California Fish and Game Commission Delays Listing Decision for Gray Wolf

 The Los Angeles Times reports that the California Fish and Game Commission (Commission) unanimously voted to postpone a decision on whether to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA). As we previously reported, the California Department of Fish and Wildlife recommended in February 2014 that the Commission not list the gray wolf under CESA, determining that the scientific evidence does not warrant listing the species at this time. The issue arose in 2011 when a single wolf, OR-7, was spotted in California for the first time.

The five-member panel delayed the Commission’s decision for 90 days following lengthy public debate at yesterday’s hearing. The Commission will hold an additional hearing to consider the issue in June.

U.S. Fish and Wildlife Service Announces Listing of Lesser Prairie-Chicken

 Yesterday, the U.S. Fish and Wildlife Service (Service) announced (pdf) the final listing of the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA). The Service identified drought and habitat fragmentation as threats to the species, and concluded the lesser prairie-chicken is likely to become endangered in the foreseeable future.

In connection with the final listing decision, the Service also announced a final special rule under section 4(d) of the ESA that will retain some degree of state responsibility for managing the lesser prairie-chicken. Over the past decade, a number of conservation programs have been implemented across the species’ five-state (Texas, New Mexico, Oklahoma, Kansas and Colorado) range, including the 2013 Western Association of Fish and Wildlife Agencies’ (WAFWA) Lesser Prairie-Chicken Range-Wide Conservation Plan. Collectively, these efforts are similar to a recovery plan. 

There had been some fear among landowners that the Service’s listing would have a severe adverse impact on the energy industry and private developers. The Service’s approach is anticipated to provide regulatory certainty for landowners and businesses enrolled in WAFWA’s range-wide conservation plan and the U.S. Department of Agriculture’s Lesser Prairie-Chicken Initiative. The special rule will allow for incidental take of the lesser prairie-chicken associated with: (1) activities conducted pursuant to WAFWA’s Lesser Prairie-Chicken Range Wide Conservation Plan; (2) conservation practices carried out in accordance with a conservation plan developed by the Natural Resources Conservation Service in connection with the Lesser Prairie-Chicken Initiative; and (3) the continuation of routine agricultural practices on existing cultivated lands.

The Service determined that listing critical habitat for the lesser prairie-chicken is prudent, but cannot be determined at this time. The Service has one year from the final listing determination to propose any critical habitat for the species.

U.S. Fish and Wildlife Service Proposes to Reclassify California Toad

On March 27, 2014, the U.S. Fish and Wildlife Service (Service) issued a 12-month finding and proposed rule to reclassify the arroyo toad (Anaxyrus californicus), a species that is believed to exist exclusively in California, from endangered to threatened under the Endangered Species Act.  The 12-month finding and proposed rule were initiated by a petition submitted in 2011 by The Pacific Legal Foundation requesting that the Service delist the Inyo California towhee and reclassify from endangered to threatened the arroyo toad, Indian Knob mountainbalm, Lane Mountain milk-vetch, Modoc sucker, and Santa Cruz cypress.  In the 12-month finding and proposed rule, the Service stated that while "there are still significant threats impacting the arroyo toad currently and into the future . . . , we conclude that the overall magnitude of threats impacting the arroyo toad has decreased since the time of listing, due in part to implementation of conservation and management actions."  The Service cited operation of dams and water diversions, urban development, introduced predator species, and drought as some of the most significant threats to the arroyo toad.  According to the 12-month finding and proposed rule, comments must be received or postmarked on or before May 27, 2014.       

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U.S. Fish and Wildlife Service Lists Two Texas Salamanders as Threatened

The U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing the Georgetown salamander (Eurycea naufragia) and the Salado salamander (Eureycea chisholmensis) as threatened under the Endangered Species Act (ESA). The Service also issued a proposed special rule for the Georgetown salamander under section 4(d) of the ESA, which authorizes the take of protected species in certain instances.

The primary threat to the species is habitat degradation due to declining water quality and disturbance of surface spring sites. According to the Service, urban development prevents the infiltration of surface water through soil, which alters the temperature, pH, and alkalinity of the species’ habitat.

The proposed special rule (pdf) would allow for take of the Georgetown salamander incidental to activities that are consistent with conservation measures contained in a City of Georgetown water quality ordinance. The ordinance seeks to reduce certain threats to the species by requiring, among other things, geological assessments to identify springs and streams on any development site, and the establishment of non-disturbance and minimal-disturbance zones.

The Service will accept comments on the proposed special rule until April 25, 2014.

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U.S. Fish and Wildlife Service Announces Listing of Two Texas Salamanders

The U.S. Fish and Wildlife Service has announced a final rule listing the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eureycea chisholmensis) as threatened species under the Endangered Species Act.  The final rule is scheduled to be published in the Federal Register on Monday.  According to an article by Claire Osborn of the Austin American-Statesman, "Williamson County officials have said the area would lose millions of dollars in development if the salamanders are listed."

National Marine Fisheries Service to Conduct Status Review for Four Cetaceans

Today, the National Marine Fisheries Service (NMFS) announced (pdf) a 90-day finding on a petition to list the Hector’s dolphin (Cephalorhynchus hectori), the Baltic Sea subpopulation of harbor porpoise (Phocoena phocoena), the eastern Taiwan Strait subpopulation of the Indo-Pacific humpback dolphin (Sousa chinensis), and the Fiordland subpopulation of the bottlenose dolphin (Tursiops truncatus) under the Endangered Species Act. The announcement came as a result of NMFS' determination that the petition presented substantial scientific and commercial information indicating that listing may be warranted.
 
NMFS will conduct a 12-month status review of the species to determine whether the best scientific information available supports listing. According to the announcement, NMFS is accepting information and comments on the species through April 22, 2014.

NMFS also stated in the announcement that it had determined that the petition did not present substantial information indicating that listing the Galapagos fur seal (Arctocephalus galapagoensis) is warranted, and declined to take further action with respect to this species.
 

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U.S. Fish and Wildlife Service To Analyze Stakeholder Plan for Lesser Prairie-Chicken

The U.S. Fish and Wildlife Service (Service) announced (pdf) that it will prepare an Environmental Impact Statement (EIS) on a proposed application for an Incidental Take Permit (ITP), including a Habitat Conservation Plan (HCP), under the Endangered Species Act (ESA). The application concerns the lesser prairie-chicken (Tympanuchus pallidicintus), which the Service has proposed to be listed as threatened under the ESA.

A group of stakeholders representing energy, agricultural, and conservation industries and organizations (Stakeholders) submitted the application. If issued, the ITP and HCP would provide sufficient “take” authorization to enable various regional construction, operation, and maintenance activities associated with multiple commercial energy facilities, agricultural activities, and conservation management activities within six states to continue in the event the Service ultimately lists the lesser prairie-chicken.

The HCP will include measures related to take avoidance, minimization of take through best management practices, and mitigation of the impacts of take through habitat preservation, restoration, and enhancement measures. The HCP’s planning area includes the occupied range of the lesser prairie-chicken in five states, including portions of New Mexico, Colorado, Kansas, Oklahoma, and Texas. It also includes areas where the species’ populations could expand with appropriate conservation initiatives, which includes portions of Nebraska.

The Service originally received a petition to list the lesser prairie-chicken in October 1995. In July 1998, the Service determined that listing the species was warranted, but precluded by other higher priority species. In December 2012, the Service published a proposed rule to list the species as threatened.
 

California Department of Fish and Wildlife Recommends Against Listing the Gray Wolf

Yesterday, the California Department of Fish and Wildlife (DFW) recommended that the California Fish and Game Commission not list the gray wolf as endangered under the California Endangered Species Act.  Following a yearlong review, DFW determined that the scientific evidence does not warrant listing the species at this time.  Instead, DFW recommended designating the gray wolf as a species of special concern – which affords the gray wolf some protection, including prohibiting the killing of the species – with a recommendation to consider placing the gray wolf on the endangered species list at a later date.

The recommendation is in response to a petition filed by environmental groups in 2012 to list the species.  As we reported here, the announcement also follows the U.S. Fish and Wildlife Service’s proposal to delist the gray wolf under the federal Endangered Species Act.   

U.S. Fish and Wildlife Service Reopens Public Comment Period for Proposed Special Rule for the Lesser Prairie-Chicken

On January 29, the U.S. Fish and Wildlife Service (Service) announced (pdf) the reopening of the public comment period for a special rule originally proposed on May 6, 2013 that would allow for limited take of the lesser prairie-chicken (Tympanuchus pallidicinctus). As we previously reported, the proposed special rule was revised on December 11, 2013 to include a five-state conservation plan for the species. The proposed special rule allows for take of the lesser prairie-chicken as long as such take is incidental to activities conducted by an individual enrolled in the conservation plan. The special rule is proposed pursuant to section 4(d) of the Endangered Species Act (ESA) and will only be implemented if the lesser prairie-chicken receives ESA protections.
 
Six congressional delegates from Kansas, one of the five states included in the conservation plan, formally requested that the Service extend the comment period. The Service stated that it was reopening the comment period because, when the special rule was revised in December to include the conservation plan, the final version of the conservation plan was not yet widely available to the public. The Service is reopening the comment period to give the public an opportunity to review the plan.

The Service has extended the comment period through February 12, 2014.
 

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National Marine Fisheries Service Proposes Protection for Captive Killer Whale "Lolita" under Endangered Species Act

The National Marine Fisheries Service (Service) recently announced (pdf) a proposed amendment to the regulatory language of the Endangered Species Act (ESA) listing for the Southern Resident killer whale Distinct Population Segment (DPS).  The amendment would remove the language excluding captive members of the population from ESA protection. The Service’s action comes in response to a petition submitted by the People for the Ethical Treatment of Animals to include “Lolita” as a protected member of the DPS. Lolita, the sole captive member of the Southern Resident killer whale DPS, is currently precluded from receiving ESA protection.

The Southern Resident killer whale DPS was listed as endangered under the ESA in 2005. Lolita was collected from the wild in 1970. She is currently located at the Miami Seaquarium in Miami, Florida.
 

Sage Grouse Controversy Continues

As we previously reported, the U.S. Fish and Wildlife Service (Service) has proposed to list the Gunnison sage-grouse (Centrocercus minimus) and the Greater sage-grouse (Centrocercus urophasianus) as endangered and threatened species under the Endangered Species Act, and to designate millions of acres of land as critical habitat for the species.  (See our prior posts on January 23, 2013 and October 29, 2013.)  Because of the controversy surrounding the proposed listings and designations, the Service has extended the comment period on the proposals to ensure that the public has an adequate opportunity to review and comment on the proposed rules.  (See our prior posts on December 19, 2013 and November 13, 2013.)  In an effort to avoid any further action by the Service, a number of State and local agencies are attempting to develop a sage grouse management plan that would avoid the need for listing either of the two species.  (See articles by Heather Sackett on January 5, 2014, post by Mack Cole on January 6, 2014, article by Glenn Oppel on January 8, 2014.)  Only time will tell whether these efforts are successful. 

U.S. Fish and Wildlife Service Affirms Listing of the White Bluffs Bladderpod

The U.S. Fish and Wildlife Service (Service) recently affirmed (pdf) its decision to list the White Bluffs bladderpod (Physaria douglasii subsp. tuplashensis) as threatened under the Endangered Species Act (ESA).  The Service also revised its designation of critical habitat for the plant species to exclude certain private and state lands in Franklin County, Washington.

The Service previously published a final rule to list the species (pdf) and designate critical habitat (pdf) on April 23, 2013.  However, the Service delayed the effective date of these rules in order to accept and consider additional public comments.  In its recent decision, the Service affirmed its listing determination, finding the White Bluffs bladderpod is threatened by wildfire, landslides, recreational activities and off-road vehicle use, nonnative plants, small population size, and limited geographic range.

Critics had challenged the listing by alleging that new information indicated the species is not a distinct subspecies of Physaria douglasii.  The Service, however, determined that the new information is inconclusive and affirmed its decision.

The Service also reevaluated its original designation of critical habitat in response to new public comments and information, including aerial photographs and site visits.  The Service determined that certain areas designated as critical habitat in the prior rule do not meet the statutory definition, and reduced the critical habitat acreage from 2,828 to 2,033 acres.

 

U.S. Fish and Wildlife Service Denies Listing for Rare Orchid

 The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the completion of its status review (pdf) of Coleman’s coralroot (Hexalectris colemanii), a species of orchid found in southeastern Arizona and southwestern New Mexico. The Service determined that listing the orchid as threatened or endangered under the Endangered Species Act (ESA) is not warranted at this time.

The Center for Biological Diversity (CBD) petitioned the Service to protect Coleman’s coralroot under the ESA in September 2010. Originally thought to be part of the Chisos coralroot, the Service recognized Coleman’s coralroot as a separate species in 2011. At that time, the species was thought to occur only in three sites in the Santa Rita and Dragoon Mountains of southern Arizona. However, as of July 2013, the species has been identified in 22 colonies across seven mountain ranges in Arizona and New Mexico.

Mining, livestock grazing, nonnative invasive plant species, wildfire, drought, and climate change were all identified by CBD as potential threats to the habitat or range of Coleman’s coralroot. The threat due to mining was of particular concern because it is a significant component of the history and economy of the southwest, including southeastern Arizona. After assessing the best available science on the magnitude and extent of these threats, the Service determined that the destruction, modification, and curtailment of the species’ habitat or range are not a threat to the species. The Service determined that, while mining operations may affect a small percentage of the species’ habitat, it and other potential threats have not resulted in measurable population declines.

U.S. Fish and Wildlife Service Proposes Revised Rule for the Lesser Prairie-Chicken

On December 11, 2013, the U.S. Fish and Wildlife Service (Service) issued a revised special rule (pdf) that would provide for a limited exception to the protections currently proposed for the lesser prairie-chicken (Tympanuchus pallidicinctus) under the Endangered Species Act (ESA). The revised special rule incorporates a new five-state rangewide conservation plan for the species, and allows take of lesser prairie-chickens so long as such take is incidental to activities conducted by an individual enrolled in the rangewide conservation plan. Previous versions of the special rule referenced a conservation plan generally; the Service issued the revised rule to specifically reference the new rangewide plan.

As we previously reported, the special rule is proposed pursuant to section 4(d) of the ESA, and would only be implemented if the lesser prairie-chicken receives ESA protections. The Service also reopened the comment period on the proposal to list the species. According to the Service, comments on the revised special rule and the underlying listing proposal will be accepted through January 10, 2014.
 

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National Marine Fisheries Service Considers Listing the Pinto Abalone under the Endangered Species Act

The National Marine Fisheries Service (NMFS) published a 90-day finding (pdf) on two petitions to list the pinto abalone (Haliotis kamtschatkana) as threatened or endangered under the Endangered Species Act (ESA) and designating critical habitat for the species. According to NMFS, there is substantial scientific or commercial information indicating that listing the species under the ESA may be warranted.

The pinto abalone is a marine gastropod mollusk found in the Pacific Ocean. Its range extends from Sitka Island, Alaska, to Baja California, Mexico, though it is mostly found off the shores of Washington, Alaska and British Columbia. According to NMFS, factors affecting the species include recreational and/or commercial fisheries, as well as climate change and its associated impacts, such as low salinity, elevated water temperatures and ocean acidification.

NMFS is requesting comments and information by January 17, 2014.
 

U.S. Fish and Wildlife Service Declines to List Gunnison's Prairie Dog

On November 14, 2013, the U.S. Fish and Wildlife Service (Service) determined (pdf) that Gunnison’s prairie dog (Cynomys gunnisonidoes) does not warrant listing under the Endangered Species Act (ESA).  According to the Service, the species’ populations are stable and there are no threats causing or projected to cause the species to be at risk of extinction.  The Service also removed Gunnison’s prairie dog from the candidate list of threatened or endangered species. 

Gunnison’s prairie dog includes two subspecies that occupy areas of Arizona, Colorado, New Mexico, and Utah.  One subspecies is found in montane portions of its range, while the other occupies prairie areas.  The Service determined in 2008 that the montane population warranted listing under the ESA due to the effects of the sylvatic plague.  However, the Service found that the listing was precluded by higher-priority listing proposals, and thus the species was placed on the candidate list.

The Service’s recent determination – that neither subspecies warrants listing under the ESA – is based on new information regarding the prairie dog’s taxonomy (including a genetic study about the distinction between the two subspecies), the dynamics of sylvatic plague, and conservation efforts for the species.

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NMFS Determines Gulf of Mexico Sperm Whales Do Not Warrant Listing Under the Endangered Species Act

The National Marine Fisheries Service (NMFS) announced (pdf) that it will not list the Gulf of Mexico population of sperm whales (Physeter macrocephalus) as an endangered or threatened distinct population segment (DPS) under the Endangered Species Act (ESA).

Sperm whales were originally listed as endangered under the precursor to the ESA—the Endangered Species Conservation Act of 1969—and remained on the list of threatened and endangered species after the passage of the ESA in 1973. In December 2011, NMFS received a petition to list the Gulf of Mexico population as a threatened or endangered DPS under the ESA. NMFS determined (pdf) in March 2013 that the petition presented substantial information indicating that listing the Gulf of Mexico population as a DPS may be warranted, and so undertook a status review of the species.

Ending the inquiry this week, NMFS determined that listing the Gulf of Mexico population as a DPS is not warranted. As the basis for its determination, NMFS cited its conclusions that the Gulf of Mexico population did not constitute a discrete population, that it did not differ markedly from other populations of sperm whales in its genetic characteristics, that loss of the population would not result in a significant gap in the species’ range, and that the Gulf of Mexico population did not occupy an ecological setting unusual for the species.
 

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U.S. Fish and Wildlife Service Reopens Public Comment Period for Proposed Listing of Gunnison Sage-Grouse

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) the reopening of the public comment periods for its January 11, 2013 proposed rules to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA) and to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah. The Service also announced that it was rescheduling two public information sessions and public hearings for the proposed rules, as well as adding a third public informational session and public hearing. These hearings will be held November 19-21, 2013 in Colorado and Utah. The public can submit comments on the proposed rules through December 2, 2013.

As we previously reported, on March 13, 2013, the Service previously extended the comment periods for the proposed rules. The prior extension was the result of several requests to extend the 60-day comment period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.
 

Wildlife Service Proposes to List Two Butterfly Species

The U.S. Fish and Wildlife Service (Service) recently announced that it has proposed listing two butterfly species under the Endangered Species Act because of "steep population declines."  The two species are the Poweshiek skipperling (Oarisma poweshiek) and the Dakota skipper (Hesperia dacotae).  The notice issued by the Service states that "[b]oth butterfly species use prairie habitat and are threatened by degradation or changes to their habitat."  The Dakota skipper, which is proposed to be listed as a threatened species, is found in Minnesota, North Dakota, South Dakota and Canada.  The Poweshiek skipperling, which is proposed to be listed as an endangered species, is found in Wisconsin, Michigan, and Canada,  In addition to listing the species, the Service also proposed designating critical habitat for both species.  According to the notice issued by the Service, comments will be accepted on the proposed listings and critical habitat designations throughout December 23, 2013. 

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U.S. Fish & Wildlife Service Lists 15 Hawaiian Species as Endangered

This week, the U.S. Fish & Wildlife Service (Service) listed (pdf) 15 species on the island of Hawaii as endangered under the Endangered Species Act (ESA). Among the species protected are the anchialine pool shrimp (Vetericaris chaceorum), an extremely rare species of shrimp of which only five individuals have ever been observed, and the picture-wing fly (Drosophila digressa). In addition, the Service listed 13 species of plants, including sunflowers, asters, shrubs, and other small trees. Specifically, the haha (Cyanea marksii), aku (Cyanea tritomantha), and kookoolau (Bidens hillebrandiana ssp. hillebrandiana and Bidens micrantha ssp. ctenophylia) were granted federal protection.

The Service cited predation by non-native and invasive species, habitat destruction and modification, including conversion by agriculture and urbanization, and environmental changes resulting from climate change as primary threats to these species.

The Service is expected to publish a rule designating critical habitat for these species in the near future.

This week’s listing is the latest in a series of decisions resulting from a 2011 settlement agreement between the Service and the Center for Biological Diversity to expedite review of 757 species on the candidate waiting list. For more details regarding how these types of settlement agreements have recently come under scrutiny, please see our posts dated June 4, 2013 and March 29, 2013.

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U.S. Fish and Wildlife Service Proposes Listing the Greater Sage Grouse under the Endangered Species Act

On October 28, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the California and Nevada populations of the greater sage grouse (Centrocercus urophasianus) as threatened under the Endangered Species Act (ESA). According to the Service, this bi-state population is genetically distinct and geographically isolated from other greater sage grouse populations, and warrants protection under the ESA.

Primary threats to the species include degradation of habitat by livestock grazing and invasive plant species, fragmentation of habitat caused by urban and energy development, motorized recreation in courtship and nesting areas, and loss of habitat due to drought and wildfires.

In addition, the Service published a proposed rule (pdf) to designate over 1.8 million acres of critical habitat for the species in Storey, Carson, Douglas, Mineral, and Esmeralda counties in Nevada and Mono, Alpine, and Inyo counties in California.

Comments on the proposed rules must be submitted by December 27, 2013.
 

U.S. Fish and Wildlife Service Proposes to List the Vandenberg Monkeyflower as Endangered

Yesterday, the U.S. Fish and Wildlife Service issued two proposed rules for the Vandenberg monkeyflower (Diplacus vandenbergensis), a small annual herb only known to occur at nine locations in western Santa Barbara County.   The first rule proposes to designate the Vandenberg monkeyflower as an endangered species under the federal Endangered Species Act.  The second rule proposes to designate approximately 5,785 acres of critical habitat in Santa Barbara County, California for the Vandenberg monkeyflower.  In a notice, the Service states that the "primary threat to the Vandenberg monkeyflower and its habitat is the continued invasion of nonnative plant species, which are occurring within or adjacent to all locations where the species is found."  The notice states that public comments will be accepted on each of the proposed rules through December 30, 2013.

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U.S. Fish and Wildlife Service Denies Endangered Species Act Protection for Ashy Storm-Petrel

Today, the U.S. Fish and Wildlife Service (Service) published (pdf) its final determination that the ashy storm-petrel (Oceanodroma homochroa) does not warrant listing under the Endangered Species Act (ESA) at this time. The Service’s announcement constitutes its 12-month finding on a petition to list the species filed by the Center for Biological Diversity (Center).

The ashy storm-petrel is a small seabird that ranges from the California-Oregon border to Islas San Benitos, Mexico. The Service determined that climate change, invasive species, human activities, military activities, overutilization, predation, pollution, and ingestion of plastics are all potential threats to the species that are having a negligible to slight impact on the species. The Service also found that predation by the burrowing owl and western gull are likely having a slight to moderate impact on the species. The Service determined, however, that these threats did not rise to the level of warranting listing under the ESA because they would not affect the overall status of the species.

The Center filed a petition to list the ashy storm-petrel as threatened or endangered under the ESA on October 16, 2007. While the Service found that the listing may be warranted, on August 19, 2009, the Service announced its determination that listing was not warranted. The Center subsequently challenged the Service’s determination in the United States District Court of the Northern District of California, with the challenge ultimately being resolved via a Stipulation of Dismissal. In the Stipulation of Dismissal, the parties agreed to dismissal of the Center’s challenge subject to the Service’s agreement to submit a proposed rule or not-warranted finding regarding the ashy storm-petrel by the end of Fiscal Year 2013.

With the Conclusion of the Shutdown, the U.S. Fish and Wildlife Service Gets Back to Work

Getting back into the swing of things, earlier today the U.S. Fish and Wildlife Service determined that the eastern small-footed bat (Myotis leibii) does not warrant listing at this time, and commented on its proposal to list the northern long-eared bat (Myotis septentrionalis) (pdf) as endangered under the Endangered Species Act.  The notice issued by the Service states that the "primary threat to the northern long-eared bat is a disease, white-nose syndrome, which has killed an estimated 5.5 million cave-hibernating bats in the Northeast, Southeast, Midwest and Canada."  According to the notice, comments on the proposed listing must be received by 11:59 p.m. Eastern Time on December 2, 2013.  As for the eastern small-footed bat, the Service concluded that although the "bat also hibernates in caves and mines, it has not shown the drastic decline at winter hibernacula compared with that experienced by the northern long-eared bat." 

U.S. Fish and Wildlife Service Proposes to List Two Flower Species as Endangered

On October 3, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Florida Brickell-bush (Brickellia mosieri) and Carter’s Small-flowered Flax (Linum carteri var carteri) as endangered under the Endangered Species Act (ESA).

According to the Service, the flower species’ habitat in the pine rockland community of Miami-Dade County has been drastically reduced due to residential and commercial development and agriculture. Moreover, there is a potential for high levels of nutrients from agricultural and urban areas to seep into the pine rockland, thereby changing the vegetation composition and structure of the soil, and resulting in harm to the species.

In addition to the proposed rule to list the two species, the Service also published a proposed rule (pdf) to designate critical habitat for the two species in Miami-Dade County. In total, the Service proposed to designate over 2,600 acres for the Florida Brickell-bush and over 2,600 acres for the Carter’s Small-flowered Flax.

According to the notice in the Federal Register, comments on any of the proposed rules must be submitted by December 2, 2013.
 

U.S. Fish and Wildlife Service Proposes Listing the Rufa Red Knot as Threatened Under the Endangered Species Act

The U.S. Fish and Wildlife Service (Service) recently proposed listing (pdf) the rufa red knot (Calidris canutus rufa) as threatened under the Endangered Species Act. The red knot is a medium-sized shorebird about 9 to 11 inches in length that migrates more than 9,000 miles annually between its breeding grounds in the Canadian Arctic and Tierra del Fuego at the southern tip of South America. During its migration, the bird spends considerable time along the eastern seaboard of the United States.

According to the Service, the species has declined, in part, due to an increase in harvesting of horseshoe crab in Delaware Bay. Because the red knot relies on crab eggs as its primary food source, this reduction in food supply has caused the species’ population to decline. The Service also cites climate change and the loss of both breeding and nonbreeding habitat as threats to the species.

The Service will be accepting comments on its proposed rule until November 29, 2013. 

© Hans Hillewaert / CC-BY-SA-3.0
 

U.S Fish & Wildlife Service Denies Listing of Alaskan Seabird Under the Endangered Species Act

On October 3, 2013, the U.S. Fish and Wildlife Service (Service) declined to list (pdf) the Kittlitz’s murrelet (Brachyramphus brevirostris) under the Endangered Species Act. Responding to a petition from the Center for Biological Diversity, the Service concluded after a 12-month finding that, based on the best available scientific and commercial information, listing the species is not warranted at this time.

The Kittlitz’s murrelet is an Alaskan seabird that forages in coastal waters near glacier outflows. The petition to list the species stated that glacier loss due to climate change was the principal threat to the species’ population. The Service concluded, however, that the decline in the species could not be attributed to glacier loss, because the murrelet appears to be adapting to changing terrain, and its population has remained stable for the past 13 years.

Although the Service denied the petition to list the species, it will continue to accept information regarding the bird and its habitat.
 

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Citing Disagreements Over Climate Change Data, National Marine Fisheries Service Postpones Listing Determination on 68 Coral Species

In December 2012, the National Marine Fisheries Service (NMFS) published (pdf) a proposed rule to list 66 species of reef-building coral as threatened or endangered under the Endangered Species Act (ESA), and to re-classify two species from threatened to endangered.  At that time, NMFS stated that climate change posed one of the most significant threats to these species.  NMFS has now extended (pdf) the deadline for making a final determination on all 68 species for an additional six months, citing scientific disagreement on the sufficiency, accuracy, and applicability of climate change data, among other things.

In extending the deadline for its determination, NMFS stated that the public comment period for the proposed rule revealed "substantial disagreement" on the sufficiency and accuracy of the data, including disagreement on the "application of available information to predict impacts of global climate change on any particular species, or at any particular location."  Specifically, NMFS cited "varied, and often conflicting," information on the reliability, certainty, scale, and variability of future modeling and predictions of climate change, and the ability of corals to adapt or acclimatize to ocean warming and acidification.

NMFS is scheduled to close its data collection effort today.  A final determination is due in June of 2014.

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U.S. Fish and Wildlife Service Lists Three Species in Texas and New Mexico as Threatened or Endangered

 The U.S. Fish and Wildlife Service (Service) recently listed (pdf) the Jemez Mountains salamander (Piethodon neomexicanus) as endangered under the Endangered Species Act (ESA). The Service also recently published (pdf) a final rule listing the Texas golden gladecress (Leavenworthia texana) as endangered and the Neches River rose-mallow (Hibiscus dasycalyx) as threatened under the ESA.

The Jemez Mountains salamander is found only in the Jemez Mountains in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval Counties. The salamander is generally found around the rim of the collapsed Valles Caldera (a large volcanic crater), or in some instances in the interior of the caldera. The principal threats to the Jemez Mountains salamander include historical fire prevention and suppression, forest composition and structure conversions, post-fire rehabilitation, habitat fragmentation, and recreation. The Service announced that it will publish a final rule designating critical habitat for the salamander in the future.

The Texas golden gladecress is a small, annual, herbaceous plant belonging to the mustard family. It is principally found in east Texas, in San Augustine and Sabine Counties. The principle threats to the species include, in some cases, a total loss of habitat and plants, and in others, a degradation of the herbaceous glade plant communities supporting the species. The Service has determined that these threats are likely to be exacerbated by climate change. Activities or factors that continue to negatively impact the species’ habitat include quarrying, natural gas and oil exploration, invasion of open glades by nonnative species, pine tree plantings in close proximity to occupied glades, herbicide applications that kill emerging seedlings, and the installation of service improvements, including water and sewer lines, domestic gas lines, or electric lines.

The Neches River rose-mallow is similarly found in east Texas. Its principle threats include habitat loss and degradation of open habitats in the Neches, Sabine, and Angelina River basins and Mudd Creek and Tantabogue Creek basins that support the species. The rose-mallow’s habitat is being lost and degraded by encroachment of nonnative and native plant species, herbicide use, livestock, and alteration of the natural hydrology associated with seasonal flooding.

Due to the threat of habitat loss or degradation, the Service has also published (pdf) a final rule designating approximately 1,353 acres of critical habitat for the Texas golden gladecress in Sabine and San Augustine Counties, and approximately 166.5 acres of critical habitat for the Neches River rose-mallow in Nacogdoches, Houston, Trinity, Cherokee, and Harrison Counties. The Service’s critical habitat designation has created controversy in the seven affected counties, where opponents have stated they plan to fight the designation in court.

Settlement Agreement Reached With U.S. Fish & Wildlife Service to Consider Listing Nine Species Under the Endangered Species Act

On September 24, 2013, the U.S. Fish and Wildlife Service (Service) entered into a settlement agreement with the Center for Biological Diversity, requiring the Service to determine whether to list nine species under the Endangered Species Act (ESA). The agreement covers three freshwater species, the bridled darter (Percina kusha, formerly Percina sp. cf. macrocephala), Panama City crayfish (Procambarus econfinae), and Suwannee moccasinshell mussel (Medionidus walkeri), which are found in Georgia, Florida and Tennessee. Bicknell's thrush (Catharus bicknelli), a New England songbird, and MacGillivray’s seaside sparrow (A. m. macgillivraii), with a range from northeastern Florida to North Carolina, are also covered by the agreement.

The remaining species include two lizards, the eastern hellbender salamander (Cryptobranchus alleganiensis) and Florida Keys mole skink (Plestiodon egregius egregius), as well as the Sierra Nevada red fox (Vulpes vulpes necator) and boreal toad (Bufo boreas boreas). The agreement also requires the Service to designate critical habitat for the loggerhead sea turtle (Caretta caretta).

While deadlines for the determinations vary (e.g., determinations for the red fox and moccasinshell mussel are required by 2015, while determinations for the darter and crayfish are not required until 2017), all the species will receive expedited consideration under the ESA.

These types of settlement agreements have recently come under scrutiny. Specifically, Congress has introduced legislation intended to curtail these so-called “closed-door settlements” with environmental groups. For more details regarding these legislative efforts, please see our posts dated June 4, 2013 and March 29, 2013.
 

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U.S. Fish & Wildlife Service Lists Neosho Mucket as Endangered and Rabbitsfoot as Threatened Under the Endangered Species Act

The U.S. Fish and Wildlife Service (Service) has listed (pdf) the Neosho mucket (Lampsilis rafinesqueana) as endangered and the rabbitsfoot (Quadrula cylindrica cylindrica) as threatened under the Endangered Species Act (ESA).  Both are species of freshwater mussels found in river systems in the eastern half of the United States.

The Service reported that of 16 historical populations of Neosho mucket, only nine remain extant, and of those all but one is declining in numbers.  The Neosho mucket has been extirpated from appriximately 62 percent of its historical range.  Similarly, the rabbitsfoot has been extirpated from approximately 64 percent of its historical range, with only 11 of the 140 historical populations remaining viable.

River damming was cited as the primary cause of the species' decline.  Mining activities, stream dredging, and water pollution were also listed as contibuting factors.

The Service stated that it will make a final determination on critical habitat for these species in the near future.

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U.S. Fish & Wildlife Service Proposes Listing the Oregon Spotted Frog as a Threatened Species Under the Endangered Species Act

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) listing the Oregon spotted frog (Rana pretiosa) as a threatened species under the Endangered Species Act (ESA).  In addition, the Service has proposed (pdf) designating over 68,000 acres throughout Washington and Oregon as critical habitat for the species.

The Service cited ongoing habitat destruction as the primary threat to the Oregon spotted frog.  Once ranging from British Columbia to northern California, the Oregon spotted frog's historic range has declined by as much as 90 percent due to the filling of wetlands, hydrologic changes, reduced water quality, and vegetation changes.

The Oregon spotted frog is the most threatened frog species in the Pacific Northwest, and has already been listed as endangered under Washington law (pdf).  The Service initially identified the Oregon spotted frog as a candidate for protection under the ESA in 1993.  Last week's proposed listing is the result of a 2011 settlement agreement between the Service and conservation groups requiring the Service to expedite review of hundreds of species on the candidate waiting list.

The Service will be receiving public comments on the proposed rules through October 28, 2013.  A final decision is expected sometime next year.

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U.S. Fish and Wildlife Service Lists Two Species of Salamanders and Proposes Listing Two Species of Minnows Endemic to Texas

On August 19, 2013, the U.S. Fish and Wildlife Service (Service) announced (pdf) its decision to list the Austin blind salamander (Eurycea waterlooensis) as endangered and the Jollyville Plateau salamander (Eurycea tonkawae) as threatened under the Endangered Species Act (ESA). While the Service’s proposed listing of the two species designated both as endangered, the Service’s final rule (pdf) lists the Jollyville Plateau salamander as threatened based on new information received since publication of the listing proposal.

In conjunction with listing the two species, the Service designated (pdf) approximately 4,451 acres of critical habitat for both species in portions of Travis and Williamson Counties in south-central Texas. The final critical habitat determination decreased the amount in the Service’s proposed rule by 603 acres.

The primary threat to the Austin blind and Jollyville Plateau salamanders is habitat modification, in the form of degraded water quality and quantity and disturbance of spring sites due to urbanization. The ranges of the two species is limited to increasingly urbanized areas of Travis and Williamson Counties that are experiencing rapid population growth.

In connection with this final rule, the Service also announced (pdf) a six-month extension of the final determinations of the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis), and reopened the public comment period for those species for 30 days. The Service’s announcement was in response to public comments expressing concern regarding the sufficiency and accuracy of the available data related to the two species.

The Service also recently announced that it was proposing listing two species of Texas minnows as endangered under the ESA based on evidence that their habitats are in decline. Along with the listing proposal (pdf), the Service proposed (pdf) designating approximately 623 miles of the upper Brazos River basin as critical habitat for the sharpnose (Notropis oxyrhynchus) and smalleye (N. buccula) shiner. The two species are native to arid prairie streams in Texas. They are currently restricted almost entirely to the contiguous river segments of the upper Brazos River basin in north-central Texas, representing a reduction from the sharpnose and smalleye shiners’ historical ranges of more than 50 and 70 percent, respectively.
 

U.S. Fish & Wildlife Service Proposes Listing Two Species of Rare Utah Plants

The U.S. Fish and Wildlife Service (Service) has proposed (pdf) listing the Graham’s beardtongue (Penstemon grahamii) and White River beardtongue (Penstemon scariosus albifluvis) as endangered species under the Endangered Species Act. In addition, the Service has proposed designating a combined 83,000 acres in Uintah County, Utah as critical habitat for the rare plants.

The two beardtongue species are endemic to oil shale soils, and grow mostly on the Mahogany Ledge in northeast Utah, an area rich in oil shale deposits. The Service has cited oil and gas exploration and development as the primary threats to the species, as well as threats posed by invasive species and grazing.

The Service is accepting public comments on the proposed ruling until October 7, 2013.
 

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U.S. Fish and Wildlife Service Proposes Listing Rare Desert Rose Under the Endangered Species Act

On August 2, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) listing Webber’s ivesia (Ivesia webberi) as a threatened species under the Endangered Species Act (ESA). The Service also proposed (pdf) designating approximately 2,011 acres of critical habitat for the species in Plumas, Lassen, and Sierra Counties in northeastern California, and Washoe and Douglas Counties in northwestern Nevada.

Webber’s ivesia is a low, spreading, perennial forb in the rose family with grayish-green foliage, wiry stems, and clusters of small, yellow flowers. The species occupies vernally moist, rocky clay soils that shrink and swell upon drying and wetting. This type of soil occurs in areas with sparse vegetation associated with low sagebrush. According to the Service, the species is primarily threatened by invasive plants, wildfires, off-road vehicles, development, livestock grazing, and climate change.

The same day, the Service also proposed delisting Soldier Meadow cinquefoil (Potentilla basaltica). The Service found, based on the best scientific information available, that listing the species under the ESA was no longer warranted.

The Service will be accepting comments on the proposed rules until October 1, 2013.
 

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Butterflies, Plants and Herring - Recent Listing Decisions and Proposed Listings

On August 12, 2013, the National Marine Fisheries Service refused to list the alewife herring (Alosa pseudoharengus) and blueback herring (Alosa aestivalis), concluding that based on the best scientific and commercial data available, neither species warranted protection under the Endangered Species Act.  The determinationn was in response to a petition submitted by the Natural Resources Defense Council.  The news was not all bad for the herring, however, as the National Marine Fisheries Service also stated that it will be working with the Atlantic States Marines Fisheries Commission and other partners "to implement a coordinated coast-wide effort to continue to address data gaps and proactively conserve river herring and their habitat."

On August 13, 2013, the U.S. Fish and Wildlife Service listed the Gierisch mallow (Sphaeralcea gierischii), concluding that based on the best scientific and commercial data available, the plant found primarily on federal lands in Arizona and Utah warranted protection under the Endangered Species Act.  In addition to listing the plant as endangered, the Fish and Wildlife Service also designated 12,822 acres as critical habitat for the herb.

On August 14, 2013, the U.S. Fish and Wildlife Service issued a proposed rule to designate the Florida leafwing (Anaea troglodyta floridalis) and Bartram's scrub-hairstreak (Strymon acis bartrami) butterflies as endangered species under the Endangered Species Act.  The proposed rule states that listing is warranted in light of "a lack of adequate fire management, small population size, isolation from habitat loss and fragmentation, loss of genetic diversity, inadequate regulatory mechanisms, pesticide applications, poaching, hurricanes and storm surge, and sea level rise,"  According to the notice, comments on the proposed listing must be submitted on or before October 15, 2013.  On August 14, 2013, the U.S. Fish and Wildlife Service also issued a proposed rule to designate approximately 8,283 acres in Miami-Dade and Monroe Counties, Florida, as critical habitat for the Florida leafwing butterfly, and approximately 9,261 acres in Miami-Dade and Monroe Counties, Florida, as critical habitat for the Bartram's scrub-hairstreak butterfly.  According to the notice, comments on the proposed critical habitat designation must be submitted on or before October 15, 2013.

State and Federal Wildlife Agencies May Disagree About the Status of the Great White Shark

Today, the National Marine Fisheries Service (NMFS) completed its status review of the northeastern Pacific population of white shark (Carcharodon carcharias) and concluded (pdf) that listing the species under the Endangered Species Act is not warranted. According to Heidi Dewar, a fisheries research biologist at NMFS, the agency “felt that there were more than 200 mature females alone, an indication of a total population of at least 3,000." NMFS determined that the population is neither in danger of extinction throughout all or a significant portion of its range nor likely to become so in the foreseeable future.

Notably, NMFS’ announcement came close on the heels of the California Department of Fish and Wildlife’s (CDFW) June 19, 2013 statement that it is accepting comments on whether the northeastern Pacific population of white shark should be listed as a threatened or endangered species under the California Endangered Species Act (CESA). Earlier this year, CDFW concluded that insufficient information was available to determine whether the shark’s population was increasing, decreasing, or stable. The California Fish and Game Commission (Commission) subsequently determined that listing the white shark as a threatened or endangered species may be warranted, and designated the shark as a candidate species. CDFW’s June 19 statement marks the next step in the status review process. CDFW is soliciting information on potential habitat destruction or modification, overexploitation, predation, competition, disease, or other activities that may affect the status of the shark.
 

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U.S. Fish and Wildlife Service Proposes Listing the Kentucky Glade Cress

 The U.S. Fish and Wildlife Service (Service) recently published a proposed rule (pdf) to list the Kentucky glade cress (Leavenworthia exigua var. laciniata) as threatened under the Endangered Species Act (ESA). The Service also proposed (pdf) designating critical habitat for the species.

The Service previously identified the Kentucky glade cress as a candidate species on November 9, 2009. However, it was designated as a Listing Priority Number (LPN) 3. LPNs are assigned based on the immediacy of the threat to the species, as well as taxonomic status. As an LPN 3, Kentucky glade cress was identified as a candidate species for which the Service had on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation was precluded by other higher priority listing activities.

Kentucky glade cress is an annual member of the mustard family, known only to occur in Jefferson and Bullit counties in Kentucky. The species is a wildflower that grows to four inches and has small white to lilac blooms. Kentucky glade cress prefers environments with shallow soils with flat-bedded limestone, known as cedar or limestone glades.

The Service determined that Kentucky glade cress is threatened by the loss and degradation of habitats supporting the species due to development, roads, utilities, conversions to lawns, horseback riding, off-road vehicle use, and changes in grazing practices and forest encroachment. Additionally, other factors, including narrow range, low genetic diversity, and small population size, also warrant listing Kentucky glade cress as threatened.

In conjunction with the proposed rule to list the Kentucky glade cress as threatened under the ESA, the Service proposed designating 2,053 acres of critical habitat for the species. The designated habitat consists of six units, with 18 subunits, representing 18 of the 61 extant occurrences of Kentucky glade cress. Each unit contains all of the physical or biological features essential to the conservation of the species.

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

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

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

 

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

U.S. Fish and Wildlife Service Lists 38 Hawaiian Species Under the Endangered Species Act

On May 28, 2013, the U.S. Fish and Wildlife Service (Service) issued a final rule (pdf) listing 35 plants and three tree snails found on the Hawaiian islands of Molokai, Lanai, Maui, and Kahoolawe as endangered under the Endangered Species Act (ESA). The plant species include a variety of flowers, shrubs, and trees from coastal, lowland, subalpine, and cliff environments. The animal species include two Lanai tree snails (Partulina semicarinata and Partulina variabilis) and the Newcomb’s tree snail (Newcombia cumingi). The Service proposed listing the species in July 2012.

According to the Service, the species are threatened primarily due to habitat loss and by competition and predation from nonnative species, including feral pigs, goats, rats, and axis deer, and invasive plants and insects. The species are also threatened by global climate change and extreme weather events, including hurricanes, landslides, rockfalls, and flooding.

The proposed listing is in accordance with a 2011 settlement agreement with environmental groups, which requires the Service to expedite ESA protection decisions for 757 species. As we reported here, these types of settlements have recently received negative attention, prompting Congress to consider legislation that would require local stakeholders to approve such settlements in the future.
 

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U.S. Fish and Wildlife Service Proposes Limited Exception to Endangered Species Act Protections for Lesser Prairie-Chicken

On May 6, 2013, the U.S. Fish and Wildlife Service (Service) proposed (pdf) a limited exception to the Endangered Species Act (ESA) protections currently being considered for the lesser prairie-chicken (Tympanuchus pallidicinctus). The special rule is proposed pursuant to section 4(d) of the ESA, and would allow take of lesser prairie-chickens as long as such take is incidental to activities performed under a conservation plan that the Service has determined will provide a net benefit to the species.

The lesser prairie chicken is a small, grayish-brown grouse that inhabits grasslands and prairie habitat in Colorado, Kansas, New Mexico, Oklahoma, and Texas. As previously reported, the Service proposed listing the species as threatened under the ESA in December. The Service reopened the comment period for this proposed rule for an additional 45 days.

The special rule would only be implemented if the lesser prairie-chicken receives ESA protections. According to the Service, the special rule is proposed “in recognition of the significant conservation planning efforts occurring throughout the range of the lesser prairie-chicken for the purpose of reducing or eliminating threats affecting the species.”

The Service also announced the availability of a draft conservation plan that was developed by the Lesser Prairie-Chicken Working Group, which is comprised of states, landowners, and energy developers who have partnered to prevent the bird from becoming listed. The proposed special rule discusses the draft plan, explaining: “For the Service to approve coverage of a comprehensive conservation program under this 4(d) special rule, the program must provide a net conservation benefit to the lesser prairie-chicken population.”

Comments on the proposed special rule, the proposed listing, and the draft conservation plan (as such comments relate to the Service’s listing determination) are due June 20, 2013.
 

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U.S. Fish and Wildlife Service Proposes Endangered Species Act Protections for Sierra Nevada Amphibians

On April 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Sierra Nevada yellow-legged frog (Rana sierrae) as endangered, the northern distinct population segment (DPS) of the mountain yellow-legged frog (Rana muscosa) as endangered, and the Yosemite toad (Anaxyrus canorus) as threatened under the Endangered Species Act (ESA).

According to the Service, populations of the Sierra Nevada yellow-legged frog and the northern DPS of the mountain yellow-legged frog are declining due to habitat degradation and fragmentation, predation, disease, climate change, and other factors impacting the species’ vitality. The Service also determined that Yosemite toad populations are likely to decrease due to habitat degradation and anticipated effects of climate change.

In addition to the proposed listing, the Service also published a proposed rule (pdf) to designate critical habitat for the three species. Specifically, the Service proposed designating over 1.1 million acres of critical habitat for the Sierra Nevada yellow-legged frog, over 200,000 acres for the northern DPS of the mountain yellow-legged frog, and over 750,000 acres for the Yosemite toad. The critical habitat designations include acreage in seventeen counties across California, ranging from Tulare County in the south to Butte County in the north.

Comments regarding either proposed rule must be submitted by June 10, 2013.

 

U.S. Fish and Wildlife Service Proposes to Designate Almost 740 Miles of Critical Habitat for the Loggerhead Sea Turtle

On March 25, 2013, the U.S. Fish and Wildlife Service (Service) published a proposed rule (pdf) to designate critical habitat for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle (Caretta caretta) under the Endangered Species Act (ESA).  The proposed critical habitat includes almost 740 miles of coastline in North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi. 

The loggerhead sea turtle includes nine distinct population segments (DPS), and the Northwest Atlantic Ocean DPS is currently listed as threatened (pdf) under the ESA.  The critical habitat designation would help protect foraging and nesting grounds for the species.  According to the Service, the proposed designation is limited to occupied habitat containing "the physical and biological features essential to the conservation of the species in the terrestrial environment."  Comments on the proposed designation must be submitted by May 24, 2013.

The National Marine Fisheries Service (NMFS) joined the Service in listing the species in 2011.  NMFS is currently evaluating specific areas in the marine environment in order to issue a proposed rule designating in-water critical habitat for the loggerhead sea turtle later this year.

Comment Period Extended for Proposed Listing of Gunnison Sage Grouse

On March 13, 2013, the U.S. Fish and Wildlife Service (Service) extended (pdf) the public comment period for two proposed rules relating to the Gunnison sage-grouse (Centrocercus minimus).  As we previously reported, the Service published a proposed rule to list the species as endangered under the Endangered Species Act (ESA) in January.  In conjunction with that proposed rule, the Service also proposed to designate approximately 1.7 million acres of critical habitat for the species in Colorado and Utah.  The 60-day public comment period for these two proposed rules was scheduled to end March 12, 2013, but the Service received several requests to extend the period to ensure that the public had an adequate opportunity to review and comment on the proposed rules.  The public comment period is now open until April 2, 2013.

Among those requesting extension of the comment period were congressional leaders in Colorado and Utah, who sent a letter to the Service's regional director requesting the Service extend the period 60 days because of the "great interest and concern" among the communities they represent.  Of particular concern to the lawmakers was the critical habitat designation because it could impact a host of land uses on both public and private land, including the development of mineral resources.

While the Service extended the public comment period for the two proposed rules, the extension fell short of the 60 days requested by the congressional leaders.  As we previously reported, the Service is under a deadline imposed through a legal settlement with WildEarth Guardians to review and address the needs of more than 250 species listed as candidate species for protection under the ESA, including the Gunnison sage-grouse.  The deadline for review of the Gunnison sage-grouse is September 30, 2013.  With the public comment period extended for only three weeks - to April 2nd - the Service indicates it intends to issue its final determinations with respect to the proposed rules by the agreed upon deadline.

Clear Lake Hitch Becomes Candidate for Protection Under California Endangered Species Act

 The California Fish & Game Commission (Commission) voted this week to designate the Clear Lake hitch (Lavinia exilicauda)—a fish found only in Clear Lake and its tributaries—as a candidate species under the California Endangered Species Act (CESA). This week’s vote triggered a one-year formal review period during which the status of the fish will be assessed.

The Clear Lake hitch population has declined dramatically due to a loss of spawning habitat in the tributaries feeding into Clear Lake. Other causes of the decline of the fish include migration barriers that block passage to spawning grounds, alteration of creek habitat, water pumping, and competition from invasive fish species.

(Photo by Richard Macedo/California Department of Fish and Game)

The Lake County Record-Bee reported that the Lake County Board of Supervisors has petitioned the Commission to delay decision-making on the Clear Lake hitch to allow more time for officials and stakeholders to review the data and present research. However, according to Denise Rushing, a County Supervisor, “[i]t may be inevitable that the hitch receives protection status given the steep decline in the population.”  Supporters of the Commission's decision include the Pomo Indian Tribes around Clear Lake, while the Lake County Farm Bureau and Lake County Chamber of Commerce do not believe CESA protections are warranted.

 

 

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Great White Shark Protected Under California Endangered Species Act

On March 1, 2013, the great white shark (Carcharodon carcharias) received protection (pdf) under the California Endangered Species Act (CESA).  The protections prohibit anyone from hunting, pursuing, or otherwise harming the species.  Commercial fisheries that could incidentally take a shark in fishing nets, as well as scientists wishing to tag a shark for research, will have to obtain permits from the California Department of Fish and Wildlife.  As reported here, the protections are the result of the California Fish and Game Commission's decision to make the species a candidate for protection under CESA.   

 

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California Fish and Game Commission Makes Great White Shark a Candidate Under California Endangered Species Act

On February 6, 2013, the California Fish and Game Commission (Commission) voted to make the great white shark (Carcharodon carcharias) a candidate for protection under the California Endangered Species Act (CESA).  The Commission determined that listing the species as threatened or endangered under CESA may be warranted, and initiated a one-year comprehensive review to evaluate the status of the species.  Based on this review, the Commission will make a final decision next year regarding whether to list the species.  The species will receive protection under CESA while the review is conducted.  As we reported here, the Commission’s decision is the result of a recommendation from the California Department of Fish and Wildlife to list the species. 

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Service Proposes to List Wolverine as Threatened Species

On February 1, 2013, the U.S. Fish and Wildlife Service announced its proposal to list the wolverine (Gulo gulo luscus) as a threatened species under the Endangered Species Act.  The proposed listing is the result of a court-ordered deadline established by a controversial settlement between the Service and two environmental organizations.  (See our posts from January 4 and January 14 for a discussion of this controversy.)

The wolverine resembles a small bear.  Adults weigh between 17 and 40 pounds.  The range of the species includes portions of California, Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming.  Wolverines tend to live in remote and inhospitable places and occur at low densities making it difficult to track their distribution.

The Service's proposed rule states, based on climate modeling, that "habitat loss due to increasing temperatures and reduced late spring snowpack due to climate change is likely to have a significant negative population-level impact on wolverine populations in the contiguous United States.  In the future, wolverine habitat is likely to be reduced to the point that the wolverine in the contiguous United States is in danger of extinction."  While the proposed listing would protect the wolverine from hunting and trapping, the Service has proposed a special rule that would permit a number of activities occurring within the wolverine's habitat to continue.  These activities, which are are often considered to result in take for other species, include infrastructure development, snowmobiling, backcountry skiing, and timber harvesting.  The Service stated in the proposed rule that it does not consider these activities to constitute a significant threat to the species.  

Although it now seems almost certain that the wolverine will receive some level of protection from the federal government, a number of environmental groups would likely argue that the wolverine should have received protection sooner.  There have been multiple petitions to list the wolverine over the past 20 years.  In April 1995, the Service concluded that a petition to list the wolverine as threatened or endangered did not provide substantial information indicating that listing may be warranted.  In October 2003, the Service issued a 90-day finding concluding that a second petition failed to present substantial scientific and commercial information indicating that listing may be warranted.  And in March 2008, after a third petition, the Service published a 12-month finding concluding that listing was "not warranted."  An environmental organization challenged this 12-month finding in federal court, however, and in order to settle the litigation the Service agreed to reconsider the petition.  Thereafter, in December 2010, the Service issued a 12-month finding concluding that listing was warranted but precluded by high priority listing actions.  But in 2011, the Service settled a set of consolidated actions challenging its practices with respect to candidate species.  The wolverine was one of the 251 candidate species covered by these settlements.

U.S. Fish and Wildlife Service Issues Proposed Rule to List Zuni Bluehead Sucker as Endangered

On January 25, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Zuni bluehead sucker (Catostomus discobolus yarrowi) as endangered under the Endangered Species Act (ESA).  The sucker had been on the candidate list since 2001, when the Service determined that the species warranted protection under the ESA, but listing was precluded by higher priority listing activities.

The Zuni bluehead sucker has a torpedo-shaped body and bluish head.  The average length of a mature fish is approximately 200 centimeters (8 inches).  The species inhabits the Zuni River watershed in New Mexico, the Little Colorado watershed in eastern Arizona, and Canyon de Chelly in northeastern Arizona.  

In conjunction with its proposed listing, the Service also proposed designating 293 stream miles of critical habitat for the species in Arizona and New Mexico and on Navajo Nation land.  According to the Service, the species' habitat has been lost or degraded due to water withdrawal, logging, overgrazing, development, and erosion.

(Photograph courtesy of the Fish and Wildlife Service).

The public comment period for the proposed rule will close March 26, 2013.

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U.S. Fish and Wildlife Service Issues Proposed Rule to List Gunnison Sage-Grouse as Endangered

 On January 11, 2013, the United States Fish and Wildlife Service (Service) published a proposed rule (pdf) to list the Gunnison sage-grouse (Centrocercus minimus) as endangered under the Endangered Species Act (ESA).  As we previously reported, the sage-grouse had been on the candidate species list since January of 2000, but the Service was not authorized to prepare a proposed rule to list the species or designate critical habitat until 2011, when additional resources became available.

The Gunnison sage-grouse is the smaller cousin of the greater sage-grouse.  The species occurs in seven widely scattered and isolated populations in southwestern Colorado, including one that extends into southeastern Utah.  The core and largest population of the species is considered stable, while other populations are in decline.  

The Service has identified habitat loss and fragmentation as key threats to the Gunnison sage-grouse.  According to an advance notice published in the Federal Register, "The human population is increasing  throughout much of the range of the Gunnison sage-grouse, and data indicate this trend will continue.  With this growth, we expect an increase in human development, further contributing to loss and fragmentation of Gunnison sage-grouse habitats."  Accordingly, the Service also published a proposed rule (pdf) to designate approximately 1,704,227 acres of critical habitat for the species in Colorado and Utah.

The proposed listing and designation of critical habitat is the product of the Service's legal settlement with WildEarth Guardians and the Center for Biological Diversity that required either a proposed listing decision or a "not warranted" determination for the species by September 30, 2013.  The Service is accepting comments on both the proposed listing of the Gunnison sage-grouse and the proposed designation of critical habitat through March 12, 2013.

California Department of Fish and Wildlife Recommends Listing Northeastern Pacific Population of White Sharks as Endangered or Threatened Under California Endangered Species Act

The California Department of Fish and Wildlife (Department) has determined (pdf) that there is sufficient scientific information to petition to list the Northeastern Pacific (NEP) population of white sharks (Carcharodon carcharias) as threatened or endangered under the California Endangered Species Act.  Currently, the take and possession of white sharks is protected from sport and commercial fishing activities, with limited exceptions, under existing laws.  However, the scientific information in the petition demonstrates that the species may benefit from additional regulation.  If the petition is accepted by the California Fish and Game Commission (Commission) for consideration, the Commission will initiate a year-long scientific-based review of the species to determine whether or not listing is warranted.

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National Marine Fisheries Service Lists Two Arctic Seals Under the Endangered Species Act

On December 28, 2012, the National Marine Fisheries Service (NMFS) issued a final rule (pdf) listing three subspecies of the ringed seal as threatened and one subspecies as endangered under the Endangered Species Act (ESA). The same day, NMFS listed (pdf) two distinct population segments of the bearded seal as threatened under the ESA. Based on the best scientific and commercial data available, NMFS “concluded that a significant decrease in snow ice is probable later this century, and that these changes will likely cause these seal populations to decline.” A species is considered threatened if it is likely to become endangered within the foreseeable future throughout a significant portion of its range. Based on this definition, NMFS believes that "threats stemming from well-established observed trends in a global physical process" such as climate change are sufficiently foreseeable to warrant listing.

According to the Seattle Times, Alaska Governor Sean Parnell called the science behind the listing decision speculative, and said the state will consider legal action. (Joling, Dec. 31, 2012). Noting that the ringed seal population is in the millions and the bearded seal population is in the thousands, Gov. Parnell stated that the “ESA was not enacted to protect healthy animal populations.”

Ringed seals thrive in completely ice-covered Arctic waters, and give birth to their cubs in snow caves. Bearded seals, named for their thick whiskers, give birth on drifting pack ice. According to NMFS, warming temperatures will cause a decline in both species’ breeding and rearing habitats. 

Existing laws currently authorize subsistence hunting of seals by Alaska Natives. The listing determination has no effect on these laws.
 

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

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

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

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

 



U.S. Fish and Wildlife Service Proposes Listing Four Subspecies of the Mazama Pocket Gopher

On December 11, 2012, the U.S. Fish and Wildlife Service (Service) proposed listing (pdf) four subspecies of the Mazama pocket gopher (Thomomys mazama) as threatened under the Endangered Species Act. The Service also proposed designating 9,234 acres of critical habitat in Thurston and Pierce counties in the state of Washington. The four subspecies proposed for listing are the Olympia, Roy Prairie, Tenino and Yelm pocket gophers. The Service declared a fifth subspecies, the Tacoma pocket gopher, as extinct. The pocket gophers were proposed for listing last October, but the action was delayed because the Service requested more time to collect and review information.

Landowners in the region are concerned that the proposed listing and critical habitat designation could limit land use and development. According to the Seattle Times, local stakeholders have begun creating a Habitat Conservation Plan that would “set up a one-stop shop where landowners and builders could go for permits, ensuring they are compliant with both county and federal laws.” (Krotzer, Dec. 11, 2012). The proposed plan includes exemptions for small residential landowners and their properties, and will not be finalized until next year.

Mazama pocket gophers are small, tube-shaped animals with short necks, and external fur-lined cheek pouches that are used to carry plant material for food and nest building. The animals typically live in glacial outwash prairies, and alpine and subalpine meadows. Mazama pocket gopher populations have declined due to the loss of habitat to urban development, gravel mining, and agriculture.
 

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Judge Denies Motion to Amend Order Vacating Designation of Slickspot Peppergrass as Threatened under the Endangered Species Act

On December 4, 2012, the U.S. District Court for the District of Idaho denied a request to amend its previous order reversing the U.S. Fish and Wildlife Service's (Service) 2009 Final Rule listing the slickspot peppergrass (Lepidium papilliferum) as threatened under the Endangered Species Act (ESA).  Plaintiffs sought to reverse the court's August 2012 decision (pdf) to vacate the Service's determination in order to allow the listing to remain in place pending additional review.

The ESA defines "threatened" as "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."  The court based its decision to vacate the listing on the Service's failure to adequately define "foreseeable future" as it applied to the species.  The Final Rule defined "foreseeable future" as "that time period over which events can reasonably be anticipated."  The court found that this definition was too generic, and that the definition of "foreseeable future" must be made on a species-by-species basis and through an analysis of time frames applicable to the particular species at issue.  It remanded the issue to the Service for further consideration.

The Service published its Final Rule listing slickspot peppergrass as threatened on October 8, 2009.  Multiple parties, including Idaho Governor C.L. "Butch" Otter (R), sued the Service contending that: (1) the listing was not based upon the "best available science"; (2) a species may only be listed under the ESA if it is likely to become an endangered species in the foreseeable future, and the Service failed to provide an adequate definition of the "foreseeable future" in its Final Rule; (3) the Final Rule improperly discounted the significance of state conservation efforts; and (4) the Service failed to provide the State of Idaho with a letter outlining the justifications for the listing, which is required under section 4 of the ESA when a state files comments disagreeing with all or part of a proposed regulation.

Slickspot peppergrass is a small, flowering plant in the mustard family.  It is endemic to Idaho, and has never been found outside of the state.  The species is found in "slickspots," which have been described as small circular patches of ground with unusual soil chemistry that create visually distinct openings in the surrounding sagebrush environment.  Scientists believe that the slickspots took thousands of years to form and, once destroyed, cannot be re-created. 

The litigation was the fourth occasion since 2001 that a federal court had been asked to review a decision by the Service concerning whether slickspot peppergrass should be listed as threatened or endangered.

The U.S. Fish and Wildlife Service Proposes Listing the Lesser Prairie-Chicken as Threatened

On November 30, 2012, the U.S. Fish and Wildlife Service (Service) issued a proposed rule (pdf) to list the lesser prairie-chicken (Tympanuchus pallidicinctus) as threatened under the Endangered Species Act (ESA).  While voluntary conservation planning efforts are ongoing, the Service decided (pdf) to move forward with the proposed rule based on “scientific evidence that the lesser prairie-chicken and its habitat are in decline.”  The Service encouraged the public and scientific community to comment on the proposed rule during the 90-day comment period.  The Service will make its final determination based on the best available science.

As previously reported, stakeholders are working towards reaching voluntary agreements to protect the lesser prairie-chicken in lieu of listing the species under the ESA. The Service acknowledged these efforts and stated “we are encouraged by current multi-state efforts to conserve the lesser prairie-chicken and its habitat, but more work needs to be done to reverse its decline.”  In a letter (pdf) encouraging the Service to consider these efforts when making its decision to list the species, Senator Tom Udall (D - N.M.) expressed concern over the impact of a listing decision on landowners, ranchers and other industries in New Mexico.  Others, including Senator Jim Inhofe (R - Okla.), are pleased with the Service's proposal to list the species as threatened, rather than endangered, because it will have less impact on agriculture, highway construction and wind energy development projects in Oklahoma.  The Bureau of Land Management (BLM), however, is committed to protecting the lesser prairie-chicken without assistance from the ESA.  Today, BLM announced that it purchased 1,789 acres of private land in southeastern New Mexico as additional habitat for the species. (San Francisco Chronicle, Dec. 7, 2012).

 

 

 

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

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

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

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

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

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

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

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

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

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

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

Petition Filed Seeking State Protection for California Townsend Big-Eared Bat

On October 18, 2012, the Center for Biological Diversity filed a petition (pdf) requesting that the California Fish and Game Commission list the Townsend's big-eared bat (Corynorhinus townsendii) as endangered or threatened throughout its range in California.  The petition states that the bat is in widespread decline throughout the western United States, and that the bat is "severely threatened by a combination of disturbance of cave and mine sites, loss of mine and cave habitat to mining, logging and urban development, white-nose syndrome and other factors."  The next step in the process is for the Department of Fish and Game to evaluate the petition on its face and in relation to other relevant information and determine in its opinion whether there is sufficient information to indicate that the petitioned action may be warranted.  The Department has 90 days from receipt of the petition to submit a written report to the Fish and Game Commission with its recommendation.

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Fish and Wildlife Service Proposes to List Butterfly Species Near Las Vegas

In 2011, the U.S. Fish and Wildlife Service (Service) reached a settlement agreement with environmental groups in which it agreed to make final listing decisions on over 200 species over the next six years. Last month, we noted that the national effects of this settlement agreement had yet to be fully discerned.  (See Signs of Trouble Ahead?)  Today, its effects became a little clearer as the Service issued a proposed rule to list the Mount Charleston blue butterfly (Icaricia shasta charlestonensis) as an endangered specie.  In addition, the Service intends to list as threatened five other species of butterfly that look similar to the Mount Charleston blue in order to further protect it.

The butterfly is found only in the Spring Mountains west of Las Vegas. One reporter cited a source that stated that biologists were able to locate only 20 individuals of the species (E&E Reporter, Sept. 26, 2012, by Laura Petersen). The Service has attributed the species' decline to, among other things, drought and habitat loss from fire suppression in the area. The Service declined to identify the exact location of the butterfly’s critical habitat, citing concerns that doing so would lead unauthorized collectors to the last remaining individuals.

Federal protection of the butterfly may affect recreation and development in the area. Kevin Stickleman is the president and manager of a ski resort in the Spring Mountains area that plans to expand over the next several years.  In a recent interview, Stickleman said that he was confident that he could work in close consultation with federal authorities, and ensure that the planned expansion would continue. While this may complicate the resort’s plans, Stickleman felt that federal protection of the butterfly was an important step in protecting the health of the Spring Mountains.

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Fish and Wildlife Service Lists 23 Oahu Species and Designates Over 40,000 Acres as Critical Habitat

On September 17, 2012, the U.S. Fish and Wildlife Service announced (pdf) that it had issued a final rule listing 23 species native to the Hawaiian island of Oahu as threatened or endangered under the Endangered Species Act.  The species include 20 plants and three damselflies. The rule follows a legal settlement with the Center for Biological Diversity that required the agency to make determinations with respect to 757 species, including 17 of the 23 Oahu species granted protection.  At the same time it issued the listing determinations, the Service designated 42,804 acres (or approximately 67 square miles) of critical habitat for 124 species.  Nearly 93% of the designated habitat has previously been identified as necessary to the conservation of the newly listed species.

According to the Fish and Wildlife Service all of the listed species are threatened by habitat  destruction and alteration.  The Crimson Hawaiian damselfly, pictured below, is one of the species listed, and like a butterfly also goes through metamorphosis. 

 

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Fish and Wildlife Service to List Extremeley Rare San Francisco Plant

On September 4, 2012, the San Francisco Chronicle reported that the U.S. Fish and Wildlife Service will issue a final rule today listing the Franciscan manzanita (Arctostaphylos franciscana) as an endangered species under the Federal Endangered Species Act.  (See article by Peter Fimrite).  The Chronicle also reported that the Service proposes to designate more than 300 acres of critical habitat in San Francisco for the plant.  The proposed critical habitat includes areas in Presidio, Corona Heights, Twin Peaks, Mount Davidson, Diamond Heights, Bernal Heights, and Bayview Park.  For further background regarding this listing please see our posts of September 12, 2011 and August 22, 2010.

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California Department of Fish and Game Recommends Gray Wolf for Candidate Species

The California Department of Fish and Game (DFG) recently completed its initial evaluation (pdf) of a petition to list the gray wolf (Canis lupus) under the California Endangered Species Act (CESA).  The Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath-Siskiyou Wildlands Center (collectively, Petitioners) submitted a petition for the listing to DFG on March 5, 2012.  DFG recommended the Fish and Game Commission (Commission) accept the petition for further consideration, finding that there is sufficient information to indicate that listing the gray wolf under CESA may be warranted. 

DFG noted that the petition to list the gray wolf presented "unprecedented" challenges.  According to DFG, Petitioners failed to submit any materials referenced in the petition to the Commission or to DFG and, in some instances, failed to present any reference to support a claim.  DFG stated that the petition on its face did not provide sufficient information to indicate the petitioned action may be warranted.  DFG nevertheless evaluated the petition on its face in relation to other relevant information it possessed or received during its initial review, as it is required to do by law.  Such information included the materials referenced in the petition, which DFG obtained through its own effort.

Very little scientific information exists regarding gray wolves that is specific to California.  The only concrete information to date is that a single male wolf - OR7 - first crossed into California in December 28, 2011.  Before OR7, the last confirmed wolf in California was in the state in 1924 and, since then, "sightings" have turned out to be coyotes, dogs, wolf-dog hybrids, etc.  Anecdotal evidence suggests that gray wolves historically were distributed broadly throughout California, though DFG concludes that the lack of documented reliable observations in the state suggests that the population was not large and has been extirpated for approximately 80 years.

The Commission will vote on DFG's recommendation in early October.  As we recently reported, the federal government is currently considering delisting the gray wolf in Wyoming under the federal Endangered Species Act.

Signs of Trouble Ahead?

An article was published today in the E&E Reporter entitled "Petitions for new species protection wobble balance in FWS settlement with environmentalists."  The article, authored by Allison Winter, provides an interesting lens through which to view the ongoing struggle between the federal wildlife agencies and environmental groups.  In 2011, the U.S. Fish and Wildlife Service (Service), Wild Earth Guardians, and the Center for Biological Diversity (CBD) entered into a settlement agreement, which was subsequently approved by a federal court, obligating the Service to, among other things, make final listing decisions on over 200 species over the next 6 years.  (See July 14, 2012 Post by David Miller.)  Recently, however, CBD submitted a new petition requesting that the Service list 53 additional species located all across the United States.  The article, which recites this history, highlights the conflicting expectations of the Service and CBD as a result of the 2011 settlement.  Particularly, the Service's hope that the settlement would forestall future petitions by CBD, in contrast with CBD's clear intent to move forward without regard for the Service's existing obligations and budgetary constraints. 

It will be interesting to see how the expectations of CBD and the Service evolve over time, and what the unintended consequences may be of CBD's continued efforts to move listing decision forward.  For example, will there be litigation if the Service fails to comply with a deadline under the Endangered Species Act?  And if so, how will this play politically.  There have already been calls in Congress to eliminate the ability of a plaintiff to recover attorneys' fees when an environmental plaintiff prevails on a claim to compel compliance with a listing deadline.  Some have even suggested a whole-sale rewrite of the Endangered Species Act is necessary.  Will this be the straw that broke the camel's back?  Only time will tell.

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Fish and Wildlife Service Announces Proposal to Protect 40 Hawaiian Species

The U.S. Fish and Wildlife Service (Service) recently announced a proposal to protect 40 different species native to Hawaii under the Endangered Species Act (ESA).  The Federal Register notice of the announcement can be found here (pdf).  The proposal encompasses 37 plant species, including herbs, shrubs, trees, and ferns, and three species of tree snails.  The species are native to the Hawaiian Islands of Moloka'i, Lana'i, Kaho'olawe, and Maui.  They are found in 11 different ecosystem types.

The Service's announcement also included critical habitat designation for 39 of the 40 species, totaling approximately 271,062 acres of land, including occupied and unoccupied habitat. Of that total, 192,364 acres are located on Maui, 46,832 acres are on Moloka'i, 25,413 acres are on Lana'i, and 6,453 acres are on Kaho'olawe.  Almost half of the designated area was already designated as critical habitat for other listed species.  Loyal Mehrhoff, field supervisor for the Pacific Islands Fish and Wildlife Office said of the listing, "The Service is implementing an ecosystem-based approach to the proposed listing and designation of critical habitat in Hawaii - which leads the nation in the number of federally listed and candidate species - to better prioritize, direct, and focus conservation and recovery actions."

Threats to the listed species include: (1) habitat degradation and direct consumption by nonnative pigs, goats, sheep, and deer; (2) direct consumption by nonnative pigs, goats, sheep, deer, other nonnative vertebrates and invertebrates; (3) habitat destruction and modification by nonnative plants, stochastic events (e.g. hurricanes, flooding, etc.), agriculture and urban development, and climate change; and (4) inadequate regulatory  mechanisms and other species-specific threats.  The Service found that all 40 species face immediate and significant threats throughout their ranges.

The Service announced its proposal to protect the 40 species, native to the Hawaiian Islands of Moloka'i, Lana'i, and Maui as endangered, as well as the designation of critical habitat for 135 species, in June 2012.  The Service's announcement follows a 2004 petition drafted by the Center for Biological Diversity asking the Service to list 227 different species under the ESA.

Photo by Hank Oppenheimer, Plant Extinction Prevention Program, U.S. Fish and Wildlife Service

Chupadera Springsnail Listed as Endangered After 28-Years on the Candidate List

Spring Creek in New MexicoEffective August 13, 2012, the Chupadera springsnail's 28-year candidacy for listing will be over.  In a final rule (pdf) issued July 12, 2012, the U.S. Fish and Wildlife Service listed the Chupadera springsnail (Pyrgulopsis chupaderae)  as endangered, and designated critical habitat for the species in the only two units where it is known to occur in Socorro County, New Mexico.

The Chupadera springsnail is a tiny freshwater snail endemic ot Willow Spring and an unnamed spring nearby located on private land near the southeast end of the Chupadera Mountains.  Because the species relies on a limited range of conditions in the immediate vicinity of spring vents, and its only means of dispersal is by becoming attached to the feathers and feet of migratory birds, its extremely limited range increases the risk of extinction from other stressors such as ranching, housing development, and associated groundwater depletion.  In addition, the Service anticipates that climate change may exacerbate the depletion of groundwater, which could reduce the flow of water to the springheads.

The Chupadera springsnail was first identified as a candidate for listing in 1984.  But, until recently, the Service repeatedly determined that its listing was precluded by other higher priority listings.

According to the Service, one of the two known populations was extirpated due to the effects of grazing on the unnamed spring as of 1999, the last time the springs were visited.  In addition, the ranch where the springs are located is being subdivided, and developement depends on local well water.  Thus, the Service has determined that the Chupadera springsnail is in danger of extinction throughout all or a significant portion of its limited range from cattle grazing, spring modification, and the threat of groundwater depletion due to development.

The Service also designated two small units of critical habitat: Willow Spring, along with approximately 38 meters of springbrook and associated wet meadow (1.4 acres) and the unnamed spring, including the springhead, springbrook, small seeps and ponds, and associated seasonally wetted meadow (0.5 acres).

Service Decides Against Listing of Dunes Sagebrush Lizard

The Fish and Wildlife Service made a decision (pdf) recently not to list the dunes sagebrush lizard (Sceloporus arenicolus) as threatened or endangered under the Endangered Species Act.  The distribution of the small, light brown lizard is limited to western Texas and southeastern New Mexico. The status of the species has been uncertain for a number of years; in 2004 the Service determined that listing the species was warranted but precluded by higher priority actions and in 2010 the Service proposed to list the species as endangered.  The potential listing of the species drew strong opposition from Republican lawmakers in Texas and New Mexico as well as the oil and gas industries in those states.  The decision was widely covered in the media.  "Depending on whom you ask, and their political affiliation, a little lizard’s long-fought battle for protection ended Wednesday either in victory or defeat, or something in between," wrote Manny Fernandez in an article that appeared in the New York Times (June 13, 2012).

The decision not to list the species was based on the a determination by the Service that "voluntary conservation agreements would ensure the long-term survival of the species and its habitat."  (New York Times, June 13, 2012, by Manny Fernandez.)  According to the Service, those conservation measures cover over 650,000 acres, or 88 percent of the species' habitat.  The decision not to list based on voluntary agreements was criticized by at least one environmental group, but it was lauded by another.

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Central American Crocodile Delisted

On May 23, 2012, the U.S. Fish and Wildlife Service removed the Morelet's crocodile (Crocodylus moreletii) from the list of federal endangered and threatened species.  The species was first listed as endangered in June, 1970.  The listing was due primarily to over-harvesting for commercial purposes.  Shortly thereafter, restrictions on the commercial harvest and trade of the species were instituted.  In 2005, after a survey had established the widespread distribution and relative abundance of the species, the Government of Mexico filed a petition seeking to delist the crocodile. Although the Service published a 90-day finding concluding that delisting may be warranted in 2006, it was not until 2011 that the Service issued a rule proposing to delist the species.  After receiving only five comments, in 2012 the Service published a final rule delisting the species.  In the final rule, the Service stated that delisting was warranted in light of the substantial population increase due to the elimination or significant reduction of threats to the species resulting from the restrictions on commercial harvest and trade. 

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U.S. Fish and Wildlife Service Denies Listing for Bald Eagles in the Sonoran Desert

The U.S. Fish and Wildlife Service (Service) recently announced (pdf) its decision that the Sonoran Desert Area population of bald eagles (Haliaeetus leucocephalus) does not warrant protection under the Endangered Species Act (ESA).  The Service's conclusion is the result of a revised 12-month finding on a petition to list the population as threatened or endangered under the ESA.  The Service concluded that the Sonoran Desert Area population of bald eagle does not qualify as a distinct population segment (DPS), and that listing the population is not warranted at this time.

The Service originally found that the Sonoran Desert Area population of bald eagles was not a listable entity under the ESA on February 25, 2010.  The Center for Biological Diversity and Maricopa Audubon Society challenged that decision in October 2010.  On November 30, 2011, the U.S. District Court for the District of Arizona ordered the Service to draft a new 12-month finding.

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NMFS Decides Against Listing Chinook Salmon in Upper Klamath and Trintity Rivers Basin

The National Marine Fisheries Service (NMFS) recently concluded that listing of the Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and Trinity Rivers Basin as threatened or endangered is not warranted.  The agency made the 12-month finding following receipt of a petition to list the species in January 2011 from the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company.

In its 12-month finding, NMFS included both spring-run and fall-run Chinook salmon populations in the Klamath River Basin upstream from the confluence of the Klamath and Trinity rivers in the population (referred to by NMFS as the evolutionarily significant unit or ESU) that it evaluated for the purpose of its regulatory determination.  NMFS rejected petitioners' contention that spring-run and fall-run Chinook salmon qualify as separate ESUs based on significant and persistent genetic and reproductive isolation resulting from their different run timing.

NMFS also considered hatchery stocks of Chinook salmon to be part of the ESU, finding that "each stock is no more than moderately divergent from other local, natural populations."  According to the agency, the decision to include hatchery stocks is consistent with its hatchery listing policy.  John Bowman reports that petitioners are reviewing the 12-month finding and evaluating whether the challenge it.  (Siskiyou Daily, April 6, 2012).

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U.S. Fish & Wildlife Service Determines Endangered Species Act Protection For Longfin Smelt Is Warranted But Precluded

The U.S. Fish & Wildlife Service (Service) has determined that protection under the Endangered Species Act (ESA) for the San Francisco Bay-Delta (Bay-Delta) population of longfin smelt is “warranted but precluded.” The Service also determined that listing the longfin smelt rangewide is not warranted at this time.

The Service’s decision is in response to a lawsuit brought by environmental groups challenging the Service’s 2009 determination (pdf) that the Bay-Delta population of longfin smelt is not distinct from other populations in the species’ geographic range. In a settlement agreement entered into in February 2011, the Service agreed to conduct a status review of the species, evaluating whether the entire range of longfin smelt should be listed as endangered or threatened, and reconsidering whether the Bay-Delta population of longfin smelt constitutes a distinct population segment (DPS) under the ESA.

In its decision published today in the Federal Register, the Service found (pdf) that the Bay-Delta longfin smelt meets the requirements of the Service’s DPS policy, and therefore can be listed under the ESA. The Service also determined, based on the best available scientific and commercial information, that listing the Bay-Delta DPS of longfin smelt is warranted but precluded by higher priority actions. The Service will add the Bay-Delta longfin smelt to its candidate species list, and will develop a proposed rule to list the smelt as its priorities allow. The Service will make a determination regarding critical habitat during the development of the proposed listing rule.
 

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Suit Filed in Effort to Force Service to Act on Petition to Delist Valley Elderberry Longhorn Beetle

The Pacific Legal Foundation has filed a lawsuit (pdf) in order to force the Fish and Wildlife Service to make a determination whether to delist the valley elderberry longhorn beetle (Desmocerus californicus dimorphus), a species with a distribution from southern Shasta County to Fresno County in California's Central Valley.  The lawsuit was reported by a number of news outlets including the Sacramento Bee (March 15, 2012, by Matt Weiser).

The valley elderberry longhorn beetle was listed by the Service as threatened under the Endangered Species Act (ESA) in 1980.  At that time, the Service stated (pdf), with respect to the distribution of the species, that "[t]he beetle is present known from less than 10 localities in Merced, Sacramento, and Yolo Counties."  In a five-year status review of the species (pdf) completed in 2006, the Service stated that "[s]ince the time of listing, the number of sites from which the beetle is known has increased from less than 10 to approximately 190 (California Fish and Game 2006), primarily due to an increased effort to look for the beetle."  In the status review, the Service recommending delisting of the species.  A subsequent action plan (pdf) dated 2009, indicated that a delisting rule "is currently under review" at the Service's headquarters in Washington, D.C.  And in 2011, in response to a petition to delist the beetle, the Service made a preliminary determination (pdf) that delisting may be warranted.

The fact that the Service recommended delisting in 2006, and two lawsuits and six years later the species remains listed, suggests that the federal government is failing to properly administer the ESA.

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Groups File Petition to List Gray Wolf under California Endangered Species Act

As Dean Kuipers reported in the Los Angeles Times, on February 27, four environmental groups petitioned the California Fish and Game Commission to list the gray wolf (Canis lupis) as endangered under the California Endangered Species Act.  The petition is available here (pdf).  As I previously reported, a lone gray wolf briefly crossed the border from Oregon to California in December 2011.  The last documented gray wolf in the State prior to that time was seen in 1924.

The status of the gray wolf under the federal Endangered Species Act is described here (pdf).

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Status of Spikedace and Loach Minnow Changed to Endangered

In a final rule (pdf) published today, the Fish and Wildlife Service ("Service") uplisted the spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) from threatened to endangered under the Endangered Species Act.  The Service also revised the designation of critical habitat for both species.  In total, approximately 630 miles are designated as critical habitat for spikedace and 610 miles are designated as critical habitat for loach minnow.  The critical habitat designations are in Arizona and New Mexico.  The Service excluded portions of the upper San Pedro River in Arizona as well as some Tribal lands and private lands in Arizona and New Mexico. 

Threats to both species include groundwater pumping, surface water diversions, impoundments, and channelization.  These changes to the flow  regime may decrease the amount of available habitat.  However, competition with or predation by nonnative species is considered the largest remaining threat to the species.  According to the Service, spikedace and loach minnow previously had a relatively widespread distribution covering portions of Arizona, New Mexico, and northern Mexico, but currently it is estimated that spikedace occur in only 10 percent of their former range and loach minnow occur in 10 to 20 percent of their former range. 

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California Fish and Game Commission Moves Ahead with Listings of Mountain Yellow-Legged Frog

As the Department of Fish and Game(DFG)  reported, at its February 2012 meeting the California Fish and Game Commission "moved to list the Sierra Nevada yellow-legged frog (Rana sierrae) as a threatened species and the southern mountain yellow-legged frog (R. muscosa) as an endangered species."  The latter is listed (pdf) as endangered under the federal Endangered Species Act (ESA), and a final rule (pdf) designating critical habitat for the species was promulgated in 2006.  The former is a candidate for listing under the federal ESA.

According to DFG, "Mountain yellow-legged frogs live in lakes, ponds, streams and meadows in the Sierra Nevada, Transverse and Peninsular mountain ranges of California."  DFG and the Commission, which are now acting to protect the species, likely contributed to its decline in the past by stocking alpine lakes in the State with non-native rainbow trout at the urging of the angling community.  As one journalist reported, other factors that have likely led to the decline of the species include pesticides and disease.  (Recordnet.com, Feb. 5, 2012, by Dana M. Nichols.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fish and Wildlife Service Poised to Publish Finding that Listing of Native Hawaiin Bird May be Warranted

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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Wildlife Service Reviewing the Status of Humboldt Marten for Potential Listing Determination

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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Fish & Wildlife Service Announces 90-Day Finding for Sierra Nevada Red Fox

Source: U.S. Forest ServiceThe 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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Black-Backed Woodpecker Named A Candidate

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

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

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

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

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

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

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

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

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

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

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

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

Fish and Wildlife Service Affirms Threatened Status of the Coastal California Gnatcatcher

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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U.S. Fish and Wildlife Service Declares Protection for California State Fish Unnecessary

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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Fish & Wildlife Service Determines Protection Not Warranted for Mojave Ground Squirrel

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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Loggerhead Sea Turtle Listing Divided Into Nine Distinct Population Segments

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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Fish & Wildlife Service Proposes Listing for the Franciscan Manzanita

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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National Marine Fisheries Service Publishes Five-Year Review Reports on ESA-Listed Salmon and Steelhead

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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Fish and Wildlife Service Declares Recovery of Lake Erie Water Snake

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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Fish and Wildlife Service Lists Miami Blue Butterfly on Emergency Basis

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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Five Southern Fish Species Listed as Endangered

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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Fish and Wildlife Service Finds Listing Whitebark Pine is "Warranted but Precluded"

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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Fish and Wildlife Service Announces Revised Work Plan to Address Species Listing

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.

 

Court Upholds the Fish and Wildlife Service's Interpretation of "Endangered Species" and Decision to List the Polar Bear as Threatened

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.

National Marine Fisheries Service Reaffirms Threatened Status for Oregon Coast Coho Salmon

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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Legislation Introduced to Authorize Lethal Removal of Sea Lions

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.

Senator Inhofe Proposes Amendment Exempting Lesser Prairie-Chicken from Endangered Species Act Protection

Lesser prairie chicken

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.

Senator Cornyn Amendment Would Block Listing of Dunes Sagebrush Lizard

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.

Fish and Wildlife Service Soliciting Comments for Five Year Review for Several California Species

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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Court Stays Approval of Proposed Settlement to Address Species Backlog

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.

Obama Administration Withdraws Controversial Solicitor Opinion

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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Fish and Wildlife Service Withdraws Proposal to List Mountain Plover

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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Proposed Lizard Listing Sparks Protests

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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Fish and Wildlife Service Flooded with Petitions to List Species under the Endangered Species Act

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 Part of Budget Deal, Congress is Poised to Remove Gray Wolves from the Endangered Species List

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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Federal Judge Denies Proposed Settlement to De-List the Gray Wolf

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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NMFS Finds that Listing May be Warranted for Chinook Salmon in the Upper Klamath Basin

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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U.S. Fish and Wildlife Service Proposes to Cap Funding for Endangered Species Act Listing Petitions

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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Settlement Reached to De-List the Gray Wolf

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

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

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

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

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

U.S. Fish and Wildlife Service to Evaluate Whether to List Gunnison Sage-Grouse

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.

DFG Opens Comment Period on Adding Mountain Yellow-Legged Frog to California's Endangered Species List

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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Fish and Wildlife Service Issues Proposed Rule to Reclassify Wood Bison From Endangered to Threatened

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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Fish & Wildlife Service to Decide Whether the Walrus Should Be Listed as Endangered Due to Global Warming

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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U.S. Fish and Wildlife Service to Review the Status of Six California Species

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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Federal Government Explains Guidelines Used To List Species as Threatened or Endangered

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.

Fish and Wildlife Service Releases List of Candidate Species for Federal Protection

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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Fish and Wildlife Lists Three Mussels and Snails Under the Endangered Species Act

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.

U.S. Fish & Wildlife Service Proposes to Redesignate Critical Habitat for Spikedace & Loach Minnows and Reclassify Species

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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Spotted Seals Denied Protection in Alaska, Granted Protection in China and Russia

The National Marine Fisheries Service (NMFS) has denied protection for spotted seal populations in Alaskan waters.   NMFS did, however, formalize protection for smaller populations of spotted seals in Liaodong Bay, China and Peter the Great Bay, Russia.  This region is home to a population of approximately 3,300 seals.

Spotted seals primarily inhabit waters of the north Pacific Ocean and adjacent seas.  During their breeding season, they are often spotted in the outer areas of ice flows, where they use the edge of the sea ice away from predators as safe habitat breeding in winter and spring.  They face threats from sea-ice loss due to climate change, which melts the ice that they depend on for giving birth, nursing pups, resting and molting.  Climate change also depletes spotted seal prey through ocean acidification.

This decision reaffirmed NMFS's denial of protection to a significant population of spotted seals inhabiting Alaskan and Russian waters.  There are approximately 100,000 seals in this region of the Bering Sea near Kamchatka, in the Gulf of Anadyr in Russia, and in the eastern Bering Sea in Alaskan waters.  NMFS stated that sea-ice loss does not threaten these populations because they will either adapt to life on land or migrate to suitable habitat elsewhere.

The Center for Biological Diversity filed a petition (PDF) to protect spotted seals, bearded seals, and ringed seals in May 2008.  NMFS is required to make a finding regarding protection for ringed and bearded seals by the end of the year.

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The American Pika Gets Another Shot at CESA Protection

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.

No Federal Protection for the Sacramento Splittail

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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African Penguin Listed as Endangered Due, in Part, to Climate Change

African penguin Spheniscus demersus at Boulders Beach, Simonstown, Cape Town, Western Cape, South AfricaIn 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."

Mountain Yellow-Legged Frog Declared a Candidate Species by the California Fish and Game Commission

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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Bill Introduced to De-List the Gray Wolf

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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Listing of Gunnison sage-grouse is "warranted but precluded."

Male Gunnison Sage-GrouseOn 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.

Fish and Wildlife Service Determines Listing May be Warranted for Plant Species Endemic to San Francisco Peninsula and Believed Extinct for Over 50 Years

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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Fish and Wildlife Service Lists Five Species of Penguin as Threatened

Yellow-eyed PenguinIn 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.

Campaign to Use Endangered Species Act to Regulate Greenhouse Gas Emissions Marches On

American PikaIn 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.

Fish and Wildlife Service to Review Prospect of Listing Whitebark Pine Due to Climate Change

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. 

Fish and Wildlife Service to List Seven Penguin Species

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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Hearing Date for California Tiger Salamander Listing Decision Changed to May 20, 2010

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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Fish and Wildlife Service to Review Hermes Copper Butterfly for Possible Protection

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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Endangered Species Act Protection "May Be Warranted" For Mohave Ground Squirrel

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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Fish and Wildlife Service Initiates Status Review of Sacramento Splittail; Comment Period Ends May 20, 2010

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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Fish and Wildlife Service Finds Delta Smelt Warrants Uplisting from Threatened to Endangered

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." 

 

 

Comment Period for California Tiger Salamander Listing Decision Open Until Hearing on May 5, 2010

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. 

National Marine Fisheries Service Lists Pacific Smelt As Threatened

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.    

Groups Sue Over Greater Sage Grouse Candidate Determination

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.

Greater Sage Grouse Listing Warranted But Precluded

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

NRDC Sues to List Whitebark Pine Claiming Exacerbated Threat Due to Climate Change

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. 

Tiger Salamander Protected Under California's Endangered Species Act

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.

Fish and Wildlife Service Reinstates Proposed Listing of the Flat-Tailed Horned Lizard

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.

 

Lawsuit Seeking Listing of Sonoran Desert Tortoise Expands Endangered Species Act-Solar Development Conflict

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. 

Successful Court Challenge Results in Second Denial for Coastal Cutthroat Trout

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.

Highly Anticipated Sage Grouse Listing Decision Likely Delayed One Week

Greater Sage Grouse - USGS PhotoAs 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."

Four Lawsuits Filed Over Delay on Petitions to List 93 Species

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)

National Marine Fisheries Service to Determine if 82 Species of Coral are Threatened or Endangered by Climate Change

Euphyllia paradivisaOn 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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Fish and Wildlife Service Determines American Pika Not Endangered by Climate Change

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 Diversitycriticizes 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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