Fish and Wildlife Service Delists Foskett speckled dace

On September 13, 2019, the U.S. Fish and Wildlife Service (Service) posted a final rule removing the Foskett speckled dace (Rhinichthys osculus ssp.) from the federal List of Endangered and Threatened Wildlife.  The dace, which was listed under the Endangered Species Act (ESA) as a threatened species in 1985, is being removed from the List of Threatened and Endangered Species on the basis of recovery.  In its final notice, the Service indicates that the threats to the dace have been “eliminated or reduced to the point where [the dace] no longer meets the definition of an endangered or threatened species” under the ESA.  The Service’s final rule will become effective on October 15, 2019.

The dace is a small fish that is native to Oregon, primarily inhabiting the Warner Basin and Alkali Subbasin, and was subject to a 1998 recovery plan that encompassed both the dace and two other native fish species that live within those two water bodies.  In its original listing decision, the Service noted that the primary threats to the dace were  livestock use of its habitat, mechanical modification of its habitat, and pumping of groundwater and lowering of the water table. The 1985 listing decision also noted that the dace lacked sufficient state protections.  Although it was listed at the state level as a fully protected species, Oregon law did not provide for critical habitat and there was no recovery plan or management plan for the dace.   Finally, the original 1985 listing determination indicated that the potential introduction of exotic species, the species’ small and relatively isolated population size, and the lack of connectivity to other water bodies were other factors that threatened the species.  While some of these threats remain, the Service’s final rule concludes that the Bureau of Land Management and the Oregon Department of Fish and Wildlife’s actions in the years since 1985 have significantly decreased the threats to the dace to the point where it is no longer in danger of becoming endangered or extinct in the foreseeable future.  The final rule also concludes that climate change is not a significant threat to the species, because the dace prefers deeper portions of the Foskett springs, which are less likely to be impacted by increased surface temperatures.

The Service’s decision to delist the dace followed a routine five-year review of the species’ status, as required by the ESA.  The five-year review revealed that the species’ population has increased in the years since its listing, and that the livestock and water use threats that once existed have significantly decreased over that time.  After the delisting rule goes into effect on October 15, the Service will continue monitoring the status of the species with the assistance of Oregon state-based partners for a period of five years.

FWS Rejects Petitions to List Yellowstone Bison, But Other Listing and Critical Habitat Designations May be Warranted

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.

According to FWS, the Yellowstone bison, a subset of Plains bison in and around Yellowstone National Park, are the oldest and largest wild population of Plains bison remaining. They comprise the last bison herd in the United States descending from a continuously wild herd.

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FWS Decides Not to List Joshua Tree and Other Species Under the ESA

Yucca brevifolia

On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA).  Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana).  These decisions came on the heels of the agency’s publication of proposals to, among other things, change the way these types of species listing decisions are made.  (Our earlier reporting on that topic is here.)

The FWS’ decision not to list the Joshua tree occurred under the current ESA regulations, not the newly proposed ones.  An environmental non-profit organization, Wild Earth Guardians, petitioned the FWS in September 2015 to list the Joshua tree as threatened and, if applicable, designate critical habitat for the species.  FWS conducted an initial 90-day review of the petition, determining that the petition presented substantial scientific or commercial information indicating that listing might be warranted.  FWS then undertook a more detailed 12-month review of the status of the Joshua tree.

In its 12-month finding following its species status review, the FWS noted that the primary stressors to the two species of Joshua tree include wildfire, invasive plants, the effects of climate change, and habitat loss.  The FWS concluded that while these stressors are affecting individual Joshua trees, there was no evidence the trees are experiencing the stressors at a population-level or species-level scale.  The FWS concluded that the Joshua tree is not in danger of extinction or likely to become so within the foreseeable future, citing, among other things, (1) the long-lived nature of the species, (2) the large ranges and distributions of the species, and (3) the fact that Joshua trees mostly occur on Federal lands.

Concurrently with its 12-month finding on the Joshua tree, FWS also made negative 12-month findings on petitions to list three species of mussels (Cyclonaias aurea, Cyclonaias houstonensis, and Alasmidonta varicosa), the tricolored blackbird (Agelaius tricolor), the yellow-banded bumble bee (Bombus terricola), the Arapahoe snowfly (Arsapnia arapahoe), and the seaside alder (Alnus maritima).  In a separate notice, the FWS also made positive 90-day findings on petitions to list the lake sturgeon (Acipenser fulvescens) as endangered or threatened and to reclassify the Gila topminnow (Poeciliopsis occidentalis occidentalis) from endangered to threatened, along with a negative 90-day finding on a petition to list the Siskiyou Mountains salamander (Plethodon stormi).  FWS will now conduct additional review on the lake sturgeon and the Gila topminnow, and has asked the public to provide any new scientific or commercial data or other information concerning the statuses of, or threats to, those species.

ESA Regulatory Reform Package Crosses the Finish Line

More than a year after the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published proposals to revise several Endangered Species Act (ESA) implementing regulations, the agencies have announced that the final versions of the rules are ready for publication in the Federal Register.

On July 25, 2018, USFWS published a proposal to remove that agency’s blanket prohibition on “take” of species listed as threatened (hereafter, the Blanket 4(d) Rule) and to require species-specific rules addressing take.  The same day, USFWS and NMFS published proposals to revise regulations governing species listings, delistings, and designation of critical habitat (listing rules), and regulations governing interagency consultations under ESA section 7 (consultation regulations).

The Services received tens of thousands of comments on the proposed regulatory revisions, and the proposed revisions have been under review with the Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order (EO) 12866  since December 2018. On August 2, 2019, OIRA completed its EO 12866 review of USFWS’ revision to the Blanket 4(d) Rule, and the final rule was released to be published in the Federal Register.  On August 9, OIRA completed its EO 12866 review of the Services’ revisions to their listing rules and consultation regulations.

The ESA regulatory reform package arguably represents the most significant change in ESA implementation in recent memory. The final rules have been submitted to the Federal Register, but no publication date has been given.  Additional updates on this topic will appear here, when available.

USFWS Moves Towards Including Qualitative Criteria in All Species Recovery Plans


The Palos Verde blue butterfly is one of the species affected by the proposed Recovery Plan revisions. (Jane Hendron/USFWS) 

The U.S. Fish and Wildlife Service (USFWS) is systematically revising species recovery plans issued under the Endangered Species Act (ESA).  On August 6, 2019, USFWS published three notices of availability announcing public comment periods on its draft revisions to 70 recovery plans covering 121 species across the United States. 


Recovery Plans are intended to guide and coordinate conservation efforts for listed species by recommending research and management actions.  ESA section 4(f) requires each recovery plan to incorporate “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.”  16 U.S.C. § 4(f)(1)(B)(ii).  The Department of the Interior has established an Agency Priority Performance Goal of 100 percent of all USFWS recovery plans having quantitative criteria for identifying when a species has recovered by September 30, 2019.  As of June 2019, 70 percent of a total of 567 recovery plans contain qualitative criteria indicating when downlisting or delisting is warranted.  USFWS indicated that it is unlikely to meet its goal by the fast-approaching deadline “due to the size and complexity of the task, statutory requirements to provide opportunity for the public to review and comment, and extended clearance process associated with Federal Register notices.”  However, USFWS continues to issue quantitative criteria updates at a brisk pace, and Nossaman will continue to track these efforts.  Our prior reporting on these efforts can be found here and here.

Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog Critical Habitat

The U.S. Fish and Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach.

Western Carolina University photo/ John A. Tupy

The Supreme Court heard oral argument in the case on October 1, 2018.  The central issue in the case was whether an area that is not currently habitable by a species can be “critical habitat” for that species.  The Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

In its November 27, 2018 decision, the Court held that for an area to be designated “critical habitat” it must be “habitat” of the species.  Because the U.S. Court of Appeals for the Fifth Circuit Court concluded that “critical habitat” need not be limited to areas that are currently habitat, it did not give separate consideration to the meaning of the term “habitat.”  For this reason, the Court remanded to the Court of Appeals to consider the meaning of “habitat” in the first instance.  The Court also remanded the matter for the Court of Appeals to consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude the land arbitrary, capricious, or an abuse of discretion.

Prior to resolution of these questions on remand, the parties agreed to a consent decree that removed the private land from the species’ critical habitat designation, while preserving the remainder of the designated habitat.

In the Supreme Court proceedings, Nossaman represented the Energy and Wildlife Action Coalition and the San Luis & Delta-Mendota Water Authority, Coalition for a Sustainable Delta, and Western Growers Association as amici curiae in support of the landowners.

FWS Moves To Add Quantitative Measures To Recovery Plans

In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (“Service”) has put into action its internal plan to add quantitative criteria to recovery plans.  The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted.  In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has “recovered,” including the number of established populations that would make the species eligible for delisting, as well as the new requirement that a Tier 2 population of the species must persist for at least 20 years.  This is one of the first of the approximately 182 recovery plans that the Service anticipates updating and revising pursuant to the Interior Department’s “priority performance goals,” which commits the Service to revising all Endangered Species Act (“ESA”) recovery plans to include quantitative criteria by September 2019.

ESA recovery plans are often described by the Service as “non-regulatory guidance documents that identify, organize and prioritize recovery actions, set measurable recovery objectives, and include time and cost estimates.”  The Service’s push to add quantitative criteria to recovery plans is intended to address the often lacking criteria for when a species has recovered and is therefore eligible to be removed from the list of Endangered and Threatened Species.  At present, the majority of ESA recovery plans establish qualitative criteria which would allow a species to be downlisted from endangered to threatened, but do not establish delisting criteria.

In addition to the pupfish, the Service has issued proposed revised recovery plans for the Delhi sands flower-loving fly (Rhaphiomidas terminates abdominalis) and the Florida salt marsh vole (Microtus pennsylvanicus dukecampbelli), among others.  For many of these species, the new recovery/delisting criteria will likely be irrelevant, as the species continue to decline in population and remain far from any sort of recovery.  However, this move does address a notable deficiency in the existing ESA recovery plans and will be an important one for species whose populations have rebounded since listing.

Environmental Groups Seek Protection for Mountain Lions in Southern California

The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the “Commission”) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act.  The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that “there is no reliable estimate of mountain lion abundance in California,” but includes estimates for several populations within the evolutionarily significant unit the petition describes.  The boundary of the proposed evolutionarily significant unit encompasses the area south of I-80 in northern California and west of I-5, including the Central Coast and much of the Central Valley, and all of southern California south of I-15, including portions of San Bernardino and Kern Counties and all of Imperial, Los Angeles, Orange, Riverside, and San Diego Counties.

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Fish and Game Commission Adds Four Bumble Bees to Candidate List

On June 12, 2019, the California Fish and Game Commission (Commission) voted 3-1 that listing four subspecies of bumble bee may be warranted under the California Endangered Species Act (CESA).​  The decision was made after the Xerces Society, Center for Food Safety, and Defenders of Wildlife filed a petition to list the Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (Bombus franklini), Suckley cuckoo bumble bee (Bombus suckleyi), and western bumble bee (Bombus occidentalis occidentalis) as endangered species under CESA.

Western Bumble Bee

Presently, no insects are listed as threatened or endangered under CESA.  Both the California Office of Administrative Law and the California Office of the Attorney General have previously taken the position that insects cannot be listed under CESA.  CESA defines candidate, threatened, and endangered species as “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant.”  The list does not include insects.  Counsel for the Commission indicated that because the California Fish and Game Code defines fish as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,” when the Legislature enacted CESA rather than include insects among the families of species that could be listed, it intended to incorporate bees, butterflies, beetles, and other insects via the definition of fish.

Nossaman is representing a statewide coalition of farming interests in the proceedings that opposed candidacy for the four bumble bee subspecies.