Endangered Species Law & Policy

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA).

In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change ...

On August 11, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to delist the Apache trout (Oncorhynchus apache) under the Endangered Species Act (ESA) due to the species’ recovery.  The Apache trout, the state fish of Arizona, is a species of freshwater fish that is found primarily in the mountain region of southeast Arizona.  This species was initially listed as an endangered species under the ESA in 1967.  Then, in 1975, the Service downlisted the species to threatened status.  The ESA defines a threatened species as one that is “likely to become ...

On October 18, 2022, the U.S. Fish and Wildlife Service (Service) announced 12-month findings on a petition to list three California-based salamander species under the Endangered Species Act (ESA): the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus). All three salamander species occur in the southern Sierra Nevada Mountains in California. The Service determined that listing the Kern Canyon slender salamander and the relictual slender salamander is ...

The Council on Environmental Quality (CEQ) has finalized revisions to portions of the agency’s National Environmental Policy Act (NEPA) implementing regulations (Phase I Regulations), which had been revised in 2020 under the Trump Administration (2020 Regulations). CEQ received more than 90,000 public comments in response to its proposal to revise the 2020 Regulations. In its final Phase I Regulations, CEQ declined to make substantial changes to the version proposed.

CEQ has indicated that the Phase I Regulations represent a “narrow” set of changes to address the Biden ...

This week, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the sand dune phacelia (Phacelia argentea) as threatened under the Endangered Species Act (ESA), along with a proposed section 4(d) rule that would prohibit several activities with respect to the species.  The proposed rule also includes a designation of approximately 252 acres of critical habitat in Del Norte County in California, and Coos and Curry Counties in Oregon. 

The sand dune phacelia is an evergreen, herbaceous, flowering perennial in the forget-me-not family of plants.  It blooms from ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule reclassifying the Morro shoulderband snail (Helminthoglypta walkeriana) from endangered to threatened under the Endangered Species Act (ESA). The final rule also includes a rule issued under ESA section 4(d) to provide for the conservation of the species.

The Morro shoulderband snail, or banded dune snail, is a type of terrestrial snail named after the dark band on the shoulder of its shell. The species is typically found in dense clumps of grass, young patches of ice plant, and stockpiled anthropogenic ...

On January 25, 2022, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti) as endangered under the Endangered Species Act (ESA).

The Sacramento Mountains checkerspot butterfly is a small butterfly with dark brown, red, orange, and cream coloring, punctuated by black spots and dark lines, on its wings. The butterfly is a subspecies of the Anicia checkerspot, or variable checkerspot, in the Nymphalidae family, and is native to the Sacramento Mountains in south-central New ...

On December 22, 2021, the U.S. Fish and Wildlife Service (Service) proposed to list the cactus ferruginous pygmy owl (Glaucidium brasilianum cactorum) (Owl) as threatened under the Endangered Species Act (ESA) primarily due to threats from climate change and habitat loss and fragmentation. The Service has also proposed to issue an ESA section 4(d) rule which would prohibit “take” of the Owl in most cases, while exempting from the prohibition certain land management activities compatible with restoration and improvement of Owl habitat where such activities have been ...

On October 14, 2021, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list the bog buck moth (Hemileuca maia menyanthevora) (= H.iroquois) as endangered under the Endangered Species Act (ESA). The Federal Register notice also states that the Service will make a final determination on the proposed listing within one year, and that it is seeking comments on the proposed designation.

The bog buck moth occurs in groundwater-fed wetlands in Oswego County, New York, and Ontario, Canada, with large amounts of bog buckbean (a plant that is a key food source, or “host plant” for bog buck moth larvae, much as milkweed is a host plant for monarch butterfly larvae). …

On September 20, 2021, the U.S. District Court for the Central District of California set aside the U.S. Fish and Wildlife Service’s (Service) negative 12-month finding (Finding) on a petition by WildEarth Guardians (Guardians) to list the Joshua tree (Yucca brevifolia) as threatened under the Endangered Species Act (ESA).

The petition had alleged that the Joshua tree is threatened by the effects of climate change and its associated effects, including drought and increasing wildfires. On September 14, 2016, the Service issued a positive finding on Guardians’ petition ...

Linear infrastructure projects, including oil and gas pipelines, electric transmission lines and transportation, have faced a number of regulatory challenges over the last year. Some of these challenges stem from changes in regulatory schemes, adverse court holdings or drastically shifting policy initiatives. Others result from the uncertainty inherent in pending listing decisions under the Endangered Species Act, updates to the Nationwide Permitting Program under the Clean Water Act, the ever-changing definition of Waters of the United States and the Biden ...

The first 100 days of a new administration can define what lies ahead for the next four years. Join our panel of Nossaman Environment & Land Use attorneys from across the U.S. on April 15, 2021 from 11:00 a.m. – 12:30 p.m. PT as we review and evaluate the Biden administration’s first 100 days of policy moves involving environmental and natural resources management.

We will discuss efforts to fill leadership roles at CEQ, EPA, Interior, DOT and other federal agencies. Updates and analysis will be provided regarding key areas of policy, legislation and regulation, including:

• Climate ...

Please join me for Law Seminars International’s virtual event, CEQA and the NEPA Rewrite Seminar, on July 29th. From 2:00 to 2:45 p.m. PT, I will be presenting “Climate Change and Cumulative Impacts Analysis: Energy Infrastructure Projects,” and speaking on the...

The Eno Center for Transportation published a two-part article in the Eno Transportation Weekly, authored by Ed Kussy, that focuses on the potential implications of the changes proposed by the Notice of Proposed Rulemaking (NPRM) modifying the regulations implementing the National Environmental Policy Act (NEPA), with particular emphasis on federal surface transportation programs.  The first part was published on February 21.  We recently posted our summary of Part 1 of the article here.

Part 2 of the Eno article focuses on four parts of the NPRM that have received considerable attention ...

On January 10, 2020, the Council on Environmental Quality (CEQ) proposed amendments to National Environmental Policy Act (NEPA) implementing regulations.  The Proposed Rule would represent the first significant overhaul of CEQ’s NEPA regulations in more than 40 years.

The changes in the Proposed Rule are substantial and numerous. 

While the stated purpose of the changes is to facilitate more effective and timely environmental review of federal agency actions, the practical impact of the proposed changes is far from clear.  Below, we focus on some of the more significant ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted ...

Nossaman’s Environmental Practice attorneys will be off to a great start in 2019 presenting at many key events around the U.S. focused on endangered species and environmental issues.

The distinct population segment of the North American wolverine (Gulo gulf luscus) has had a long and difficult history with the Endangered Species Act (ESA).  However, things appeared to be changing in 2013, when, after denying a number of prior listing petitions at various stages of the process, the U.S. Fish and Wildlife Service (Service) announced its proposal to list the wolverine as a threatened species under the ESA, citing anticipated habitat loss due to climate change.  (See our February 3, 2013 post for a summary of this history.)  While this put the wolverine squarely on ...

On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal).  The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list the wolverine as a threatened species under the Endangered Species Act (ESA).  The court’s decision is the newest chapter in what has been a contentious and storied path to a listing decision for the North American ...

On December 3, 2014, the National Marine Fisheries Service (NMFS) published its proposed rule designating critical habitat for the threatened Arctic Ringed Seal (Phoca hispida hispida).  (79 Fed. Reg. 71,714).  The proposed designation, if finalized, would mark one of the largest critical habitat designations in the Bering, Beaufort, and Chukchi seas, consisting of millions of acres.  The seal, which was designated as a threatened species under the Endangered Species Act (ESA) in December 2012, is the smallest of the northern seals with an average lifespan of 15 to 28 years. (77 ...

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 ...

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

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

As noted in our blog post ...

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 ...

The regulatory requirements of the Endangered Species Act ("ESA") are imposing limitations on the development of renewable energy projects in the California desert. State and federal regulatory agencies are attempting to expedite ESA and other environmental reviews of proposed renewable energy projects. But the jury is out on whether these efforts will succeed. The ability of California to implement its precedent-setting climate change legislation hangs in the balance. As Governor Schwarzenegger stated "If we cannot put solar power in the Mojave Desert, I don't know where the ...

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 ...

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

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

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

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

Listing of this tiny relative of the rabbit . . . could have been a very big deal . . . . 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 . . . could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act.