Posts from 2011
Posted in Litigation

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 ...

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On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a ...

Posted in Listing

The Fish and Wildlife Service (Service) made a "warranted but precluded" finding (PDF) for the whitebark pine (Pinus albicaulis).  This finding means that the Service has determined that the whitebark pine should be listed, but that it will not currently list the species because there are other higher priority species in the queue and there is a lack of funding.  Therefore, the Service has added the whitebark pine to its candidates species list and will develop a proposed rule to list the species as priorities and funding allow. 

As we previously reported, the Natural Resources Defense ...

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Tags: Listing
Posted in Listing, Litigation

On July 12, 2011, the Fish and Wildlife Service (Service) announced that is strengthening a work plan to address a backlog in making listing determinations regarding numerous candidate species.  The work plan is part of a settlement agreement (Agreement) with WildEarth Guardians (WildEarth) and the Center for Biological Diversity (CBD), the two plaintiff groups that most frequently file suit on endangered species issues.  The Agreement builds on a multi-year work plan that the Service had previously filed in the U.S. District Court for the District of Columbia in May.

The Service ...

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

Posted in Conservation

On June 30, 2011, the Fish and Wildlife Service (Service) issued a revised recovery plan (PDF) for the Northern spotted owl (Strix occidentalis caurina).  Most people are familiar with the spotted owl because of the intense media attention it received during the 1990s when a fight erupted over whether to continue to allow timber harvesting in the forests of the Pacific Northwest, which conservationists argued was causing loss of critical habitat for the species.  The Service first issued a recovery plan for the spotted owl in 2008, and numerous parties challenged that plan in court.  In ...

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On June 30, 2011, the U.S. Senate confirmed Dan Ashe as Director of the U.S. Fish and Wildlife Service.  Ashe has held various positions with the Service over the past 15 years.  His immediate predecessor was Rowan Gould, who served as Acting Director beginning in February 2010 when then-Director Sam Hamilton passed away.  Though the position requires Senate confirmation, it has frequently been filled by career Service employees.  The Department of the Interior announced Ashe's confirmation in a press release, available here.

Over 38 members of the U.S. House of Representatives have introduced the Government Litigation Savings Act (H.R. 1996) to amend provisions of the Equal Access to Justice Act (EAJA) to limit recovery of attorneys’ fees and other expenses in cases brought against federal agencies.

EAJA was passed in 1980 to help individuals, groups or businesses with limited access to financial resources defend themselves against harmful government actions. Under EAJA, plaintiffs who prevail on their claims against the federal government may seek recovery of attorneys’ fees and certain ...

Posted in Listing, Litigation

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 ...

Posted in Conservation

A plan to remove four dams along the Klamath River, which flows from Oregon through California to the Pacific Ocean, has major proponents including the federal government, the States of California and Oregon, and a number of environmental groups.  But in a June 13, 2011 report (pdf), an independent review panel has raised serious questions regarding the likelihood that the dam removal proposal will achieve the principal conservation goal of increasing the population of Chinook salmon (Oncorhynchus tshawytscha) in the Klamath River system.

The panel acknowledged the potential ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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