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

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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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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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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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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On August 30, 2011, the U.S. Fish and Wildlife Service (Service) announced that it will designate under section 4 of the federal Endangered Species Act approximately 47,383 acres of critical habitat for the Sonoma County Distinct Population Segment of the California Tiger Salamander (Ambystoma californiense).  The Service had previously re-opened the comment period on its proposed critical habitat designation on June 21, 2011, in order to allow interested parties to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit.  (For a history of the Service's critical habitat designation, please see Lauren Valk's January 21, 2011 and June 23, 2011 posts.)  Although the final designation will include the 4,945 acres proposed on June 21, the total area designated is a reduction of 26,840 acres from the original 2005 proposed rule.  The final rule will be published tomorrow in the Federal Register.

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

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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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In a settlement agreement (pdf) filed in federal court on July 5, 2011, the National Marine Fisheries Service (NMFS) agreed to issue a final rule by November 15, 2011, likely revising the critical habitat for the endangered leatherback sea turtle (Dermochelys coriacea) to include waters off the U.S. West coast. 

NMFS initially designated critical habitat for the leatherback in 1979, issuing a final rule (pdf) designating critical habitat only in waters adjacent to Sandy Point Beach, St. Croix, U.S. Virgin Islands.  In 2007, the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network filed a petition (pdf) requesting that NMFS revise the critical habitat designation to include areas off the California and Oregon coasts.  While NMFS determined (pdf) in 2007 that the petition presented substantial scientific information indicating that the petitioned action may be warranted, it did not issue a proposed rule (pdf) to revise the critical habitat designation until January 5, 2010.  Under the proposed rule, NMFS would revise the leatherback's designated critical habitat to include approximately 70,600 square miles of ocean waters.

On April 19, 2011, because NMFS had not issued a final rule revising the leatherback's designated critical habitat, the environmental organizations filed a lawsuit alleging that the failure to issue a final rule was in violation of the federal Endangered Species Act.  On July 5, 2011, the parties filed a settlement agreement obligating NMFS to issue a final rule by November 15, 2011.  While NMFS is not obligated under the settlement agreement to adopt the proposed rule, or any other specific substantive outcome, it is anticipated that the final rule will designate critical habitat off the coasts of California, Oregon, and Washington. 

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The wildfires in Arizona have raged through forests and burned down homes, but as recently reported by the Washington Post, three packs of endangered Mexican gray wolves (Canis lupus baileyi) appear to have been spared.  (Story by Associated Press, June 23, 2011).  Firefighters have spotted two of the three packs moving around with their pups, and researchers were able to confirm the survival of at least three wolves from the third pack via radio collar data.  It is currently unknown whether pups from the third pack have survived the fires, but a spokesman for the Arizona Game and Fish Department said that they are confident that all of the wolves and their pups are alive.

The story notes that given the extent of the fires, it is unlikely that the Mexican spotted owl (Strix occidentalis lucida) has fared as well.

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On June 7, 2011, the U.S. Fish and Wildlife Service (Service) issued a final rule under section 4 of the federal Endangered Species Act revising the critical habitat designated for the Pecos assiminea (Assiminea pecos), and designating critical habitat for the Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), and Noel's amphipod (Gammarus desperatus).  The designated critical habitat for the four endangered species, which occur primarily in sinkholes, springs, and associated spring runs and wetland habitats, is located in Chaves County, New Mexico, and Pecos and Reeves Counties, Texas.  

Although the shrimp (Noel's amphipod) and three snails were added to the endangered species list in 2005, the Service initially designated only 396.5 acres of critical habitat for the Pecos assiminea; the Service did not designate any critical habitat for the other three species.  In 2009, however, in response to a complaint filed by Forest Guardians (now WildEarth Guardians), the Service agreed to revisit its critical habitat designation.  As a result, the Service designated in its final rule approximately 70.2 acres as critical habitat for the Roswell springsnail and Koster's springsnail, approximately 75.9 acres as critical habitat for the Noel's amphipod, and approximately 494.7 acres as critical habitat for the Pecos assiminea. 

The Service notes in the final rule that, as previously stated in 2005, the primary "threats to the four invertebrates include reducing or eliminating water in suitable or occupied habitat through drought or pumping; introducing pollutants to levels unsuitable for the species from urban areas, agriculture, release of chemicals, and oil and gas operations; fires that reduce or eliminate available habitat; and introducing nonnative species into the invertebrates' inhabited spring systems such that suitable habitat is reduced or eliminated."

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