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

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

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

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

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

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A NOAA task force, made up of representatives from state and federal agencies, tribes, and interest groups, voted on Monday to recommend that NOAA Fisheries permit Oregon and Washington to remove up to 85 California sea lions a year in order to protect listed salmon and steelhead.  Under the Marine Mammal Protection Act (“MMPA”), NOAA is charged with protecting marine mammals such as the California sea lion; but, NOAA is also the lead agency responsible for saving Columbia River salmon and steelhead, which are listed under the Endangered Species Act ("ESA").  Since 2002, California sea lions have been preying on stocks of salmon and steelhead below the Bonneville Dam, where the species congregate as they prepare to move upstream.

NOAA has twice authorized lethal removal of California sea lions in this area.  In 2010, a lawsuit filed by the Humane Society stopped the program briefly (see NMFS Suspends Lethal Removal of Sea Lions in Oregon and Washington).  When the program resumed, the Humane Society filed a second lawsuit, halting the sea lion removal again.

NOAA expects to make a decision by March 2012 on whether to grant a new permit.

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Last week, the Fish & Wildlife Service (Service) announced a 12-month finding (PDF) that the Mohave ground squirrel (Spermophilus mohavensis) does not warrant protection as a threatened or endangered species under the Endangered Species Act (ESA). The Service’s finding was in response to a petition from the Defenders of Wildlife and a private citizen to list the species as endangered.

In April 2010, the Service issued a finding that concluded the petition presented substantial scientific or commercial information indicating that listing the Mohave ground squirrel may be warranted; however, after review of the available scientific and commercial information on the species, the Service has now concluded there are no substantial threats to the Mohave ground squirrel throughout its range. 

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

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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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The Fish and Wildlife Service (“Service”) announced a proposed rule (pdf) this week to revise critical habitat for the federally endangered Coachella Valley milk-vetch (Astragalus lentiginosus var. coachellae).  The proposed rule would designate approximately 25,704 acres of land in Riverside County, California as critical habitat for the plant, which is endemic to the Coachella Valley. The four geographic units proposed as critical habitat include sand transport and deposition areas associated with: San Gorgonio River and Snow Creek, Whitewater River, Mission Creek and Morongo Wash, and the Thousand Palms area.

The proposed rule is the result of a lawsuit filed against the Service by the Center for Biological Diversity challenging the final critical habitat designation for the plant in 2005.  At that time, the Service designated zero acres of critical habitat because it found that all habitat with essential features was located within areas to be conserved and managed by the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP/NCCP") or was within areas conserved within the Coachella Valley Preserve System under the Coachella Valley fringe-toed HCP.

For similar reasons, the Service is again considering excluding from the proposed designation over 18,446 acres of land covered by the MSHCP/NCCP, the City of Desert Hot Springs, and the Agua Caliente Band of Cahuilla Indians and Morongo Band of Mission Indians.  It reasons that "the land managers sufficiently provide conservation for the plant; exclusion will encourage the continuation and strengthening of cooperative partnerships; or areas subject to the implementation of management plans provides equal to or more conservation than the designation of critical habitat would provide.”

Habitat components essential to the plant’s long-term survival include sands from transport channels/corridors and deposition sites.  Unoccupied stream channels within drainage systems provide for water transported sands essential for the conservation of the plant.

Comments and information on the proposed revision can be submitted electronically beginning on August 25, 2011 and must be received by October 24, 2011.

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The National Marine Fisheries Service (“NMFS”) has suspended its letter of authorization (“LOA”) under Section 120 of the Marine Mammal Protection Act (“MMPA”) allowing the States of Oregon and Washington to lethally remove California sea lions caught eating endangered salmon and steelhead in the Columbia River.  NMFS cited pending litigation in Federal court and limited sea lion activity for its decision, and invited the states to renew their request for an LOA in 2012.  NMFS’ decision comes in the wake of an agreement (see earlier post) between wildlife advocates and the two states to temporarily suspend lethal sea lion removal as well as legislation introduced in the House of Representatives that would permit the states to remove sea lions without complying with the MMPA (see prior post regarding H.R. 946).

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The Fish and Wildlife Service (Service) announced (pdf) that it has re-opened the comment period on its August 18, 2009 proposed designation of critical habitat for the Sonoma County Distinct Population Segment of the California tiger salamander (Ambystoma californiense) under the Endangered Species Act.  The Service is reopening the comment period to allow interested parties an opportunity to comment on the proposed addition of 4,945 acres of critical habitat for the Santa Rosa Plain Unit as described in the January 18, 2011 notice (pdf).  In total, the Service is proposing to designate approximately 55,800 acres of land as critical habitat for the species.  The deadline to submit comments is 11:00 pm Eastern Time on July 5, 2011.

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The National Marine Fisheries Service has proposed (pdf) revising the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) pursuant to section 4 of the Endangered Species Act (ESA) by extending the current designation in the northwestern Hawaiian Islands out to the 500-meter depth contour, including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands, including Kaula Island, Niihau, Kauai, Oahu, Maui nui, and Hawaii.  One article reporting on the proposal states that "[t]he Hawaiian monk seal is facing some of the most severe threats to survival of any federally protected animal."  (The Maui News, June 3, 2011, by Audrey McAvoy.)

The Hawaiian Monk Seal was listed (pdf) as endangered throughout its range under the ESA in 1976.  In 1986, critical habitat for the species was designated at all beach areas, sand splits and inlets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 18.3 meters around Kure Atoll, Midway Islands (except Sand Island), Pearl and Hermes Reef, Lisiankski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island.  In 1988, critical habitat was expanded to include Maro Reef and waters around previously designated areas out to the 36.6 meter isobath. 

Comments on the proposed rule must be received no later than August 31, 2011.

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On April 20, 2011, the San Francisco Superior Court issued a peremptory writ of mandate (PDF) enjoining the California Department of Fish and Game (DFG) from implementing a pilot program to facilitate recovery of the Klamath Basin coho salmon (Coho) and compliance by farmers with the DFG's Lake and Streambed Alteration Program (referred to as the Shasta Valley and Scott River Watershed-Wide Permitting Programs).

In March 2005, the California Fish and Game Commission listed the Coho as threatened under the California Endangered Species Act (CESA).  Therefore, the taking of Coho is illegal without authorization from DFG.

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This week the National Marine Fisheries Service (NMFS) designated (PDF) 3,013 square miles (nearly 2 million acres) of marine habitat in Alaska as critical habitat for the Cook Inlet beluga whale. NMFS listed the species as endangered (PDF) in 2008 under the Endangered Species Act (ESA). Critical habitat was subsequently proposed (PDF) in 2009. The final rule includes several small changes to the areas proposed as critical habitat—most importantly, it excludes the Port of Anchorage for reasons relating to national security as well as portions of military lands.

The beluga whale is a northern hemisphere species that inhabits fjords, estuaries, and shallow waters of the Arctic and subarctic oceans. The Cook Inlet population is numerically the smallest of five distinct stocks recognized in Alaska. The Cook Inlet borders the City of Anchorage and is the most populated and fastest-growing watershed in Alaska.  The final rule announcing the species’ critical habitat will become effective on May 11, 2011.

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