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Endangered Species Law and Policy

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Ninth Circuit Rules Injury from Future Water Rights Restrictions Too Speculative for Article III Standing

Posted in Court Decisions, Uncategorized

On February 21, 2017, the U.S. Court of Appeals for the Ninth Circuit held that the San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively, “Water Contractors”) lacked Article III standing to pursue an Endangered Species Act (“ESA”) claim against the U.S. Department of the Interior and U.S. Bureau of Reclamation (collectively, the “Federal… Continue Reading

President Trump Announces Supreme Court Nominee

Posted in Uncategorized

On January 31, 2017, President Trump announced Judge Neil M. Gorsuch as his nominee to fill the ninth seat of the United States Supreme Court, left vacant since Justice Antonin Scalia’s passing in February 2016.  Judge Gorsuch currently sits as a judge on the United States Court of Appeals for the Tenth Circuit.  President George… Continue Reading

U.S. Supreme Court Denies U.S. Forest Service’s Petition for Review in Canadian Lynx Case

Posted in Court Decisions, Uncategorized

On October 11, 2016, the U.S. Supreme Court denied the U.S. Forest Service’s (“Forest Service”) petition for writ of certiorari to review the U.S. Court of Appeal for the Ninth Circuit’s decision in Cottonwood Environmental Law Center v. Forest Service, 789 F.3d 1075 (9th Cir. 2015).  The key issues in the case related to standing, the justiciability of… Continue Reading

National Marine Fisheries Service and U.S. Fish and Wildlife Service Propose Listing One Hawaiian Species and Four Marine Species

Posted in Uncategorized

On September 19, 2016, the National Marine Fisheries Service (NMFS) published proposed rules to list two species of dolphin and two species of guitarfish under the Endangered Species Act (ESA).  NMFS proposes to list the Maui’s dolphin (Cephalorhynchus hectori maui) as endangered under the ESA and the South Island Hector’s dolphin (Cephalorhynchus hectori hectori), the common… Continue Reading

August 4th Endangered Species Act Rulemakings

Posted in Uncategorized

On August 4, 2016, the U.S. Fish and Wildlife Service (Service) issued a final rule confirming its 2011 revision to the designation of critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The Service listed the marbled murrelet as threatened under the Endangered Species Act in 1992.  In 1996, the Service designated 3,887,800 acres across Washington, Oregon,… Continue Reading

Supreme Court Declines to Give Chevron Deference to Agency Regulation that Departed from Prior Agency Practice

Posted in Court Decisions, Litigation, Uncategorized

On June 20, 2016, the U.S. Supreme Court issued a 6-2 opinion in Encino Motorcars, LLC v. Navarro et al., holding that the U.S. Department of Labor (Labor Department) was not entitled to receive Chevron deference with respect to its 2011 regulation addressing overtime exemptions in the auto industry.  No. 15-415, slip op. (June 20,… Continue Reading

Long Awaited Eagle Rule Revamp Out for Public Comment

Posted in Uncategorized

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published its proposed revisions to the Bald and Golden Eagle Protection Act (“BGEPA”) permit program.  The stated intention of these proposed revisions is to improve upon the 2009 regulations establishing a permit program under BGEPA.  In 2012, the Service issued an advance notice of… Continue Reading

Court Holds that the Bureau of Indian Affairs is Not Obligated to Ensure Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act Compliance When Granting Right-of-Way to Industrial-Scale Wind Farm

Posted in Uncategorized

On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (“BIA”) in a lawsuit involving the grant of a lease to Tule Wind, LLC for construction of the second phase of an industrial-scale wind energy facility. The Protect Our Communities… Continue Reading

Major Changes Underway at the California Fish and Game Commission

Posted in Uncategorized

The California Fish and Game Commission (Commission) is in the midst of major changes.  The Commission, which was established in 1870, has been led by a body of five commissioners since 1937.  The Commission has a small staff to support its activities, which include listing and delisting threatened and endangered species under the California Endangered… Continue Reading

U.S. Fish and Wildlife Service to Delist Texas Shrub

Posted in Delisting, Uncategorized

The U.S. Fish and Wildlife Service (USFWS) has announced that it will remove the Johnston’s frankenia (Frankenia johnstonii) from the Federal List of Endangered and Threatened Plants under the Endangered Species Act.  Johnson frankenia is a perennial shrub endemic to Starr, Webb and Zapata Counties in Texas and the northeastern part of the Mexican states… Continue Reading

CESAR Files Delta Smelt ESA Suit Against DWR, Interior and USFWS

Posted in Uncategorized

On November 19, 2015, the Center for Environmental Science, Accuracy and Reliability (CESAR) filed a lawsuit against the California Department of Water Resources (DWR), the U.S. Department of the Interior (Interior) and the U.S. Fish & Wildlife Service (USFWS) (collectively, Federal Defendants) for violating the Endangered Species Act (ESA) in connection with the installation, operation and removal… Continue Reading

United States Geological Survey and Other Agencies Announce Sagebrush Restoration Handbook Series

Posted in Conservation, Uncategorized

On the heels of the recent U.S. Fish and Wildlife Service (Service) decision not to list the greater sage grouse (Centrocercus urophasianus) under the Endangered Species Act and the concurrent Bureau of Land Management (BLM) issuance of Records of Decision on over 98 land use plans focused on sagebrush habitat, the United States Geological Survey… Continue Reading

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

Posted in Court Decisions, Fish & Wildlife Service, Uncategorized

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird” protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA… Continue Reading

A Legal Morass: Overlapping Takings Law With the Endangered Species Act

Posted in Court Decisions, Litigation, Uncategorized

Last week, Jeremy Jacobs posted an interesting article about the U.S. Supreme Court’s recent decision in Horne v. Dep’t of Agriculture, No. 14-275 (U.S. Jun. 22, 2015), and its potential application to Endangered Species Act (ESA) jurisprudence.  (See Raisin ruling seen as lifeline for endangered species, published by Greenwire on August 19, 2015).  In Horne, the U.S…. Continue Reading

California Department of Fish and Wildlife Proposes Rules Relating to Nesting Birds and Birds of Prey

Posted in Conservation, Regulatory Reform, Uncategorized

On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey.  Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5.  In pertinent part, these sections make it… Continue Reading