to continue the litigation.

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On May 4, 2011, the Solicitor for the U.S. Department of the Interior withdrew (pdf) a controversial 2007 opinion (pdf) (the Opinion) that was recently criticized and rejected by federal courts in Montana and Arizona.  The Opinion provided an interpretation of the phrase "in danger of extinction throughout all or a significant portion of its range" (the SPR phrase). This phrase is key for listing determinations under the federal Endangered Species Act (ESA), as an "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range."  The Opinion concluded that:

1. The SPR phrase is a substantive standard for determining whether a species is an endangered species--whenever the Secretary concludes because of the statutory five-factor analysis that a species is "in danger of extinction throughout . . . a significant portion of its range," it is to be listed and the protections of the ESA applied to the species in that portion of its range where it is specified as an "endangered species";
2. the word  "range" in the SPR phrase refers to the range in which a species currently exists, not to the historical range of the species where it once existed;
3. the Secretary has broad discretion in defining what portion of a range is "significant" and may consider factors other than simply the size of the range portion in defining what is "significant"; and
4. the Secretary's discretion in defining "significant" is not unlimited; he may not, for example, define "significant" to require that a species is endangered only if the threats faced by a species in a portion of its range are so severe as to threaten the viability of the species as a whole.

Thus, instead of defining an endangered species by its historical range, the Opinion concluded that a species could be listed, or de-listed, based on the status of the species in its current range.  As such, the Opinion purported to authorize the listing or de-listing of portions of a species or a distinct population segment on the basis of spatial (or geographical) considerations.  

The legitimacy of the Opinion rose to the forefront as a result of the litigation surrounding the decision by the U.S. Fish and Wildlife Service (Service) to de-list the gray wolf in Montana and Idaho.  In Defendants of Wildlife v. Salazar (pdf), a federal district court held that the Service's de-listing of the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA.  The district court found that the entire region's wolf population must be listed under the ESA, rather than the wolf's status varying from state to state.  Accordingly, the de-listing decision was invalidated.

As a result of this decision, Congress passed the first ever bill to effectively de-list a species listed as endangered or threatened under the ESA.  See our posts of December 7, 2010 and April 14, 2011.

While it is not clear how the withdrawal of the Opinion will impact listing decisions in the future, the notice issued by the Solicitor states that the Service intends to "reconsider how it applies the SPR phrase and to develop guidance on how to apply the SPR phrase in making decisions to add or remove species from the lists of threatened and endangered species."

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The U.S. Fish and Wildlife Service ("Service") announced that the mountain plover, a small native bird inhabiting open, flat lands with sparse vegetation, does not warrant protection under the Endangered Species Act (ESA). 

Mountain plovers breed in the western Great Plains and Rocky Mountain States from extreme southern Canada to northern Mexico.  Within the United States, most breeding occurs in Montana, Wyoming, and Colorado; fewer breeding birds occur in Kansas, Nebraska, New Mexico, Oklahoma, Texas, and Utah.  Mountain plovers winter mostly in California, southern Arizona, Texas, and Mexico.  California’s Sacramento, San Joaquin, and Imperial valleys support the greatest known number of wintering mountain plovers. 

The Service based its decision on several key factors, including the following:

• Its current estimate of the mountain plover breeding population is over 20,000 birds, more than double the estimate cited in the Service’s 2002 proposed rule to list the species as threatened under the ESA; 
• The species’ geographically widespread breeding and wintering ranges and its ability to use a variety of habitats contributes to its security;
• Mountain plovers have adapted to many human activities, such as using crop fields for breeding and wintering; and 
• Human land use changes, alone or in combination with climate change, are not likely to result in significant population-level impacts to the mountain plover in the foreseeable future.

The Service also discussed the potential impacts of loss or degradation of mountain plover habitat, which has generally been identified as the greatest potential threat to the species.  The mountain plover’s diverse habitats are subject to anthropogenic changes, including cattle grazing and mineral and energy development as well as the loss of agricultural lands to solar energy development in the San Joaquin and Imperial valleys.  However, the Service found these threats are generally localized and are not likely to result in significant population-level impacts to the species.

The Service’s determination satisfies its obligation under a 2009 settlement agreement entered into with Forest Guardians (now WildEarth Guardians) and the Biological Conservation Alliance for their claim challenging the Service’s 2003 withdrawal of a 2002 proposal to list mountain plover under the ESA.  The settlement agreement required the Service to reinstate the 2002 proposal, receive public comment on the proposal, and prepare a final rule by May 1, 2011.  This withdrawal constitutes the Service’s final action. 

Click here to read the full Withdrawal of the Proposed Rule to List the Mountain Plover as Threatened.

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A public rally to oppose the U.S. Fish and Wildlife Service's proposal to list the dunes sagebrush lizard (formerly known as the sand dune lizard) as endangered is being sponsored by the Permian Basin Petroleum Association in west Texas.  That proposal has drawn sharp criticism from Congressmen Steve Pearce (R-NM) and Mike Conway (R-TX). 

Both the PBPA and the Congressmen claim that the listing will cost jobs in the oil and gas industry by blocking exploration and extraction in counties on or near the Texas-New Mexico border for several years.  Advocates for the listing decision, such as the WildEarth Guardians, argue that the Fish and Wildlife Service determined that the listing is warranted years ago, and has already taken too long to promulgate a final listing rule.

Habitat for the dunes sagebrush lizard overlaps the habitat for another imperiled species, the lesser prairie chicken, which is currently being evaluated as a candidate for listing.

Currently, oil and gas companies, ranchers, and landowners can enter into Candidate Conservation Agreements or Candidate Conservation Agreements with Assurances that require them to undertake specified conservation measures to protect the lizard and prairie-chicken in exchange for certain assurances from the federal government that they will not be required to adopt additional conservation measures to continue their activities if either of the species is eventually listed.

The comment period on the proposal to list the dunes sagebrush lizard closes on May 9, 2011, and the earliest the Fish and Wildlife Service expects to issue a final rule is this coming December.

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The New York Times reported that the number of petitions to list a species as threatened or endangered under the Endangered Species Act (ESA) received by the U.S. Fish and Wildlife Service (Service) has skyrocketed in recent years.

"Over the last four years, a few environmental groups have requested that more than 1,230 species be listed, compared with the previous 12 years in which annual requests averaged only 20 species."

(The New York Times, April 20, 2011, by Todd Woody.)  The increase from an average of 20 petitions to an average of more than 300 petitions is certain to tax the Service's resources.  While the number of petitions has ballooned, the amount Congress has appropriated for listing activities has remained relatively stable.

In response, the Service (pdf) has asked Congress to establish a cap on the total amount of resources that are allocated to responding to listing petitions.  (See page ES-11.)  The Times reports that "[t]wo environmental groups, the Center for Biological Diversity and WildEarth Guardians, have filed 90 percent of the listings petitions since 2007."  Environmental groups are divided regarding the wisdom of this approach, which involves flooding the Service with work that it cannot complete in a timely manner then suing the Service for failing to comply with statutory deadlines to respond to the flood of listing petitions.

Among the potential problems associated with the petition process is the concern that listing petitions may be submitted by entities with parochial interests.  As a result, there is a risk that listing priorities may be dictated by the flood of listing petitions rather than by a science-based assessment of which species would benefit most from the protections that accompany listing.

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As reported by a number of news outlets including The New York Times, Congress is poised to pass an appropriations bill (pdf) to fund the federal government for the remainder of this fiscal year, which ends September 30, 2011, that includes a provision to remove the gray wolf from the list of threatened and endangered species protected by the Endangered Species Act (ESA) in the states of Idaho and Montana.  The gray wolf would remain listed in Wyoming.  (The New York Times, April 13, 2011, by Felicity Barringer and John M. Broder.)

The relevant provision is section 1713 of the bill, which requires the Secretary of the Interior to reissue a final rule delisting the the Northern Rocky Mountains distinct population segment of the gray wolf throughout its range with the exception of that portion within the State of Wyoming.  It also specifies that the reissued rule is not subject to judicial review.  As we explained in a prior blog post, after the rule was previously issued, environmental groups challenged its legality and a federal district court held that it was unlawful.

In a recent blog post, we reported that a federal district court recently refused to enter a settlement agreement between the U.S. Fish and Wildlife Service and 10 conservation groups that would have lifted ESA protections for the gray wolf in Montana and Idaho.

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A federal judge has denied a proposed settlement agreement between the U.S. Fish and Wildlife Service (“Service”) and 10 conservation groups that would have lifted Endangered Species Act (“ESA”) protections for the gray wolf in Montana and Idaho. In the decision (pdf), U.S. District Judge Donald Molloy cited the court’s lack of authority to put only a portion of an endangered species’ population under state management. He reasoned that “the District Court is still constrained by the ‘rule of law.’ No matter how useful a course of conduct might be to achieve a certain end, no matter how beneficial or noble the end, the limit of power granted to the District Court must abide by the responsibilities that flow from past political decisions made by the Congress. The law cannot be ignored to accommodate a partial settlement. The rule of law does not afford the District Court the power to decide a legal issue but then at the behest of some of the litigants to reverse course and permit what the Congress has forbidden because some of those interested have sensibly, or for other reasons, decided to lay a dispute to rest.” The opinion also explained that the court couldn’t approve the settlement because not all parties involved in the litigation agreed with it.

The proposed settlement would have allowed 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 have remained in place in Wyoming and portions of Oregon, Washington and Utah. The settlement was an attempt to end ongoing litigation over Molloy’s August 2010 decision that 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.

In addition, according to the Seattle Times, the budget bill currently pending before Congress includes a provision that would take the gray wolf off the endangered species list in Montana, Idaho, Washington, Oregon and Utah. The bill requires the Obama administration to lift ESA protections for the gray wolf within 60 days. Under the proposed bill, ESA protections would remain in place in Wyoming.
 

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In response to a petition to list the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered and designate critical habitat under the Endangered Species Act, the National Marine Fisheries Service issued a finding (pdf) that "the petition presents substantial scientific information indicating the petitioned actions may be warranted."  The petition (pdf) was filed by the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.  NMFS is soliciting information pertaining to the species and its habitat until June 13, 2011.

NMFS previously defined an evolutionarily significant unit (ESU) of Chinook salmon to include all spring-run and fall-run populations from the Trinity River and the Klamath River upstream from the confluence of the Trinity River.  This ESU is referred to as the Upper Klamath and Trinity Rivers Chinook salmon ESU.  The petition focuses on the status of the spring-run population as the basis for listing.

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The New York Times recently reported that, in an effort to offset the rising costs associated with the review of federal listing petitions, which must be acted on pursuant to statutorily mandated deadlines set forth in the federal Endangered Species Act ("ESA"), the U.S. Fish and Wildlife Service ("Service") has requested that Congress impose a cap on funds that can be spent responding to ESA listing petitions.  (The New York Times, 3/24/2011, by Lawrence Hurley.)  In the past, environmental groups have been quick to challenge the Service's failure to comply with the statutorily mandated deadlines in court.  The Department believes that a cap would dissuade such lawsuits in the future, as the Service could assert a futility defense:  that is, there simply is no funding to complete the review.  As noted in the recent report by The New York Times, environmental groups have criticized the proposal, asserting that if the Service believes it does not have sufficient funds to address the increasing number of listing petitions, the Service should simply request additional resources from Congress.

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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.

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On March 13, 2011, it was reported that the U.S. Fish and Wildlife Service (“Service”) is authorized to prepare a new proposed rule and proposed critical habitat for the Gunnison sage-grouse (Centrocercus minimus). This news follows a September 27, 2010 decision (PDF) by the Service that, although the Gunnison sage-grouse warrants protection under the Endangered Species Act (“ESA”), protection would be delayed while the Service addressed the needs of other high priority species.

The Gunnison sage-grouse is a small ground bird with speckled plumage and an ornate mating ritual.  The historic distribution of the species included southwestern Colorado, southeastern Utah, northeastern Arizona, and northwestern New Mexico.  Today, there are approximately 5,000 breeding individuals in seven separate populations in southwestern Colorado and southeastern Utah.  The largest of those populations consists of about 4,000 birds inhabiting the Gunnison Basin.  Predation and the fragmentation and loss of habitat due to human activity are among the primary factors contributing to the bird’s declining populations.

If the Service decides to list the Gunnison sage-grouse, it will mark the end of a decade-long effort to list the species under the ESA. The Gunnison sage-grouse was originally placed on the candidate species list in January 2000 shortly before the Service received a petition (PDF) to list the species. Now that resources have become available and it has approval, the Service will prepare a proposed rule using data about the species and its habitat.  After publication of the proposed rule in the Federal Register and a 60-day public comment period, the Service will have one year to make a final decision whether to list the Gunnison sage-grouse as threatened or endangered.  It was reported that the Service would designate critical habitat at the same time it issued a listing decision.

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The Department of Fish and Game (“DFG”) is now accepting comments on a proposal to add northern and southern variants of the mountain yellow-legged frog to the endangered species list under the California Endangered Species Act ("CESA"). The proposal comes as a result of a petition by the Center for Biological Diversity submitted in 2010.  Comments received on the proposal by March 18, 2011 will be included in a status evaluation report that DFG plans to submit to the Fish and Game Commission ("Commission") addressing existing threats to the species and the effectiveness of current regulations regarding the species.  The report is due to be completed at or before the September 2011 Commission meeting. 

The mountain yellow-legged frog occurs in the southern Sierra Nevada and mountains of southern California. The species' habitat includes sunny riverbanks, meadow streams, isolated pools, and lake borders in the Sierra Nevada and rocky stream courses in southern California. Currently, the Fish and Wildlife Service lists the southern California species as endangered under the federal Endangered Species Act ("ESA").  The northern variant is listed as a candidate species.

All comments on the state listing proposal must be received by DFG by 5:00 p.m. on Friday, March 18, 2011. The public will also have a 30-day comment period after issuance of the report in September.

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The Fish and Wildlife Service (“Service”) recently announced  (pdf) a proposed rule to reclassify the wood bison (Bison bison athabascae) from endangered to threatened under the Endangered Species Act (“ESA”). After completing a 12-month status review, the Service found that threats still affect the wood bison, with the largest threat being the loss of habitat caused by agricultural development, the presence of diseased wood bison and cattle herds on habitat that could be restored with disease-free herds, and the commercial production of plains bison in historical wood bison habitat. However, the Service found that these threats were not of sufficient imminence, intensity, or magnitude to indicate that the wood bison is presently in danger of extinction given the increase in the number of herds and population sizes, the ongoing management of the species, and protections provided by law. They therefore found that the wood bison is not endangered. Because threats to the wood bison still exist, however, the Service determined that the reclassification of the wood bison from endangered to threatened was warranted.

The wood bison is a relative of the American plains bison. Historically, the wood bison occupied Canadian ranges north of the plains bison. All wild wood bison presently are found in northwestern Canada. While woods bison populations were once estimated at about 168,000, the subspecies was nearly eliminated by the late 1800s. Like the plains bison, overharvest is estimated to be the major cause for the wood bison’s decline.

ESA section 4(f) generally directs the Service to develop and implement recovery plans for endangered and threatened species, but no such plan has been instituted for the woods bison because no wild populations currently exist in the United States. However, in Canada, the National Wood Bison Recovery Team (“NWBRT”) published a national recovery plan. This plan established four primary goals: (1) reestablish at least four discrete, free-ranging, disease-free, and viable populations of 400 or more wood bison in Canada; (2) foster the restoration of wood bison in other parts of their original range and in suitable habitat elsewhere; (3) ensure that the genetic integrity of wood bison is maintained without further loss as a consequence of human intervention; and (4) restore disease-free wood bison herds.

In 1978, there was only one free-ranging, disease-free herd with 300 individuals. However, a status review in 2000 revealed that the number of disease-free herds had increased to six, and the total population had grown to approximately 2,800 individuals. Since 2000, an additional disease-free, free-ranging herd has been established, bringing the total number of herds to seven and the total number of disease-free, free-ranging wood bison to approximately 4,400. Four of the seven existing herds have populations of 400 or more, thus meeting the NWBRT’s first recovery goal. There are also four captive herds that have been established, though only three of those herds are currently viable.

The NWBRT previously petitioned the Service to reclassify the wood bison from endangered to threatened on November 26, 2007. After issuing a 90-day finding  (pdf) concluding that the petition presented substantial scientific and commercial information indicating that reclassification may be warranted, the Service initiated a status review. The proposed reclassification of the wood bison constitutes the Service’s 12-month finding on the petition to reclassify. The Service is seeking public comments on the proposed rule. Written comments must be received by April 11, 2011, and written requests for a public hearing must be received by March 25, 2011.

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The Fish and Wildlife Service (“Service”) is facing a court-ordered January 31 deadline to decide whether to propose recommending the Pacific walrus for the endangered species list under the Endangered Species Act (“ESA”). Earlier this month, the federal Marine Mammal Commission (“Commission”) issued a letter (PDF) to the Service recommending that it list the species as threatened. The Commission, which oversees marine mammal conservation policies carried out by federal regulatory agencies, cited loss of sea ice habitat as the most significant threat to the species’ population: “Without question, the warming of the Arctic is destroying, modifying, and curtailing walrus habitat and will continue to do so in the foreseeable future.” The Commission explained that the walrus relies on sea ice for foraging and giving birth. Further, the loss of sea ice will likely change the physical characteristics of the marine ecosystem in ways that may be detrimental to walruses. For example, Commission Vera Alexander, quoted in the Juneau Empire, states that without their ice platform, walrus cannot reach the best foraging areas; "[t]he nearshore assemlage of oragnisms is not useful for them." The species may also be subject to possible secondary threats including diseases, parasites, and predation. Meanwhile, the only significant direct take of walruses by humans is for subsistence purposes.  According to the Commission, current harvest levels may not be sustainable.  Finally, the Commission stated that environmental changes occurring in the Arctic are opening the region to an increase in human activity, such as oil and gas development, increased commercial shipping, and tourism that may lead to an additional and significant impact on walruses. The Commission concluded that the current regulatory regime is not sufficient to deal with the range of significant threats facing the population now and in the foreseeable future.

The possible listing recommendation comes as the result of a February 2008 petition by the Center for Biological Diversity to list the walrus as threatened or endangered. 

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The U.S. Fish and Wildlife Service (“Service”) recently announced that it will conduct in-depth status reviews for six California species currently listed as threatened or endangered under the Endangered Species Act (ESA). The Service published (PDF) a 90-day finding in the Federal Register on January 19, 2011, concluding that a petition filed by Pacific Legal Foundation presented substantial scientific information indicating that delisting or reclassifying the species was warranted.

Pacific Legal Foundation petitioned the Service to delist the Eureka Valley evening primrose (Oenothera californica (avita) subsp. eurekensis) and Eureka Valley dunegrass (Swallenia alexandrae). The petition also requested that the Service reclassify the tidewater goby (Eucyclogobius newberryi), San Clemente Island broom (Lotus dendroideus var. traskiae), San Clemente Island bush mallow (Malacothamnus clementinus), and San Clemente Island Indian paintbrush (Castilleja grisea) from endangered to threatened. The petition was based on the analysis and recommendations contained in the Service’s most recent 5-year reviews of the species, which were completed in 2007.

Under the ESA, when a private individual or organization petitions the Service to list, delist, or change the status of a species, that triggers a 90-day period within which the Service must decide whether the action is supported by substantial information. Upon finding that a petition presents substantial information, within 12 months of receiving the petition, the Service conducts an in-depth review of the status of each species. The 12-month finding will determine whether delisting or reclassifying any of the six species is warranted.

The ESA also requires that the Service conduct status reviews of listed species at least once every 5 years. The Service has elected to conduct these 5-year reviews simultaneously with the 12-month status review triggered by its finding of substantial information in support of the proposed actions.

The Service’s notice announcing the reviews opened a 60-day comment period. Comments will be accepted until March 19, 2011. To ensure that review of the 6 species utilizes the best scientific and commercial data available, the Service is soliciting information about the status of the species.

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On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as endangered.  Center for Biological Diversity v. Salazar, No. 1:08-cv-2133 (D.D.C.).  The federal government's brief attached an explanation and analysis prepared by FWS.  In its memorandum, FWS said the ESA does not provide any quantitative measures for distinguishing between species that are threatened or endangered but FWS has generally relied on four criteria to determine whether a species qualifies as endangered.  The four criteria are: (1) the species is facing a catastrophic threat with an imminent and certain risk of extinction, (2) due to limited range or population size the species is vulnerable to extinction, (3) a species that was previously widespread has been reduced to critically low numbers or restricted ranges, and (4) a species that is still widespread has suffered ongoing reductions in its numbers or range as a result of factors that have not been abated.  FWS then stated the guidance provided by these four factors is not binding because listing determinations also require consideration of individual species characteristics.  As to the polar bear, FWS' memorandum argued it is not endangered because it is not currently on the brink of extinction since its present condition is stable or increasing in most of the populations for which data is available, and declining slightly in a minority of such populations.  "Overall, both its range and its numbers were relatively constant.”  The Plaintiffs have until January 18 to file a responsive brief and the court will decide the case thereafter.

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The Fish and Wildlife Service recently published an updated list of plant and animal species native to the United States that are candidates for listing as threatened or endangered species under the Endangered Species Act.  The list, referred to as a Candidate Notice of Review or CNOR, is published periodically by the Service.  A press release announcing the release of the CNOR is available here.  Each species on the list is assigned a listing priority number (or LPN) based on its status and threats.  The CNOR includes five new candidates, changes the LPN for four existing candidates, and removes one species from candidate status.  The CNOR contains a total of 251 species.

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On November 2, 2010, the U.S. Fish and Wildlife Service (FWS) listed (PDF) the Georgia pigtoe mussel, the interrupted rocksnail and the rough hornsnail as endangered under the Endangered Species Act (ESA) and designated 160 miles of stream and river channels as critical habitat for the three species in Georgia, Alabama and Tennessee. The listing followed FWS’s determination that the species have experienced a significant curtailment in their freshwater habitats. FWS attributes the habitat loss to fragmentation and isolation of free-flowing rivers and tributaries, as well as increased vulnerability to water quality and habitat degradation.

FWS also proposed protection (PDF) for the rayed bean and snuffbox mussels, seeking comments from the scientific community and the public prior to finalizing the listing rule. Mississippi’s Bay Springs salamander, however, was denied protection (PDF) based on FWS’s determination that it is extinct. These species, as well as the pigtoe mussel, interrupted rocksnail and the rough hornsnail, are threatened by degradation of freshwater habitat due to dams, urban sprawl, and industrial and agricultural pollution.

Litigation surrounding the species may have prompted FWS’s actions; last February, the Center for Biological Diversity filed suit against FWS for failure to protect over 90 species, including the Bay Springs salamander. Critics assert that, despite its belief that the salamander is extinct, FWS should have listed the species to stimulate further surveys of the population since it is possible that some individuals remain.

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The U.S. Fish and Wildlife Service (“Service”) published a proposed rule (PDF) this week to reclassify the spikedace and loach minnows from threatened to endangered under the federal Endangered Species Act (“ESA”). The proposed rule also designates approximately 796 miles of streams and rivers in central and eastern Arizona and western New Mexico as critical habitat for the two fish.

Both the spikedace and the loach minnow are small fish that measure fewer than three inches in length. They inhabit shallow water in perennial streams. According to the Service, prolonged drought, anticipated effects of climate change, increasing abundance, and the expanding range of competitive and predatory nonnative fishes have increased the threat of extinction for both species. The proposed re-designation of critical habitat is the result of court challenges and a General Inspector audit of the 2007 rule. As for the reclassification, the Service had actually determined that listing the species as endangered was warranted in 1994, but reclassification was precluded by other higher priority listing actions.

The original listing rules, 2007 critical habitat rule, current habitat proposal, and recovery maps are available on the Service’s website. The public may submit comments on the proposed rule and relevant scientific and commercial information to the Service until December 27, 2010.
 

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On October 19, 2010 the San Francisco Superior Court issued an order requiring the California Fish and Game Commission (Commission) to reconsider its determination that the American pika is not threatened with extinction.  Center for Biological Diversity v. California Fish & Game Comm'n, No. CPF-090509927 (San Francisco Superior Court).

In 2008, the Center for Biological Diversity (CBD) filed a petition to list the pika as threatened under the California Endangered Species Act (CESA).  CBD argues that the pika is threatened with extinction because climate change in the form of increasing average temperatures in California's eastern Sierra Nevada mountain range has reduced the pika's alpine habitat by driving the pika, a species especially sensitive to ambient temperatures, to move to higher, cooler elevations.  As its habitat has shrunk, its population has declined.

The petition is part of CBD's and other environmental organizations' ongoing effort, previously blogged about here, to convince state and federal wildlife agencies to list species as threatened or endangered due to climate change.  Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range. If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere.

Thus, any refinery in California, e.g., could become subject to CESA regulations protecting pika hundreds of miles away. See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

As blogged about here, the Fish & Wildlife Service recently determined that listing of the pika under the federal Endangered Species Act is not warranted, despite predicted increases in the average ambient temperatures in the pika's range.  In determining that listing of the Mohave ground squirrel may be warranted, it did not agree with the petitioners there that climate change can be identified as a significant factor because it does not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."

However, the Fish & Wildlife Service has recently listed the African penguin as endangered, due, in part, to climate change.  It is also in the process of determining whether listing is warranted for Whitebark pine, and the National Marine Fisheries Service is considering the impacts of climate change and other factors on 82 species of stony coral.

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The Fish and Wildlife Service (“Service”) announced yesterday that the Sacramento splittail, a fish endemic to California's Central Valley, does not warrant protection under the Endangered Species Act, stating that the best available science shows no recent decline in the overall abundance of the species nor threats that rise to the level of being significant to the splittail at the population level.

This decision marks the conclusion of a seven year controversy between politicians and scientists that began when the Service removed the fish from the threatened species list, overruling Service biologists recommendation to the contrary.  Julie MacDonald, a former Deputy Assistant Secretary in the Department of the Interior, was heavily involved in delisting the Sacramento splittail.  Later it was found that MacDonald owned an 80-acre farm in the splittail’s habitat, which has a range that centers on the San Francisco Estuary (see earlier post).

While biologists favored listing the Sacramento splittail as threatened in 2003, counting populations of the fish by using straight surveys, scientists now say that natural fluctuations of population numbers demonstrate a pattern of successful spawning during wet years followed by reduced spawning during dry years.  Further, the Service reports that a number of habitat restoration actions benefiting the splittail are underway including species enhancement conservation measures, creation of new seasonal floodplains, and new state fishing regulations limiting the take of splittail. The Sacramento splittail is also one of the species targeted for protection under the proposed multi-agency Bay Delta Conservation Plan.

Still, environmental groups are not happy with this decision, claiming the Service’s conclusions are “outrageous” and scientifically unjustified.  Some argue that the Service’s decision regarding the species is politically charged: "Including it on the list would add a layer of complication to an already dizzying set of issues in the Delta, where a biological collapse is putting pressure on water supplies statewide,” says Mike Taugher with the Contra Costa Times.  The Center for Biological Diversity has indicated it plans to take the Service to court to press for a reversal of the decision. 

The Service’s finding is expected to be published in the Federal Register on October 7, 2010.

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In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule (PDF) effective October 28, 2010 listing the African Penguin as "endangered" under the Endangered Species Act.  Unlike its prior listing decision for five other species of penguins, in this instance, the Fish and Wildlife Service has determined that climate change contributes to the threats facing the species "through rising sea levels, increasing sea surface temperatures, declines in upwelling intensities, predicted increases in frequency and intensity of El Niño events in the Benguela marine ecosystem, and predicted increases in sulphide eruptions."

Because the species is not native to the United States, no critical habitat will be designated for the African Penguin.  Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on African penguins.  This requirement is especially significant where, as here, the Service finds that climate change is contributing to a listed species' decline.  Because greenhouse gas (GHG) emissions anywhere may contribute to global climate change, it can be argued, for example, that the Environmental Protection Agency must consult with the Service when promulgating regulations under the Clean Air Act, or even when issuing individual Clean Air Act permits that may result in substantial increases in GHG emissions.

The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.  Finally, listing results in the prohibition of the import or export of any of the species, or their parts or products, as well as their sale in interstate or foreign commerce.

Under the terms of the settlement agreement, the Service must issue a final rule regarding listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.  Notably, the Service previously determined that listing is not warranted for two species of penguin.  In a recent press release regarding the African penguin final rule, the Center for Biological Diversity states that "The Center and TIRN [the Turtle Island Restoration Network] plan to file suit against [the Department of the] Interior for denying listing to emperor and northern rockhopper penguins despite scientific evidence that they are jeopardized by climate change and commercial fisheries."

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On October 1, 2010, the California Fish and Game Commission declared the mountain yellow-legged frog a candidate species (PDF) as defined by section 2068 of the Fish and Game Code.  The Commission accepted the petition to list the mountain yellow-legged frog as endangered at its September 15, 2010 meeting.  The Center for Biological Diversity previously submitted (PDF) a petition to the Commission to list the mountain yellow-legged frog as endangered on January 27, 2010.  The Commission transmitted the petition to the California Department of Fish and Game for review.

The mountain yellow-legged frog consists of two species.  The southern mountain yellow-legged frog (Rana muscosa) is native to the southern Sierra Nevada and the Transverse Ranges.  The Sierra Nevada mountain yellow-legged frog (Rana sierrae) is native to the northern and central Sierra Nevada.  Though once abundant in their respective habitats, re-surveys of historic locations (PDF) show that 95.2% of R. muscosa and 93.3% of R. sierrae populations are locally extinct.  Now that the Commission has declared the mountain yellow-legged frog a candidate species, the Department of Fish and Game must submit a written report within one year indicating whether listing the species is warranted.

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On Wednesday, September 22nd, Sens. Mike Crapo and Jim Risch of Idaho introduced SB 3825 (.PDF), which would remove the Rocky Mountain gray wolf from the list of threatened or endangered species under the Endangered Species Act (ESA) in the states of Idaho and Montana.  The proposed legislation, titled the State Wolf Management Act of 2010, is intended to turn wolf management over to the states to promote certainty among citizens, hunters, and sheep and cattle ranchers.  The bill was introduced in response to a federal court’s ruling in early August, which put gray wolves in Idaho and Montana under the protection of the ESA.

In Defenders of Wildlife v. Salazar (.PDF), plaintiffs asserted, among other things, that the U.S. Fish and Wildlife Service (FWS) had violated the ESA by de-listing the gray wolf in the states of Montana and Idaho while leaving federal protections in place for wolves in Wyoming.  In ruling in favor of the plaintiffs, Judge Donald Molloy held that the FWS had violated the ESA by only listing distinct population segments of the gray wolf as endangered.  The court found that the ESA mandates that the entire region’s wolf population be listed as an endangered species, rather than the wolf’s status being different from state to state.  The court’s ruling reinstated the federal protections on the gray wolf in all three states until Wyoming brings its wolf management into alignment with Idaho and Montana.

Idaho and Montana have successfully restored the wolf population within their borders in recent years, and the proposed legislation reflects the position that the states can manage the wolves in a sustainable and responsible way.  The increase in the wolf population has brought livestock losses for ranchers, and, according to the Billings Gazette, the bill would enable Idaho and Montana to reinstate a wolf hunting quota to help manage the wolf population.  The bill would require the Department of the Interior to de-list the gray wolf in Idaho and Montana, as well as in limited portions of Washington, Oregon and Utah, within one year.  The bill is currently before the Senate Committee on Environment and Public Works.
 

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On Monday, September 27, 2010, the U.S. Fish and Wildlife Service issued its determination that the Gunnison sage-grouse warrants listing under the Endangered Species Act, but that proposing that it be listed as threatened or endangered be postponed while the Service addresses the needs of higher priority species.

Historically, the Gunnison sage-grouse occupied southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona.  But according to the Fish and Wildlife Service, its range has been reduced to seven separate populations in southwestern Colorado and southeastern Utah (pdf).  Of the approximately 4,500 breeding Gunnison sage-grouse, some 3,900 inhabit the Gunnison Basin in Colorado.

In 2006, the Service determined that listing was not warranted.  An ensuing legal challenge resulted in a consent decree in which the Fish and Wildlife Service agreed to undertake a 12-month status review.  The September 27, 2010 "warranted-but-precluded" finding is the outcome of that 12-month status review.

Now that the Gunnison sage-grouse has been added to the list of candidate species, the Fish and Wildlife Service must review its status annually.  Currently, landowners in Colorado may voluntarily undertake conservation measures under the terms of a "Candidate Conservation Agreement with Assurances" (CCAA) issued to the Colorado Department of Wildlife by the Fish and Wildlife Service.  Under the terms of the CCAA, landowners who undertake specified conservation measures receive assurances that if and when the species is formally listed, the federal government will not place additional new restrictions on the use of their property for the protection of the sage-grouse.

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The U.S. Fish and Wildlife Service recently made a 90-day finding (PDF) that a petition to list the plant species Arctostaphylos franciscana presents substantial scientific or commercial information indicating that listing this species may be warranted.  Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family that is endemic to the San Francisco peninsula in California.  The species was presumed extinct since 1947 when it was last seen in the wild, but, in October 2009, an ecologist identified a plant growing in a concrete-bound median strip along Doyle Drive in the Presidio (a former army post located in San Francisco) as Arctostaphylos franciscana.

Soon after discovery of the individual specimen of the species in October 2009, the Wild Equity Institute, the Center for Biological Diversity, and the California Native Plant Society petitioned (PDF) for its listing as endangered on an emergency basis.  At the same time, they asked the Service to proceed to designate critical habitat for the species under the Act.

The Service is seeking input to inform its review on or before October 12, 2010.

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In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule on August 3, 2010 listing five species of penguins as "threatened" under the Endangered Species Act.  Specifically, the Service determined that the yellow-eyed, white-flippered, Fiordland crested, Humboldt, and erect-crested penguins are likely to become in danger of extinction within the foreseeable future.

None of the five species is native to the United States, and therefore no critical habitat is designated for the listed species.  Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on listed penguins.  The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.

Some contend that anthropogenic climate change is a major threat to the survival of the penguins.  While the Service acknowledged that the evidence of warming of the climate system is unequivocal, it concluded that the best available information does not indicate how increased sea level rise, ocean warming, or ocean acidification may affect the five penguin species.   Instead, the Service determined that other threats such as predation by introduced species, habitat loss, overfishing, unregulated ecotourism, and El Niño events were responsible for the population declines.

Under the terms of the settlement agreement, the Service must issue final rules regarding listing of the African penguin by September 30, 2010, and listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.

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In an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here,  to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post, Fish and Wildlife Service's to Review Prospect of Listing Whitebark Pine Due to Climate Change, the Service recently announced a 90-day finding that listing the whitebark pine as endangered or threatened due to climate change may be warranted.  In addition, the Fish and Wildlife Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  But the Fish and Wildlife Service declined to list the American pika as endangered or threatened due to climate change.

As Mr. Woody notes in his article, these listing decisions have been spurred by petitions and lawsuits filed by several environmental organizations with the aim of not only protecting the species from extinction, but utlimately requiring the Services to require emitters of GHG to reduce or mitigate their emissions.  But, so far, the utimate aim has been frustrated by resistance from both the Bush and Obama Administrations and doubts about the validity of the legal theory underlying the overarching strategy.

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The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted.    The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008.  It filed a lawsuit in March 2010 to force the Service to act on the listing petition.  In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine.  According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by climate change, including being attacked by mountain beetles that are now capable of moving to higher elevations due to rising temperatures.   

The Service's decision initiates a 60-day period for the public to provide information on the status of the species.  After the Service has conducted its status review, it will issue a 12-month finding on the petition, which will address whether listing is warranted.  The Service's 90-day finding does not necessarily mean that the Service's 12-month finding will result in a "warranted" conclusion because the 12-month finding is based on a more rigorous "best scientific and commercial data" standard. 

The Service's decision is one of several recent listing decisions involving climate change.  The Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  However, the Service declined to list the American pika as endangered or threatened due to climate change. 

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On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 Fed. Reg. 77,303, and 73 Fed. Reg. 77,332 (PDF).)

The Center for Biological Diversity (CBD) and Turtle Island Restoration Network (TIRN) sued to compel the Service to take final action on the proposed rules after it failed to take action within a year of the proposed rulemakings as required under the Endangered Species Act.  According to CBD, "[w]arming oceans, melting sea ice, and fishery harvests have wreaked havoc on penguins’ food supply: Krill, an essential nutrient for penguins, whales, and seals, has declined by up to 80 percent since the 1970s over large areas of the Southern Ocean." 

If the Service adopts the three proposed rules, the African, yellow-eyed, white-flippered, Fiordland crested, Humboldt, erect-crested, and a distinct population segment of the southern rockhopper penguins will receive protection under the Act.  Section 7(a) of the Act and  implementing regulations require federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened.

CBD and TIRN have threatened to bring suit to compel the Service to list the emperor and northern rockhopper penguins, which had been included in the 2006 listing petition.

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The Fish and Game Commission announced a change in its hearing date and location regarding listing the California tiger salamander as threatened under California's Endangered Species Act.  The hearing will now be a teleconference meeting held on Thursday, May 20, 2010 at 9:30 a.m. at the Commission Conference Room in Sacramento.  Locations where the public may participate are provided in the Commission's notice (PDF). 

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The Fish and Wildlife Service announced (PDF) that it is initiating a 12-month status review of a petition to list the Hermes copper butterfly (Hermelycaena [Lycaena] hermes) as a threatened or endangered species under the Endangered Species Act and to designate critical habitat.  Hermes copper butterflies are known to range from Fallbrook, California, in northern San Diego County to 18 miles south of Santo Tomas in Baja California, Mexico, and from Pine Valley in eastern San Diego County to Lopez Canyon in western San Diego County.  The species inhabits coastal sage scrub and southern mixed chaparral and is dependent on its larval host plant, Rhamnus crocea (spiny redberry), to complete its lifecycle.

The decision to review the butterfly is the result of a 90-day finding (PDF) by the Service indicating listing may be warranted.  Twice previously interested parties unsuccessfully petitioned to have the species listed, in 1991 and 2004.  Last year, the Center for Biological Diversity challenged the Service’s negative finding on the 2004 petition and, in October, reached a settlement agreement with the Obama administration whereby the Service agreed to review the petition again and to look at all new information about the butterfly and its habitat that has become available since the not substantial finding in 2006.

The Service is soliciting information about the butterfly and its habitat from interested parties for its 12-month status review.  Information must be received on or before July 6, 2010 and may be submitted to either:  Federal eRulemaking Portal: http://www.regulations.gov (search for docket FWS-R8-ES-2010-0031 and then follow the instructions for submitting comments); or by U.S. mail or hand-delivery addressed to Public Comments Processing, Attn: FWS-R8-ES-2010-0031; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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Almost five years after receiving a listing petition, yesterday, the United States Fish & Wildlife Service finally issued its 90-day petition finding for the Mohave ground squirrel (Xerospermophilus mohavensis), finding that "listing may be warranted."  

The listing petition was jointly filed by the Defenders of Wildlife and Dr. Glenn R. Stewart on September 5, 2005.  Although the Endangered Species Act contemplates that the Fish & Wildlife Service will issue a 90-day petition finding within 90 days of receiving a petition, approximately six months after receiving the petition for the Mohave ground squirrel, the Service explained in a letter to petitioners that it would not be able to address the petition because 2006 listing funds had already been allocated.  Without further explanation, the Fish & Wildlife Service failed to act on the listing petition for the next three years. 

In 2010, however, the Fish & Wildlife Service finally addressed the petition, and determined that based on the information in the petition and the information in its files, "listing the Mohave ground squirrel may be warranted due to destruction, modification, or curtailment of the species' habitat or range."  In support of this conclusion, the Fish & Wildlife Service found that numerous activities were potentially impacting the Mohave ground squirrel's habitat, including urban and rural development on public and private lands, military activities at Fort Irwin, livestock grazing, and transportation activities. 

Petitioners had also asserted that because there is a positive correlation between rainfall and survival of the Mohave ground squirrel, decreased precipitation due to climate change was adversely affecting the ground squirrel's habitat.  The Fish & Wildlife Service did not find this assertion persuasive, however, explaining that while it agreed that there would be an overall decrease in precipitation due to climate change, it did not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."    

Having found that listing of the Mohave ground squirrel may be warranted, the next step for the Fish & Wildlife Service is to make a 12-month finding on whether listing of the species is warranted.

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The Fish and Wildlife Service announced (PDF) today that it will accept comments through May 20, 2010 regarding a status review of the Sacramento splittail (Pogonichthy macrolepidotus), a fish endemic to lower-elevation waters of the Central Valley of California.  Based on the status review, the Service will issue a 12-month finding by September 30, 2010 that will address whether listing the species may be warranted under the Endangered Species Act (ESA).  If warranted, the Service will also publish, concurrently with the 12-month finding, a proposed rule to list the Sacramento splittail and a final determination on or before September 29, 2011.

The status review and 12-month finding are the result of a settlement agreement with the Center for Biological Diversity, which filed a complaint (PDF) in federal court against the Service in August 2009.  The complaint challenged the Service’s removal of the Sacramento splittail from the ESA threatened species list and alleged improper political influence by a former Department of the Interior official.  The Sacramento splittail had been listed as threatened in 1999, but the Service removed (PDF) it from the list in 2003 after an earlier court decision found the listing decision to be unlawful.

Interested parties may submit comments regarding the status review to the Service by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS–R8–ES–2010–0013 and then follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R8–ES–2010–0013; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

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The California Fish and Game Commission provided notice (PDF) that it will be holding a hearing in Stockton on Wednesday, May 5, 2010 at 8:30 am to take comments on the listing of the California tiger salamander to the list of threatened animals pursuant to the California Endangered Species Act.  The Department of Fish and Game submitted a status review (PDF) of the California Tiger Salamander to the Commission on January 11, 2010.

As detailed in the notice, written comments are requested to be submitted on or before April 30, 2010, but must be received no later than 5:00 p.m. on May 3, 2010.  All comments must be received no later than May 5, 2010 at the hearing in Stockton. 

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The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be making a critical habitat determination and considering the need for protective regulations.  As for the immediate future, the listing determination will require federal agencies to consult with NMFS on any federal action that may result in jeopardy to the pacific smelt.    

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Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse.  On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA").  This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species.  As discussed in a previous post, Western Watersheds filed a complaint challenging the 2005 determination, and in 2007, the federal district court reversed the Service's determination and remanded the matter to the Service. 

The supplemental complaint (PDF) filed by Western Watersheds alleges, in part, that the Service's justification for its warranted but precluded finding for the greater sage grouse is arbitrary and capricious because the Service has not made "expeditious progress" in listing species under the ESA.  According to the supplemental complaint, between 1974 and 2000, the Service listed approximately 45 species per year, but between January 2001 and March 2005, the Service listed only 30 species in total, an average of seven species per year.  The complaint also alleges that the Service only listed one species during fiscal year 2009. 

As previously discussed, while a candidate species is not protected under the ESA, the Bureau of Land Management ("BLM") has issued guidance (PDF) that may have impacts on wind and solar development as well as oil and gas leasing on BLM lands that impact the species.

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co-authored by Robert Thornton

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and fragmentation of sagebrush habitats due to conversion for agriculture, urbanization, infrastructure, grazing, and nonrenewable and renewable energy development.  If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction.  The Service plans "to continue to work cooperatively with private landowners to conserve the candidates species.  This includes financial and technical assistance, and the ability to develop conservation agreements that provide regulatory assurances to landowners who take actions to benefit the species." 

The Bureau of Land Management ("BLM"), which manages the majority of greater sage grouse habitat, has issued guidance (PDF) to address actions in "priority" sage grouse habitat.  For example:

• BLM will re-route proposed transmission projects to avoid priority habitat;
• For new oil shale lease applications, BLM may impose lease stipulations and project conditions of approval that designate avoidance areas;
• New right-of-way applications for wind and solar energy development may be denied or terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by analysis under the National Environmental Policy Act. 

BLM has also issued a FAQ. 

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Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada.  The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine." 

The whitebark pine listing petition is one of several recent petitions seeking protection under the ESA due to the threat that climate change poses to the species.  The Service recently declined to list the American pika as endangered or threatened due to climate change.  But last month the National Marine Fisheries Service determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. 

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In a 3-2 vote, the California Fish and Game Commission ruled yesterday that the California tiger salamander will be protected as a threatened species under the State’s Endangered Species Act.  The Commission had previously denied the listing twice, and was ordered by the State Court of Appeals to reconsider the issue after the Center of Biological Diversity filed suit in 2004.  The Commission made the decision after finding that the species’ habitat, roughly 400,000 acres in Central California, is threatened by future development.

This decision is anticipated to affect landowners in the Central Valley including farmers and developers who will face additional restrictions on activities in areas that are occupied by or provide suitable habitat for the species. While opponents to the listing decision argue that the population counts for the species are inaccurate and projected development on rural land is exaggerated, Commission members respond that their decision is supported by the scientific community.

Three distinct population segments of the California tiger salamander were listed under the federal Endangered Species Act in 2000 (PDF), 2002 (PDF), and 2004 (PDF) by the Fish and Wildlife Service.  Its breeding and estivation habitat includes vernal pools, ponds, and upland areas in grassland and oak savannah plant communities.

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Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF), the Ninth Circuit's most recent decision respecting the listing determination.  In its decision, the Ninth Circuit reversed a lower court decision upholding the Service's determination to withdraw the proposed rule (for the second time) on the ground that habitat loss did not constitute a significant portion of the species' range and the loss did not result in a likelihood that the species could become endangered in the foreseeable future.  Noting that information concerning population dynamics of the species is limited and inconclusive, the Ninth Circuit faulted the Service for inferring that "the absence of evidence of population decline equates to evidence of persistence."  In a dissent, Judge Noonan questioned the role of the judiciary vis-a-vis the Service where, as here, everyone agrees that there is a high degree of uncertainty.

It's any body's guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary's  conclusion impacted by over-reliance on fragmenting evidence of the lizard's persistence; so the court decides to give the Secretary another crack at the problem.

The listing of the flat-tailed horned lizard will impose restrictions on public and private activities in the lizard's range in the United States, although the species is covered by the Coachella Valley Multiple Species Habitat Conservation Plan, which covers approximately 1.2 million acres of land in Riverside County, California.  Like the potential listing of the Sonoran desert tortoise, this listing could also impact areas identified for solar energy projects in California and Arizona.

The comment period on the proposed listing expires May 3, 2010.  Public hearings are scheduled for March 23, 2010 at the University of California, Riverside and March 24, 2010 at the Radisson Hotel in Yuma, Arizona.  The Service has not proposed the designation of critical habitat at this time.

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Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted.  According to the lawsuit, the Service received a petition to list the tortoise in October 2008.  Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority.  If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service.  Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development. 

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In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the listing of the DPS of the coastal cutthroat trout was not warranted. 

The Service first published a notice of withdrawal (PDF) of proposed listing for the DPS of the coastal cutthroat trout in 2002.  However, after a group of environmental organizations challenged the Service's determination in federal court, the Ninth Circuit found that the Service failed to properly consider whether the estuary and other marine areas constitute a significant portion of the range of the DPS, and therefore ordered the Service to reconsider the withdrawal determination. 

In the notice published late last week, the Service again withdrew the proposed rule to list the DPS of the coastal cutthroat trout, stating:

the threats to coastal cutthroat trout in the marine and estuarine areas of its range within the DPS, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are not likely to endanger the species now or in the foreseeable future throughout this portion of its range. 

It is unclear whether this decision will once more be the subject of litigation.

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As discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on the greater sage grouse by February 26, 2010.  Due to the death of the Service's Director, Sam Hamilton, the Service requested an extension (PDF) until March 5, 2010 to submit its new finding.  The finding to list the greater sage grouse could have implications for those in the oil and gas, wind energy and livestock industries, making their business more difficult across much of the West.

While half of the North American population of the greater sage grouse is believed to be in Wyoming, it also inhabits parts of California.  According to the California Department of Fish and Game, the sage grouse  "is a permanent resident in northeastern California, ranging from the Oregon border along the east side of the Cascade Range and Sierra Nevada to northern Inyo County.  Lassen and Mono counties have the most stable populations."

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The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C.,  Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade.  The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.

The Endangered Species Act requires the Service to make a "12-month finding" on listing petitions within one year of receipt.  The 12-month finding may consist of one of three determinations: 

1. listing is "warranted," and the Service must publish a proposed rule to list the species;
2. listing is "not warranted" and no further action is taken; or
3. listing is "warranted but precluded" by other listing actions of higher priority. 

However, the Service often takes more than a year to make a determination on a listing petition due to the number of petitions it receives, budget constraints, and litigation-imposed deadlines. A few of the species at issue in the lawsuits include the California golden trout, Cactus Ferruginous pygmy owl, Mount Charleston butterfly, Mojave fringe-toed lizard, and Mojave ground squirrel.

Arizona Complaint (PDF)

California Complaint (PDF)

Portland Complaint (PDF)

Washington, D.C. Complaint (PDF)

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On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act “presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.”  See 90-Day Finding (PDF).

If a “threatened” listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of “take” of any such species without an incidental take permit. 

If any of the species are listed as “endangered,” they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from “taking” or “harming” any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted “take” of, or “harm” to species imperiled by climate change.

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Conservation groups hoped to make the American pika  the second mammal besides the Polar Bear, and the first in the lower 48 states, to be listed under the Endangered Species Act as threatened or endangered specifically due to climate change.  But the U.S. Fish and Wildlife Service (Service) determined that listing is not warranted at this time. See Notice (PDF).

The pika is extremely sensitive in increased ambient temperature (several hours above 78° F can be lethal).  But with the exception of certain lower elevation populations in the Great Basin, the Service determined that, within much of its range, the pika can adapt to the predicted 5.4° F increase by 2050 in average surface temperatures by retreating to cooler subsurface habitat during the warmest times of day, and by becoming more active at night and during the cooler early morning and evening hours.  Thus, the Service determined that the pika is neither endangered (i.e., in danger of extinction) nor threatened (i.e. likely to become endangered in the foreseeable future).

Shaye Wolf, a biologist with the Center for Biological Diversity, criticizes the finding as "a political decision that ignores the science and the law."

Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range.  If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere. 

Thus, any refinery in the United States, e.g., could become subject to Endangered Species Act regulations protecting pika hundreds or thousands of miles away.  See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

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